1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.631 OF 2000 R.G.Joshi Petitioner versus State of Maharashtra Respondent Sugandha B. Deshmukh i/by A.V.Anturkar for petitioner. H.J.Dedhia, APP for State. CORAM : A.S.OKA, J. DATE : 24th June 2009 JUDGEMENT :- 1. Heard learned counsel appearing for the petitioner. The prayer in this petition is for quashing three criminal prosecutions pending against the petitioner for various offences i.e. sections 409, 467, 471 and 466A of the Indian Penal Code. 2. In 1946 the petitioner joined Government Service and with effect from 1st September 1982 the petitioner retired who was holding the post of Agriculture Officer. Initially a prosecution was launched in the year 1982 against the petitioner containing allegations of misappropriation. The said prosecution was withdrawn by the State Government and thereafter the present prosecutions have been filed from the year 1985 2 onwards. The grievance made in the petition is that three pending cases are being adjourned from time to time right from the year 1985-86 and no progress whatsoever has been made in the said three criminal cases. The counsel for the petitioner has placed reliance on the judgement and order dated 23rd/24th February 1997 passed by this Court in Writ Petition No.1426 of 1984 filed by the petitioner. The said civil writ petition was filed as the retirement benefits of the petitioner were withheld on the ground of pendency of criminal cases. He submitted that the present age of the petitioner is 82 years. He read out the Roznama of the cases and pointed out that the petitioner has been regularly attending the Courts but the trial has made no progress. He submitted that in view of the decision of the Apex Court in the case of Vakil Prasad Singh Vs. State of Bihar ([2009]3-SCC-355), the fundamental right of the petitioner of having a speedy trial has been infringed. He submitted that in the circumstances, a case is made out for quashing the proceedings of three cases by exercising powers under section 382 of the Code of Criminal Procedure, 1973. He submitted that the cases are pending for more than two decades. Even the witnesses may not be available and, therefore, no purpose will be served by continuing the prosecution. He submitted that continuation of the prosecution will cause undue harassment to the petitioner. The learned APP opposed the petition by contending that drastic orders of quashing the complaints cannot be passed considering the facts of the present case. 3. I have carefully considered the submissions. Learned counsel for 3 the petitioner has relied upon the decision of this Court in Civil Writ Petition No.1426 of 1984. He has relied upon the observations made by the Division Bench in the said decision which read thus :- "... ... The trial Magistrate, on this application, passed an order setting out that the prosecution desires to withdraw the charges against the petitioner in the public interest and, accordingly, permission is granted and the petitioner stands discharged. Faced with this application and the order, it was tried to be contended on behalf of the State Government that after withdrawal of this case, another case has been filed against the petitioner in the same court and that case is numbered as Case No.64 of 1986. We wonder how such a case can be filed when the Prosecutor has withdrawn the earlier case unconditionally. Apart from this aspect, Shri Singhavi, learned counsel appearing on behalf of the petitioner, is right in contending that this case instituted in 1986 in respect of alleged mis-conduct of 1980-81 cannot be taken into consideration for the purpose of withhelding the terminal benefits. The learned counsel urged that Rule 27(3) prohibits the State Government to rely upon the case instituted after a period of four years to deprive him of the terminal benefits. ... ..." 4. The Division Bench of this Court was not considering the merits of the pending criminal cases. The Division Bench was considering the action of the Government of withholding the retirement benefits on the ground of pendency of criminal cases. Therefore, the said observations cannot help the petitioner for the purposes of considering the prayer for quashing. 5. In the three cases the offences alleged relate to area of three different villages and the allegation against the petitioner is of misappropriation, fabrication of documents and fabrication of accounts. 4 6. The learned counsel appearing for the petitioner has relied upon the decision of the Apex Court in the case of Vakil Prasad Singh Vs. State of Bihar (supra). Paragraphs 24 and 25 of the said decision reads thus :- "24. It is, therefore, well settled that the right to speedy trial in all criminal persecutions (sic prosecutions) is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the proceeding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. 25. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time frame for conclusion of trial." 7. A perusal of the Roznama shows that it cannot be said that the cases were adjourned because of any default or non co-operation on the part of the prosecution. In two out of the three cases, the other accused were absent from time to time and, therefore, on some dates the case could not proceed. In view of what is observed by the Apex Court in the case of Vakil Prasad Singh (supra) the Court has to perform the balancing act upon taking into consideration all the attendant circumstances and 5 determine in each case whether the right to speedy trial has been denied. The Apex Court has further observed that the case can be quashed only on the Court being satisfied that the right to speedy trial of an accused is infringed. If the Court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interests of justice, in such cases, the Apex Court has observed, it is open for the Court to make appropriate order including an order of fixing of time frame for conclusion of trial. 8. The allegations against the petitioner are of misappropriation and fabrication of documents and accounts. If the nature of the allegations are considered notwithstanding some delay in disposal of the cases, at this stage, the complaints cannot be quashed and a time bound schedule will have to be fixed for disposal of the cases. If within the time granted by this Court the trials are not concluded, the petitioner can always file a fresh petition in this Court for the same relief of quashing on the ground of infringement of the right to have a speedy trial. 9. Hence, I pass following order :- (a) The prayer for quashing is rejected; (b) The learned Magistrate will proceed to expeditiously decide the three pending cases against the petitioner. The learned Judge will not grant an adjournment unless a really genuine case is made out for grant of adjournment; 6 (c) If prosecution is unable to trace out the witnesses, the learned Judge will not adjourn the cases for unreasonably long time; (d) The pending cases shall be decided by the concerned Court within a period of four months from the date on which a certified copy of this order is produced before the concerned Court or from the date on which the writ of this order is received, whichever is earlier; (e) If the cases are not disposed of within the time stipulated by this Court, it will be open for the petitioner to file a fresh petition for the same relief. If such fresh petition is required to be filed, it is obvious that while dealing with the fresh petition, this Court will have to consider even the delay in disposal of the cases till today; (f) The writ petition is disposed of on the above terms; (g) Considering the present age of the petitioner, on application being made by him, the learned Trial Court will grant exemption to the petitioner in all the three cases subject to compliance with usual terms and conditions and the presence of the petitioner shall be insisted upon only when it is absolutely necessary. (A.S.OKA, J.)