1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3308 OF 2008 Beg Yusuf Anir .... Applicant Vs. The State of Maharashtra & Ors. .... Respondents Mr. I.B. Singh, Advocate for Applicant Mr. P.P. Shinde, APP, for State CORAM : Smt. R.P. SondurBaldota, J. Date : 4th April, 2009 P.C. : 1. This application is filed under Section 482 Cr.P.C. for quashing Criminal Case No.246/PW/2005 (old C.C. No.217/P/1997) pending in the Court of Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Mumbai. The case arises out of C.R.No.789/1996 dated 18th October 1996 lodged by Azad Maidan Police Station, Mumbai under Section 465, 468, 471, 419, 420 read with 34 Indian Penal Code. 2. It is alleged in the complaint against the applicant that he had committed criminal breach of trust in respect of Indian Passport bearing No.G-261424 issued in the name of one Ms.Bhavika Parasmani Shah, by selling it to accused no.2, Abdul Ahmed Ibrahim Irani. The Passport had been entrusted to the complainant for the purpose of lamination. It is further alleged in the complaint that the applicant in 1 2 connivance with other two accused persons facilitated wanted accused Ms.Zahera Kasambhai Maknojia to travel to U.S.A. on the Passport of Ms.Bhavika P.Shah, impersonating her and thereby committed offence punishable under Sections 465, 468, 471, 419, 420 read with 114 Indian Penal Code. The applicant along with two accused persons alleged to have committed an offence under Section 3 and 12(a) of the Passport Act, 1967 by facilitating the departure of wanted accused Ms.Zahera Kasambhai Maknojia from India without valid passport. 3. The applicant contends that Dr. Parasmani Shah had handed over three Passports to him for lamination and the applicant had kept all three passports in a briefcase. On 22nd August 1996, when he was going towards Tardeo for laminating the Passports, on the way, as he needed money, he had gone to A.T.M. centre situate at Hong Kong Bank at Tardeo branch and withdrawn a sum of Rs.10,000/- from his account. He had kept the amount of Rs.10,000/- along with Passports in the briefcase, he was carrying. As he came out of ATM Centre, 2-3 miscreants pounced upon him and snatched his briefcase containing the amount of Rs.10,000/-, three Passports and other valuable papers. The applicant immediately lodged complaint with Police being F.I.R. No.244 of 1996 dated 22nd August 1996 with Tardeo Police Station. The applicant alleges that because the Passports were lost, 2 3 Dr. Parasmani Shah started harassing him and lodged a false complaint. 4. On 23rd August 1996, the applicant received an anonymous telephone call saying that Passports are lying at some particular place. He immediately reported the same to Tardeo Police Station. Tardeo Police deputed one Constable along with the applicant to visit the place as informed by the anonymous caller. The applicant and the Police Constable found that the Passports were lying underneath an unused car. The Police then got the panchanama prepared in respect of recovery of three Passports. Out of the three, the Passport of Ms.Bhavika P. Shah was partly damaged. Beyond this, the Police did not carry out any investigation into complaint of theft filed by the applicant. 5. The applicant had filed discharge application dated 16th October, 2000 which was rejected by the trial Court by the order dated 13th March 2002. Thereafter on 3rd August 2006, the applicant filed an application for dismissal of the proceedings which was also rejected by the order dated 3rd April 2007. 6. In the impugned proceedings, charges came to be framed against the applicant on 19th August 2002 i.e. about more 3 4 than 5 years after lodging of F.I.R.. Since then, the prosecution has been dragging its feet in conducting the trial. In the last 12 years evidence of not a single witness is complete. The examination-in-chief of P.W.1 was recorded on 2nd July 2003. Since then there has been no progress made in the case at all. The applicant however, has been diligently attending all the dates of the Court. The applicant alleges that the prosecutor has been delaying the prosecution with malafide intention of keeping the applicant under incarceration as long as possible. He points out that most of the witnesses which were cited by the Police are not available for evidence. 7. Since it was complained that no progress was being made since July 2003, the State was directed to file an affidavit stating reasons for lack of the progress in the matter. Accordingly affidavit dated 19th January 2009 was filed. This affidavit dealt with issue, only cursorily. At paragraph 10, it is stated that prosecution has cited 14 witnesses and summons have been served on only 5 witnesses. Out of the said 5 witnesses, 3 have expired. Six of the witnesses are not traceable. This would mean that out of 14 witnesses, 9 are not available to the prosecution for examination in the Court. The State alleges that the trial is delayed on account of the accused persons themselves. Since the affidavit did 4 5 not deal with the question of delay in hearing of the case properly, the State was directed to file an additional affidavit, which came to be filed on 6th March 2009. This affidavit shows that the matter is adjourned from time to time either because the Court is vacant or because of non availability of the Investigating Officer or non availability of witnesses. Paragraph 5 of the additional affidavit gives list of 14 witnesses. Out of 14 witnesses, two main witnesses i.e. Dr.Parasmani Shah, Shri Sanjeev Pujari are not traceable. Though the prosecution is seen to be dragging it's feet, the entire blame for delay in trial cannot be placed at it's shoulder. Therefore, the only directions which this Court is inclined to issue to the trial Court is that the proceedings be disposed off as expeditiously as possible preferably within a period of six months from today. With the above directions, the Criminal Application is disposed off. ( Smt. R.P. SondurBaldota, J.) 5