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CASE NO.: Appeal (crl.)  520-521 of 2008

PETITIONER: State of Maharashtra

RESPONDENT: Madhukar Wamanrao Smarth

DATE OF JUDGMENT: 24/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NOS. 520-521    OF 2008 (Arising out of SLP (Crl.) Nos. 5951-5952/2007) (With Crl.A.   522          /2008 @SLP (Crl.) No. 7157/2007) (With Crl.A.   523          /2008 @SLP (Crl.) No. 7158/2007) (With Crl.A.   524-527      /2008 @SLP (Crl.) No. 7159-7162/2007) (With Crl.A.   528          /2008 @SLP (Crl.) No. 7164/2007) (With Crl.A.   529          /2008 @SLP (Crl.) No. 8114/2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      In each of these cases challenge is to the bail granted to  the respondent by the Bombay High Court, Nagpur Bench.  Since all these appeals have a common matrix, they are taken  up together.  

3.      On the basis of allegations that the respondents were  guilty of having committed cheating, preparing forged and  false documents for the purpose of cheating, using the said  documents as genuine, abetment of crime, committing  criminal breach of trust by forming criminal conspiracy in  furtherance of their common intention, law was set into  motion.  

4.      They were convicted by the trial Court, and have  preferred appeals before the High Court and had prayed for  grant of bail by suspension of sentence in terms of Section 389  of the Code of Criminal Procedure, 1973 (in short the ’Code’).  The High Court primarily granted bail to each of the  respondents on the ground that bail was granted during trial  and the liberty was not misused. Further ground indicated  was that there was likelihood of delay in disposal of the  appeals. In the case of respondent-Madhukar it was stated  that the evidence appeared to be scanty against him.

5.      Questioning correctness of the order passed in each case,  learned counsel for the State submitted that there was large  scale of manipulation of records resulting in manipulation of  results of the candidates and each of the respondents had a  definite role to play. Apart from the cases where they have  been convicted, large number of connected cases are also  pending. In the case of respondent-Yadav Nathoba Konchade,  two cases under the Prevention of Corruption Act, 1988 (in  short ’PC Act’) were pending. In one case the said accused had  offered bribe to the investigating officer and was caught red  handed. It was submitted that considering the gravity of the

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offence the sentences were directed to run consecutively in  terms of Section 31(1) of Code. It was stated that the High  Court was misled in the case of respondent-Madhukar who  made a false statement before the High Court that he had  deposited fine amount while in fact he had not done so as  would be apparent from the second order. It was essentially  submitted that without indicating any plausible reason, much  less, the reasons contemplated under Section 389 of the Code,  the bail has been granted.  The seriousness of the allegations  for which the accused respondents have been already  convicted has been completely lost sight of.  

6.      Learned counsel for the respondents on the other hand  submitted that the parameters for grant of bail and  cancellation of bail are different. It was submitted that some of  them are very elderly persons and have retired from services.  It is not a case where any irrelevant factor has been taken into  consideration. It is pointed out on behalf of respondent- Madhukar that the only link the said accused is stated to have  centres round two chits which were exhibited. They did not in  any way establish the involvement of the accused in the  alleged crime. That is why in his case the High Court observed  that the evidence is scanty.  

7.      In reply, learned counsel for the State submitted that in  some cases, for example, accused Shamrao Kisanrao  Kamlakar the ground for releasing him was the grant of bail to  co-accused. Further, the plea taken by Madhukar is not  correct inasmuch as one of the co-accused has categorically  stated that pressure was exerted by accused Madhukar for  doing the illegal acts.   

8.      The factual details involved are as follows:                  

Sl. N o

1.

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2.

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3.

4.

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5.

6.

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7.

8. Case  Name  & No.

State of  Maharashtra  v. Sunil  Mishra

State of                 Maharashtra       Vs.

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Rajendra  Yadav

State of  Maharashtra      Vs. Shailesh  Tupkari

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State of  Maharashtra       Vs. Mahendra Goti

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State of  Maharashtra     Vs. Mohd. Ishaq

State of  Maharashtra     Vs. Laxmikant Zade

State of  Maharashtra    Vs Atul Gudadhe

State of  Maharashtra    Vs Parag Bagde

Case No.

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Regular  Criminal Case No. Regularrr  Crl. Case N.372/02

Regular Criminal Case No. 380/02

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ReRegular  Regular  Criminal Case No. 368/2002

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RRRegular  

Regular  Criminal Case No. 361/2002

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Acquittal

Acquittal

Acquittal

Acquittal Date of  conviction

10.1.2007

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1.3.2007

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18.6.2007

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12.2.08

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Acquittal

Acquittal

Acquittal

Acquittal

Date of  bail

22.2.07

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23.3.0 7

30.6.0 7

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Imme- Diately Taken  In  Custody On  12.2.08 And is  In jail

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Acquitt- al

Acquit- Al

Acquitt- Al

Acquitt-

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Al Sentence  undergone

43 days

22 days

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12 days

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In custody

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Acquittal

Acquittal

Acquittal

Acquittal Date of supply  of copy of the Judgment

No information

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4.3.2007

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20.6.2007

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14.2.2008

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Acquittal

Acquittal

Acquittal

Acquittal Conviction under  section

(A)     U/S 420 r/w S.34, 109 IPC S.248 (ii) Cr.P.C.

(B)     U/S 468 r/w S.34 IPC + S. 248(ii) Cr.P.C.

