1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 811 OF 2009 01. Jagdish Anant Naik, age 67 years, occup. retired Govt. Servant, r/of 51-C, Indira Nagar, Solapur. 02. Deorao Vyankatesh Shobhane, age 69 years, occupation : retired Government servant, R/of 178 NIT Lay Out,Trimutri Nagar, Ring Road, Nagpur. 03. Nazir Ahmed Maqbool Bagwan, aged 62 years, occup.retired Government Servant, resident of Gul Hayat Bungalow, Warunji Phata, Patan Road, Karad, District Satara. 04. Jailal Ganeshlal Kasliwal, aged 60 years, occup.retired Government Servant, r/o 22, Vinayak Adarsh Housing Society, Tilak Nagar, Aurangabad. 05. Sanjeevan Ramrao Ahankari, age 57 years, occup. Govt. 2 Servant, r/of Samarth Colony, Nideban, Degloor Road, Udgir, District Latur. Petitioners. versus 01. The State of Maharashtra 02. The Secretary, Ministry of Agriculture, Animal Husbandry, Dairy Development & Fisheries, Mantralaya Annexe, Bombay-32 03. The Director General, Anti-corruption Bureau, Bombay- 400 038. 04. The Deputy Superintendent of Police, Anti Corruption Bureau, Latur. 05. The Commissioner of Dairy Development Department,Govt. of Maharashtra, Near Worly Dairy, Worli Sea face, Bombay- 400 032. Respondents. ------ Shri A.G. Godhamgaonkar, Advocate, for petitioners. Shri K.M. Suryawanshi, A.P.P. for the Respondents. 3 Coram : P.R.Borkar,J. Date : January 19, 2010 JUDGMENT 01. Rule. By consent of the learned Advocates for the parties, rule made returnable forthwith and the writ petition is heard finally at the admission stage. 02. This writ petition is filed by original accused Nos.3, 4, 5, 7 and 8 in Special ACB Case No. 1 of 2005 (old Special Case No.3 of 1991) pending on the file of the learned Special Judge and Additional Sessions Judge, Udgir, District Latur, for offences punishable under Sections 120-B, 409, 420, 465, 468, 477-A and 101 read with Section 34 of Indian Penal Code, and under Sections 5(1)(c)(d) along with Section 5(c) of the Prevention of Corruption Act, 1947. The petitioners have prayed that the prosecution against them be dropped and quashed. 03. Some of the facts giving rise to this prosecution may be stated as below. Present Petitioner No.1 Jagdish (original accused No.3) was 4 the Accounts Officer. Petitioner No.2 Deorao (original accused No.4) was the Stores Officer. Petitioner No.3 Nazir Ahmed (original accused No.5) was the Deputy Manager (Dairy Milk) and in charge Store Officer. Petitioner No.4 Jailal (original accused No.7) was the Store Supervisor. Petitioner No.5 Sanjeevan (original accused No.8) was the Store Keeper. The case arises out of Udgir Dairy Scheme. 04. It is the case of the prosecution that writ petitioners and other original accused persons hatched conspiracy and committed various offences, such as, falsification of account, criminal breach of trust, corruption etc. during the period March 1981 to July 1982. It is alleged that bogus spare parts of diesel generator sets were purchased for higher prices. Spare parts of air compressors were purchased for higher rates, false bills of cleaning of water softening plant were prepared and thus in all there was criminal breach of trust in respect of amount of Rs.2,35,046/=.During the period 8.7.1980 to 23.2.1982, original accused No.1 Syed Mahammad Syed Ibrahim was the Dairy Manager, Udgir and was also holding additional charge of General Manager, Govt.Dairy Scheme, Udgir, during the period 4.10.1980 to 5 23.2.1982. Since there were allegations of mal- practices in respect of purchase of spare parts, the Chief Vigilance Officer, so also Internal Auditor, Dairy Scheme, Worli have made enquiries and it was found that there was corruption on large scale and therefore, the Commissioner, Dairy, Government of Maharashtra sent the matter for enquiry to the Anti Corruption Bureau. The Head office of the A.C.B. handed over enquiry to its unit at Osmanabad. The enquiry was carried out by Sarvashree C.N.Shinde and G.B. Suryawanshi, the then Police Inspectors, Anti Corruption Bureau. Thereafter, investigation was continued Shri N.V. Yerekar, Deputy Superintendent of Police, Anti Corruption Bureau, Latur and he lodged the complaint on behalf of the State against accused persons for having committed various offences as stated above. 05. Further investigation was carried out by Shri N.P.Gadade,Police Inspector, A.C.B. Thereafter, Shri S.N. Gute Deputy Superintendent of Police, A.C.B. Latur, completed the investigation and filed charge sheet in the Court on 22.2.1991. The case was registered as Special case No. 3 of 1991 and later on it was renumbered as Special (ACB) case No. 1 of 2005. 