1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 486 OF 2010 1. Nazir Ahmed Maqbool Bagwan, Age : 63 Years, Occu. : Retired, Govt. Servant, R/o Gul Hayat Bunglow, Warunji Phata, Patan Road, Karad, Dist. Satara. 2. Jailal S/o Ganeshlal Kasliwal, Age : 61 Years, Occu. : Retired, Govt. Servant, R/o 22, Vinayak Adarsh Housing Society, Tilak Nagar, Aurangabad. 3. Sanjeevan Ramrao Ahankari, Age : 58 Years, Occu. : Govt. Servant, R/o Samarth Colony, Nideban, Degloor Road, Udgir, Dist. Latur. .. .. Petitioners Versus 1. The State of Maharashtra. 2. The Secretary, Ministry of Agriculture, Animal Husbandry, Dairy Development, and Fisheries, Mantralaya, Mumbai. 2 3. The Director General, Anti Corruption Bureau, Bombay - 400 038. 4. The Dy. Superintendent of Police, Anti Corruption Bureau, Latur. 5. The Commissioner of Dairy Development Department, Govt. of Maharashtra, Near Worli Dairy, Worli Sea face, Bombay. .. .. Respondents Shri A. G. Godhamgaonkar, Advocate for Petitioners. Shri T. S. Lodhe, Advocate for Respondent/State. CORAM : A. V. NIRGUDE, J. DATE : 22ND OCTOBER, 2010. PER COURT : . The petitioners are accused in Special Case No. 03/1991 (New ACB Case No. 01/2005) pending on the file of learned Special Judge, Udgir, District Latur. This case has chequered history and it must be narrated: On 12th May, 1987 an offence was registered against the applicants and nine others alleging that they had misappropriated funds of the Government during the course of 3 their duty by creating false bills and by procuring fake and substandard spare parts for the milk dairy established at Udgir. The applicants were original accused Nos. 5, 7 and 8 and they were at the relevant time working as store officer, store supervisor and store keeper respectively. After the investigation was over a charge sheet was sent to the Court on 22.02.1991 against the applicants and nine others. As per the charge sheet it is alleged that one Sayyed Mohammed Sayyad Ibrahim was working as Manager of the Milk Dairy at Udgir during the relevant period of 1980 to 1982. He was also holding additional charge of the General Manager. During this time he made purchases of spare parts required for the machinery installed at the dairy from the original accused Nos. 10, 11 and 12 and thereby caused loss to the Government to the tune of more than Rs. 2,00,000/-. While committing this offence, it is alleged, present applicants and others shared his common intention. They actively supported him in procuring the spares and in getting the bills for the purchase of spare parts sanctioned. 2. Although, the charge sheet was filed in 1991, there was virtually no progress till 1999 in the case. For the first time in 1999, the original accused No. 11 filed Writ Petition No. 149/1999 4 before this Court and sought quashing of the case as against him. It was his case that during the relevant period, he was a minor and his parents the original accused Nos. 10 and 12 had issued the bills for claiming price of the goods which were allegedly to be spurious and substandard. However, his writ petition came to be dismissed on 4th May, 2006. Though, this writ petition was pending before the Court, their occurred virtually no change in the situation in the lower Court. The case remained pending without trial. In the mean time original accused Nos. 1, 2, 9 and 12 died. The original accused No. 11 then took this matter to the Supreme Court by filing a Special Leave Petition No. 2842/2006, which was registered as Criminal Appeal No. 1067/2008. 3. During the pendency of that criminal appeal, in 2007 the present applicants and original accused Nos. 3 and 4 moved an application before the Trial Court on 26th November, 2007 urging the Court to expeditiously try and dispose of the case against them or split the case as against them from the case against other accused who were not attending the Court. They pointed out that the original accused No. 11 had obtained stay from the Supreme Court to the proceeding of the case as against him and the original accused No. 6 was unable to move due to old 5 age and ailment and had remained absent continuously. This application was not allowed by the learned Judge of the Trial Court. The stalemate before the Trial Court continued further. 4. In the mean time, even the original accused No. 6 died. On the other hand the original accused No. 11 succeeded before the Supreme Court in getting the proceeding against him quashed on 11.07.2008. In view of this, out of 12 accused, the case remained pending only against five accused namely original accused No. 3, 4, 5, 7 and 8 and they were waiting for disposal of the special case. The accused had also filed a writ petition before this Court bearing W. P. No. 811/2009 for getting entire proceeding quashed against them. This Court, however, only partly allowed their writ petition and directed the learned Judge of the Trial Court to expeditiously try and dispose of the special case. The outer limit given to the Trial Court was 30th April, 2010. This order was passed on 19.01.2010. 5. In the mean time, present applicants and remaining two accused approached the Supreme Court challenging the judgment and order passed by this Court in Writ Petition No. 811/2009. The Supreme Court did not entertain their application, but specifically clarified that in case the trial would 6 not conclude by 30th April, 2010, the applicants and other accused would be at liberty to approach the High Court for appropriate directions. Accordingly, the present writ petition was filed on 03.05.2010 and sought quashing of the entire special case against them invoking Article 21 of the Constitution of India. 6. This Court had expected the Trial Court to try and dispose of the case before 30th April, 2010. But the prosecution could not start recording evidence till 29th April, 2010. The investigating officer has been finding it extremely difficult to secure presence of the prosecution witnesses. So unfortunately, he himself recorded his own deposition as prosecution witness No. 1. On the next date i. e. on 30th April, 2010 the outer limit given by this Court for disposal of this case expired and so the learned Judge of the Trial Court made an application seeking further time to dispose of the case which is still pending. 7. In this background whether the applicants could make out a case for quashing of the special case? The answer to this question is in affirmative. Even though the limit given by this Court to dispose of the 7 special case expired on 30th April, 2010, the proceedings of the special case still continued. On one hand the learned Judge of the Trial Court made an application for extension of the time limit and on the other hand the prosecution could examine as many as 12 witnesses during the period between 29th April, 2010 till 27th September, 2010. 