1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.732 OF 2006 Dilip Madhukar Patil. ….Petitioner Vs. The State of Maharashtra & Ors. …Respondents. ----- Mr. Niranjan Shimpi, for the Petitiner Mr. Suresh J. Thakkar, for the Respondent no.2 Mr. Pradeep Thorat, for the Respondent nos.4 and 5. Miss. S.V. Gajre, APP for the State. ---- CORAM: A.S. OKA, J. DATE: 9TH JULY, 2009. P.C.: 1. Heard the learned Counsel for the Petitioner, the learned Counsel for the respondent nos.3 and 4 and the learned APP for the State. 2. The Petitioner is first informant at whose instance the accused have been prosecuted for offence under Sections 324 and 114 of the Indian Penal Code. The challenge in this petition is to the order dated 28th April 2004 by which the learned Magistrate discharged the accused nos.3 and 4 on the ground that there is absolutely no material against them. This 2 court passed an order on 25th April 2006 directing the State to file an affidavit of the investigating officer indicating the material available against the accused nos.3 and 4. The said order was not complied with and therefore by subsequent order dated 23rd June, 2009, the investigating officer was directed to remain present personally and to file an affidavit. Accordingly, the concerned officer is present and has filed an affidavit. The concerned Officer has tendered apology for the default. In view of the apology tendered by the concerned officer, it is not necessary to take further steps in that behalf. The apology is accepted. 3. The submission of the learned Counsel for the Petitioner is that more than two years back this court directed to conclude of the trial expeditiously. He submitted that order of this court dated 1st March 2001 passed in earlier proceedings shows that a charge was already framed. He submitted that the application for discharge was not maintainable and in any event, no case was made out for passing an order of discharge. 4. I have considered the submissions and perused the affidavit filed by the concerned officer. In the affidavit it is stated that as the first informant was not knowing the accused nos.3 and 4, they have not been named in the first information report, but it was revealed during the investigation that the said accused are involved. When a query was made, the learned APP for the State on instructions states that none of the 3 witnesses have named the accused nos.3 and 4 and there is no test identification parade held. 5. In the circumstances, the learned Magistrate was justified in passing an order of discharge. It is true that in the order of this court passed on 1st March 2001 there is an indication that charge was framed in the year 1996. However, a true copy of the roznama annexed to the petition shows that the charge was framed on 20th October 2004 i.e. after the impugned order was passed. Hence, the application for discharge was maintainable. 6. Hence, there is no merit in the petition. The petition is rejected. In view of the earlier orders passed by this court, the trial is expedited and same shall be concluded before end of the year 2009. JUDGE