6 06. It is the case of the present petitioners that for no fault on their part, they have been prosecuted and the prosecution is pending for number of years as a result of which even though they have retired, their pensionery benefits are withheld. During this period, all other accused, except accused No.11 Pankajkumar Shah, had expired. Accused No.11 was discharged by the Supreme Court in Criminal Appeal No.1067 of 2008 filed by him. The judgment is reported in AIR 2008 SC 3077. (Pankaj Kumar vs. State of Maharashtra). For the purpose of present petition, Learned Advocate Shri A.G. Godghamgaonkar mainly relied upon the said judgment. 07. It is stated that the petitioners were only ministerial officers and were not the persons who are actual beneficiaries of the alleged offences. It was the power of the General Manager (accused No.1) to take all policy decisions. The learned Advocate also took me through the entire charge-sheet which is produced along with the petition and submitted that by this time, accused Nos.1,9,10 and 12 who were the real offenders have expired. No stay was operating and even then the original case did not proceed further. It 7 is submitted that Writ Petition No. 149 of 1999 was filed by accused Nos. 11 and 12 and they had carried the matter further to the Supreme Court, but since there was no stay either when the matter was pending before High Court or subsequently in the Supreme Court, the trial ought to have proceeded further. However, at no point of time prosecution showed any anxiety to proceed with the matter. In the circumstances, it is argued on behalf of the Writ Petitioners that this petition be allowed and the prosecution as against them be quashed and set aside. 08. It is also submitted that there is violation of Article 21 of the Constitution inasmuch as there was no speedy trial. The trial has been pending since last 19 years and thereby fundamental rights of the petitioners are affected. Shri Godhamgaonkar, the learned Counsel for the petitioners relied upon various observations of the Supreme Court in the case of Pankaj Kumar (supra) The Supreme Court ultimately discharged Pankaj Kumar from the prosecution. 09. On the other hand, learned A.P.P. Shri K.M. 8 Suryawanshi has argued that original accused Nos. 1 to 9 were the government employees. He submitted that though there was delay in conducting the trial, on 68 times accused were absent and on 25 occasions Advocates of the accused were absent. He pointed out that on 7 times the court was not available and on six occasions the court was busy with other matters and only on 8 time, the A.P.P. in the trial court was absent. Some accused had filed writ petition and then dragged the matter to the Supreme Court. In the circumstances, according to learned A.P.P., it is only the accused and not the prosecution, who have been responsible for delay. Learned A.P.P. Shri Suryawanshi referred to the copy of the roznama produced on record. Thus, the delay is attributed to the accused persons. It is said that the accused hatched conspiracy, falsified the accounts and made corruption and,therefore,they cannot avoid their responsibility. They have not followed the rules and guidelines. It is specifically pointed out that Shri S.V. Jadhav, Departmental Engineer, had refused to sign the bills on the ground that he was not consulted while accepting the spare parts purchased and thereafter stamps of his name were scored and signatures of store officer were obtained. There is also evidence of Shri 9 V.D.Kotnis, Engineer, Dairy Department, Head Office, Worli, which showed that the spare parts purchased by the accused persons were bogus and were not necessary. It is submitted by learned A.P.P. that there was difference of Rs.2,03,705/= in the rates of spare parts of Kirloskar Company and the spare parts purchased by accused persons. In fact, Kirloskar company had agreed to do maintenance for 3000 hours and there was no necessity to purchase new spare parts. In spite of that, after running the generator only for few hundred hours, spare parts which were not required were purchased. Thus, in view of conspiracy, none of the accused deserve discharge from the prosecution. Learned A.P.P. also referred to the report dated 11.1.2010 of the Deputy Superintendent of Police, Anti Corruption Bureau, Latur and also the order of refusal to discharge the present petitioners passed by the learned Additional Sessions Judge, Latur on 26.11.2009 on applications below Exhibits 256,260 and 258 filed by present petitioners for discharge on the basis of discharge of accused No.11 Pankaj Kumar by the Supreme Court from the prosecution. 