State of Maharashtra Vs. Madhukar Wamanrao Smarth
EmailAppeal: 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)
[From the Judgment and Order dated 22.6.2007 and 29.6.2007 of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Crl. A. Nos. 1698 and 1775/2007 in Crl. A. No. 220/2007 respectively]
[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)
[From the Judgment and Order dated 22.6.2007 and 29.6.2007 of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Crl. A. Nos. 1698 and 1775/2007 in Crl. A. No. 220/2007 respectively]
Petitioner: State of Maharashtra
Respondent: Madhukar Wamanrao Smarth
Apeal: 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)
[From the Judgment and Order dated 22.6.2007 and 29.6.2007 of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Crl. A. Nos. 1698 and 1775/2007 in Crl. A. No. 220/2007 respectively]
[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)
[From the Judgment and Order dated 22.6.2007 and 29.6.2007 of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Crl. A. Nos. 1698 and 1775/2007 in Crl. A. No. 220/2007 respectively]
Judges: Dr. Arijit Pasayat & P. Sathasivam, JJ.
Date of Judgment: Mar 24, 2008
Appearances:
Mr. Shekhar Naphade, Senior Advocate, Mr. Ravindra Keshavrao Adsure, Advocate with him for the Appellant.
Mr. Ashok Srivastav, Mr. U.U. Lalit, Senior Advocates, Mr. Satyajit A. Desai, Ms. Anangha S. Desai, Mr. P.N. Gupta, Dr. R.S. Sundram, Mr. Gagan Sanghi, Mr. Mihir Y. Kanade, Mr. Porus Kotwal, Mr. Rameshwar Prasad Goyal, Mr. Amol N. Suryawanshi, Mr. Naveen R. Nath, Mr. Lalit Mohini Bhat and Mr. A. Dashratha, Advocates with them for the Respondent.
Mr. Ashok Srivastav, Mr. U.U. Lalit, Senior Advocates, Mr. Satyajit A. Desai, Ms. Anangha S. Desai, Mr. P.N. Gupta, Dr. R.S. Sundram, Mr. Gagan Sanghi, Mr. Mihir Y. Kanade, Mr. Porus Kotwal, Mr. Rameshwar Prasad Goyal, Mr. Amol N. Suryawanshi, Mr. Naveen R. Nath, Mr. Lalit Mohini Bhat and Mr. A. Dashratha, Advocates with them for the Respondent.
Head Note:
Criminal Law
Criminal Procedure Code, 1973
Section 389 – Bail in appeal – Conviction in trial for offences of cheating, forgery, using forged documents etc. – Parameters to be adopted for bail – If accused’s being on bail, a factor for consideration. Held that, that is not a relevant factor, but gravity of offence and sentence imposed are relevant. Kishorilal’s case referred.
Criminal Procedure Code, 1973
Section 389 – Bail in appeal – Conviction in trial for offences of cheating, forgery, using forged documents etc. – Parameters to be adopted for bail – If accused’s being on bail, a factor for consideration. Held that, that is not a relevant factor, but gravity of offence and sentence imposed are relevant. Kishorilal’s case referred.