8. At the initial stage, when I heard the submissions of the learned advocate appearing for the petitioners on 05th May, 2010, I directed the prosecution to submit a detail report as to how many witnesses they would be able to examine in this case and how many of them would be relevant for proving the case as against the remaining accused including the petitioners. Despite of this specific and despite reminders, the prosecution has not filed the pertinent report as sought by the Court. Belatedly today I received a report sent by the Deputy Superintendent of Police, Anti Corruption Bureau, Latur, in which it is stated that the witnesses in the case were either dead or are not available due to ill health, etc. Despite of this, as said above, so far the prosecution could examine 12 witnesses including the investigating officer. Although, the prosecution has so far examined only 12 witnesses, the report erroneously mentioned 8 that depositions of 25 witnesses were recorded before the Trial Court. This statement in the report is clearly an error. 9. The question I was asking to the prosecution again and again was, whether in the facts and circumstances of the case and in view of the delay that has caused in the beginning of the Trial, the prosecution would be able make available all the relevant witnesses before the Trial Court? answer remains elusive. So I asked the learned advocate appearing for the petitioners to get copies of the depositions of the witnesses who were examined before the Court. With the help of the learned advocate of the petitioners I went through the depositions and found that practically no relevant material so far has been brought on record against the present petitioners. Even as against other two accused who are not before this Court today there is hardly any material. 10. As indicated above, though hearing and disposal of the case was expedited, time and again, the case is proceeding by snails speed. There appears no meaningful direction to the prosecution case. The prosecution has failed to inform the Court as to who amongst prosecution witnesses are relevant and material against the present applicants and the remaining two accused and out of 9 them how many would be examined in immediate future. I am told, that next date of the Trial is 27th October, 2010. From the latest report of the Deputy Superintendent, it is seen that even now there is no possibility of recording of depositions of any witnesses. It is thus, seen that the prosecution is not keen to conduct the case vigorously and earnestly. It is going on before the Trial Court aimlessly and there appears no hope of success for them. 11. Unfortunately, on the other hand the learned Judge of the Trial Court does not appear to be in control of the proceedings of the case. It seems, he has been hopelessly allowing the prosecution to record depositions of the witnesses in piece meal fashion. He has not been showing his earnestness in getting the disposal of the case either. If the prosecution and the learned Judge of the Trial Court have their way, they would keep the special case pending for next one or two years more. In other words, the prosecution as well as the learned Judge of the Trial Court are not really concerned as to whether the petitioners and other accused would be able to get speedy trial. 12. As said above, the case is pending since last 23 years with no hope of getting it concluded in near future. I think this is 10 really an alarming situation. Thus the trial is inordinately delayed. Article 21 guarantees protection personal liberty. It says that no person should be deprived of his life except according to procedure prescribed by law. The Supreme Court interpreted Article 21 in number of cases such as : Maneka Gandhi v. Union of India AIR 1978 SC 597, Hussain Khatoon v. Home Secretary State of Bihar AIR 1979 page 1360 and emphasized the need for speedy investigation and trial as both are mandated by the letter and spirit of the provisions of Criminal Procedure Code and Article 21 of the Constitution of India. It categorically held that when Article 21 expects a procedure established by law to be followed well before depriving a persons life or liberty. It held that such procedure should be reasonable, fair and just and it should also be speedy. Thus the Supreme Court held that a speedy trial means expeditious trial which is essential part of fundamental rights, life and liberty enshrined in Article 21. 13. The Supreme Court in the case of Pankaj Kumar v. State of Maharashtra and others reported in AIR 2008 SC 3077, (this judgment is given in the Criminal appeal No. 1067/2008 filed by the original accused No. 11) held in para 15 thus : 11 "15. The exposition of Article 21 in Hussainara Khatoon's case (supra) was exhaustively considered afresh by the R.S. Nayak & Anr.11. Referring to a number of decisions of this Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are: (i) 11 (1992) 1 SCC 225 13 fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial; (iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is -- who is responsible for the delay?; (iv) while determining whether undue delay has occurred (resulting in violation of right to speedy 12 trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on-- what is called, the systemic delays; (v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution 14 become persecution, again depends upon the facts of a given case; (vi) ultimately, the court has to balance and weigh several relevant factors--'balancing test' or 'balancing process'--and determine in each case whether the right to speedy trial has been denied; (vii) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial; 13 (viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint; (ix) an objection based on denial of 15 right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis. 14. Having regard to all the guidelines mentioned above, it can safely be said that for no fault on the part of the petitioners and other two accused, the prosecution has delayed the case. The prosecution alone is responsible for delay that has caused in this case. 15. As stated above, the prosecution has not explained the delay as to why they could not record deposition of all material witnesses at relevant time. Besides, whatever, they have so far 14 done has made no difference to their own case. Even, in future they are not likely to bring on record any evidence that would go against the petitioners and other two accused. I am therefore, fully convinced that here is a case, where the plea of the petitioners should be favourably considered and the case against them should be quashed. 16. The writ petition is allowed. The ACB No. 1 of 2005 (Old Special Case No. 3/1991) pending against the petitioners stands quashed. The Rule is made absolute on the above said terms. [ A. V. NIRGUDE, J.] bsb/Oct. 10/ok