10 10. So far as discharge of accused No.11 Pankaj Kumar and quashing the proceedings against him is concerned, the copy of judgment of the Supreme Court which is on record, and more particularly paragraph 18 thereof, indicates that accused No.11 was son of accused Nos. 10 and 12. The FIR was recorded on 12.5.1987 for offences allegedly committed in the year 1981 and after unwarranted prolonged investigation was carried out, charge sheet was submitted on 22.2.1991. Nothing happened till April 19, 1999, when the appellant and his deceased mother filed criminal writ petition seeking quashing of proceedings before the trial court. It is further observed that there was no explanation coming forth for delay in investigation and the reason why the trial did not commence for eight long years. But, the main reason for quashing the proceedings against accused No.11 was that he was a young boy of about eighteen years of age in the year 1981 when the acts of omission and commission were allegedly committed by the concerns managed by his parents who had died. It was observed that in such circumstances, extreme mental stress and strain of prolonged investigation by the Anti Corruption Bureau and the sword of damocles hanging perilously over his head for over fifteen years must have wrecked his 11 entire career. It is further observed that the prosecution has failed to show any exceptional circumstances, which could possibly be taken into consideration for condoning the prolongation of investigation and the trial. In paragraph 19, the Supreme Court has observed that for the view taken, it was unnecessary to go into the merits of the accusations against the appellant as also the question of his age at the time of commission of alleged offences. Consequently, the appeal was allowed and the proceedings against the appellant were quashed. 11. In the case of accused No.11 Pankaj Kumar, the Supreme Court also considered the case of Som Mittal vs. Govt. of Karnataka 2008 AIR SCEW 1640 and other cases. The Supreme Court in paragraph 15 of its judgment also referred to its earlier decision in the case of A.R.Antulay versus R.S. Nayak 1992 AIR SCW 1872 wherein eleven propositions were laid down with a note of caution that those were not exhaustive and were meant only to serve as guidelines. Shri A.G. Godhamgaonkar, learned Advocate for the petitioners in the present petition heavily relied upon paragraphs 15 and 18 of the judgment in the case of Pankaj Kumar discussed earlier. 12 12. In the case of A.R. Antulay, it is observed that one of the major circumstances to be considered is who is responsible for delay in trial and while determining whether undue delay has occurred, one must have regard to the attending circumstances, including nature of the offences, number of accused and the witnesses, workload on court concerned etc. It is true that in the present case, absolutely there is no explanation why there was delay of ten years between lodging of FIR on 12.5.1987 till submission of the charge-sheet to the Court on 22.2.1991. However, there is explanation for subsequent delay. The certified copy of the roznama is placed on record by petitioners. It is clear that charge sheet was received by the Court on 11/12.4.1991 and summons were issued to accused Nos. 1 to 11. Summons could not be served on accused No.8. Accused Nos. 4,6,9 did not turn up in spite of service of summons and, therefore, bailable warrants were required to be issued against them returnable on 26.7.1991. It appears that from 26.7.1991 onwards, the matter was adjourned for appearance of accused No.9. But, it is also clear that all the accused were never present on any particular date. There were always applications on behalf of 13 some or other of the accused for exemption which were granted. It appears that till 19.7.1993, the matter was adjourned for appearance of accused No.9 and on 27.8.1993 the matter stood assigned to another court. Thereafter, fresh summonses were issues to the accused and the matter continued for their appearance and by 20.8.1994 all accused, except accused No.9, appeared. It is stated before this court that accused No.9, who subsequently expired, was bed ridden and was unable to move and so Non Bailable Warrant could not be served on him by police. In the meantime, accused No.2 also expired. Application Exhibit 98 was filed by the State on 27.11.1995 stating that accused No.9 was ill and was unable to move from his place and the matter was placed for orders on Exhibit 98 and also Exhibit 96 which was the pursis by Advocate Shri Naikwade stating that he was appearing for accused No.9. It appears that ultimately, on 6.3.1999 order was passed on Exhibit 98 with direction for re-issuance of summons to accused No.1. At Exhibit 125, there is police report dated 9.8.1999 regarding non bailable warrant issued against Respondent No.9. Thereafter the matter continued on board for orders on Exhibit 125. 