(C)     U/S 471 r/w 34 IPC + S. 248 (ii) Cr.P.C.

(D)     U/S 120B + S.248(ii) IPC

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Total  Imprisonment

(A)     U/S 420 r/w S. 34 IPC

(B)     U/S 468 r/w S.34 IPC

(C)     U/S 471 r/w S. 34 IPC

(D)     U/s 120B r/w S.109 and  S.34 IPC

(E)     U/s 409 IPC

Total imprison- ment

(A)     U/S 420 r/w Sec. 34 IPC

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(B)     U/S. 468 r/w S.34 IPC

(C)     U/S. 471 r/w S.34 IPC

(D)     U/S.120B r/w S.109 and S.34 IPC

(E)     U/S 409 IPC

Total imprison- Ment

(A)     U/S 420  r/w S.34 IPC

(B)     U/S 468  r/w S.34 IPC

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(C)     U/S 471  r/w S.34  IPC

(D)     U/S  120B r/w S.109 and  S.34 IPC

(E)     U/S 409 IPC

Total  Imprison- ment

Acquittal

Acquittal

Acquittal

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Acquittal Imprisonment

(A) RI for 6  years  And fine of  Rs.20000/- and in default  to suffer RI for 3  months

 (B)     RI for 5 years And fine of Rs.15,000/- in Default to suffer RI for 2 months   

(C) RI for 1 year and fine of  Rs.5,000/- in  Default to suffer RI for 1 month

(D)RI for 6 Months and fine Of Rs.2,000/- In default to  Suffer RI for 15 days

(sentences to  run consecutively)

12 years 6 months

(A)     RI for 4  Years and to  pay Fine of  Rs.20,000/- and  In default to  Suffer RI for  2 months

(B)     RI for 3  years And to pay fine Of Rs.15,000/- And in default to Suffer RI for 1

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Month

(C)     RI for 1 year And to pay fine Of Rs.5,000/- And in default to Suffer RI for one Month

(D)     RI for 6  months And to pay fine Of Rs.2,000/- And in default to Suffer RI for 15 Days

(E)     RI for 4  years And to pay fine  of Rs.20,000/- and In default to  suffer RI for 2 months (Sentences to  run consecutively)

12 yrs 6 months

(A)     RI for 3  Years and to  pay Fine of  Rs.10,000/- And in default To suffer RI for 2 months

(B)     RI for 5  years And to pay fine Of Rs.15,000/- And in default to  Suffer RI for 2 months

(C)     RI for 1 year And to pay Fine of  Rs.5,000/- and  In default to  suffer RI for 1 month

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(D)     RI for 6  months And to pay fine Of Rs.2,000/-  and  In default to  suffer RI for 15 days

(E)     RI for 3 Years and to  pay Fine of  Rs.20,000/- and  In default to  suffer RI for 3 months

12 yrs 6 months

(A)     RI for 3 Years and  to Pay fine of Rs.10,000/- And in  default To suffer RI  For 2  months

(B)     RI for 5 Years and  to Pay fine of Rs.15,000 And in Default to Suffer RI for 2 months

(C)     RI for 1 Year and to  Pay fine of  Rs.5,000/- And in  Default to  Suffer RI for  1 month

(D)     RI for 6 months  and to pay fine of Rs.2,000 and in  default to suffer RI

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for 15 days

(E)     RI for 3 Years and  to Pay fine of Rs.20,000 And in  Default to  Suffer RI for 3 months (sentences  to run  consecutivel y)

12 yrs. 6 months

Acquittal

Acquittal

Acquittal

Acquittal

9.      The parameters to be observed by the High Court while  dealing with an application for suspension of sentence and  grant of bail have been highlighted by this Court in many  cases. In Kishori Lal v. Rupa and Ors. (2004 (7) SCC 639) it  was observed as follows:

"Section 389 of the Code deals with  suspension of execution of sentence pending  the appeal and release of the appellant on bail.   There is a distinction between bail and  suspension of sentence. One of the essential  ingredients of Section 389 is the requirement  for the appellate Court to record reasons in  writing for ordering suspension of execution of  the sentence or order appealed.  If he is in  confinement, the said court can direct that he

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be released on bail or on his own bond.  The  requirement of recording reasons in writing  clearly indicates that there has to be careful  consideration of the relevant aspects and the  order directing suspension of sentence and  grant of bail should not be passed as a matter  of routine."          10.     The above position was re-iterated in Vasant Tukaram  Pawar v. State of Maharashtra (2005 (5) SCC 281).  

11.     It is true that the parameters to be applied in cases  where life or death sentence is imposed, may not be applicable  to other cases. But, the gravity of the offence, the sentence  imposed and several other similar factors need to be  considered by the Court. The fact that accused was on bail  during trial is certainly not a relevant factor. This position has  been fairly conceded by learned counsel for the respondents.  The reasons indicated by the High Court for granting bail in  our opinion do not satisfy the parameters.  It needs to be  pointed out that the trial Court considering the gravity of the  offence has directed the sentences to run consecutively. This  aspect has also not been considered by the High Court. In the  circumstances, the impugned order in each case is  indefensible and deserves to be set aside which we direct. But  considering the fact that  the High Court had not applied  correct principles it would be proper for the High Court to re- consider the matter and for that purpose the matter is  remitted to the High Court. Needless to say the High Court  shall consider all the relevant aspects and pass orders in  accordance with law.           12.     The appeals are allowed.