13. It appears that from 26.7.2000 to 8.5.2006, 14 the record and proceedings was not before the trial court presumably, the same was before the High Court, as we find from roznama dated 8.5.2006 that the Record and proceedings was received back from the High Court, through Sessions Judge, Latur. Thereafter some accused were present with their Advocates. Case was renumbered as Special Case No.1 of 2005 as a result of which, again steps were required to be taken for securing presence of some of the accused. Since accused No. 3 was absent and so, N.B.W. was issued against him. Even other accused persons were not regularly present. Non bailable warrants were required to be issued against accused Nos. 2 and 6, so also against accused Nos. 5, 7 and 11. Reports from police were not received. On 10.1.2008, accused Nos. 3,4,7 and 8 were present with their Advocate, but proclamation was issued on the same day against accused No. 11 Pankaj Kumar for attachment of his property, however on same day by application at Exh. 225, personal exemption of accused No. 11 was sought by his Advocate till decision by the the Supreme Court of the appeal filed by accused No.11 Pankaj Kumar. The interim order passed by the Supreme Court was brought to the notice of the trial court. On that day, police report regarding non bailable warrant issued against 15 accused No. 4 was received. Some of the accused were released on fresh bonds. It appears from the roznama that on 10.1.2008, non bailable warrant were issued against some of the accused and order of proclamation as prayed by learned A.P.P. vide Exh.224 was passed. 14. Thus, it appears from the roznama that most of the time was spent in securing presence of the accused persons. Considering the roznama, in my considered opinion, it is not that all accused persons were present in court at a time and the court was able to frame charge against them. No doubt, in this case, 19 years have elapsed after submitting of charge- sheet. Thus, after the FIR is filed, almost 29 years years are over. If we see the roznama, it can hardly be said that blame for delay in trial lies with the prosecution. So, as held in A.R. Antulay's case (supra), the main question is who is responsible for delay and definitely it cannot be said that either the court or the prosecution was responsible for such delay. The prosecution could have been blamed only if accused were available, charge had been framed and there was failure on the part of the prosecution to adduce evidence or keep the witnesses present. 15. If we consider the ratio laid down by the 16 Supreme Court in the case of Pankaj Kumar (supra) and other cases referred to therein, the question who is to be blamed for delay in trial is concerned, will have to be answered against the accused persons, because the accused time and again created obstacles in conducting the trial by not remaining present at a time. After considering seriousness of various allegations and the reports of the Investigating Officer which are placed on record and answers given to the queries made by the court, in my view, ends of justice would be served if the trial is expedited by laying down time frame for decision of the case. 16. In the result, writ petition is partly allowed. The learned Special Judge is directed that he should proceed to frame charge against the present petitioners-accused on next date i.e. 2.2.2010 (which is said to be the date given to the accused for appearance). The petitioners-accused shall remain present before the trial court on that day and on subsequent days fixed in the matter. Thereafter the matter shall be taken up for day-to-day hearing within one month. In any case, the matter shall be decided on or before 30.4.2010. The prosecution is also directed to keep all witnesses present and not to seek 17 unnecessary adjournment. It shall make special efforts for securing presence of the witnesses on dates fixed. It is made clear to the Trial Court that unless there is very very exceptional reason, time limit will not be extended. 17. With directions as above, writ petition is disposed of. Rule made absolute, accordingly. pnd/criapl811.09 (P.R.BORKAR, J.) 18