Held:
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. (Para 11)
Cases Reffered:
1. Vasant Tukaram Pawar v. State of Maharashtra [JT 2005 (11) SC 271] (Para 10)
2. Kishori Lal v. Rupa and Ors. [JT 2004 (8) SC 317] (case referred) (Para 9)
2. Kishori Lal v. Rupa and Ors. [JT 2004 (8) SC 317] (case referred) (Para 9)
JUDGEMENT:
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 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:
Case Name and No. Case No. Date of Date of Sentence Date of supply Conviction Imprisonment
conviction bail under- of copy of the under
gone Judgment section
State of Regular 10.1.2007 22.2.07 43 days No information (A) Under (A) RI for 6
Maharashtra Criminal Section 420 years And fine
v. Sunil Case No. read with of Rs. 20,000/-
Mishra 372/02 Section 34, and in default
109 IPC to suffer RI for 3
Section 248 months
(ii) CrPC
(B) Under
Section 468
read with
Section 34
IPC +
Section 248
(ii) CrPC (B) RI for 5
years and fine of
Rs. 15,000/- in
default to suffer
RI for 2 months
(C) Under
Section 471
read with 34
IPC +
Section 248
(ii) CrPC (C) RI for 1 year
and fine of
Rs. 5,000/- in
Default to suffer
RI for 1 month
(D) Under
Section
120B +
Section 248 (D) RI for 6
(ii) IPC months and fine
of Rs. 2,000/- in
default to suffer
RI for 15 days
(sentences to run consecutively)
Total 12 years 6
Imprison- months
ment
State of Regular 1.3.2007 23.3.07 22 days 4.3.2007 (A) Under (A) RI for 4
Maharashtra Criminal Section 420 Years and to
v. Case No. read with Fine of
Rajendra 380/02 Section 34 Rs. 20,000/-
Yadav IPC and in default to
suffer RI for 2
months
(B) Under (B) RI for 3
Section 468 years
read with And to pay fine
Section 34 of Rs. 15,000/-
IPC and in default to
suffer RI for one
month
(C) Under (C) RI for 1 year
Section 471 and to pay fine
read with of Rs. 5,000/-
Section 34 and in default to
IPC suffer RI for one
month
(D) Under (D) RI for 6
Section months
120B read And to pay fine
with Section of Rs. 2,000/-
109 and and in default to
Section 34 suffer RI for 15
IPC Days
(E) Under (E) RI for 4
Section 409 years
IPC And to pay fine of Rs.20,000/- and in default to suffer RI for 2 months
(sentences to run consecutively)
Total 12 years 6
Imprison- months
ment
State of Regular 18.6.2007 30.6.07 12 days 20.6.2007 (A) Under (A) RI for 3
Maharashtra Criminal Section 420 years and to pay
v. Case No. Section 34 fine of
Shailesh 368/2002 IPC Rs. 10,000/-
Tupkari and in default to suffer RI for 2 months
(B) Under (B) RI for 3
Section 468 years and to
read with pay fine of
Section 34 Rs. 15,000/-
IPC and in default
to suffer RI for 2 months
Total Impri- 12 years 6
sonment months
(C) Under (C) RI for 1
Section 471 years and to
read with pay fine of
Section 34 Rs. 5,000/-
IPC and in default
to suffer RI for 1 month
(D) Under (D) RI for 6
Section months and to
120B read pay fine of
with Section Rs. 2,000/-
109 and and in default
Section 34 to suffer RI for IPC 15 days
(E) Under (D) RI for 3
Section 409 years and to
IPC pay fine of
Rs. 20,000/-
and in default
to suffer RI for 3 months
(sentences to run consecutively)
Total 12 years 6
Imprison- months
ment
State of Regular 12.2.2008 Imme- In 14.2.2008 (A) Under (A) RI for 3
Maharashtra Criminal diately custody Section 420 years and to pay
v. Case No. taken in Section 34 fine of
Mahendra 361/2002 custody IPC Rs. 10,000/-
Goti on and in default to
12.2.08 suffer RI for 2
and is months
in jail
(B) Under (B) RI for 5
Section 468 years and to
read with pay fine of
Section 34 Rs. 15,000/-
IPC and in default
to suffer RI for 2 months
(C) Under (C) RI for 1
Section 471 years and to
read with pay fine of
Section 34 Rs. 5,000/-
IPC and in default
to suffer RI for 1 month
(D) Under (D) RI for 6
Section months and to
120B read pay fine of
with Section Rs. 2,000/-
109 and and in default
Section 34 to suffer RI for IPC 15 days
(E) Under (E) RI for 3
Section 409 years and to
IPC pay fine of
Rs. 20,000/-
and in default
to suffer RI for 3 months
(sentences to run consecutively)
Total 12 years 6
Imprison- months
ment
State of Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal
Maharashtra
v.
Mohd. Ishaq
State of Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal
Maharashtra
v.
Laxmikant
Zade
State of Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal
Maharashtra
v.
Atul Gudadhe
State of Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal
Maharashtra
v.
Parag Bagde
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. [JT 2004 (8) SC 317] 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 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 reiterated in Vasant Tukaram Pawar v. State of Maharashtra [JT 2005 (11) SC 271 ; 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 reconsider 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.
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 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:
Case Name and No. Case No. Date of Date of Sentence Date of supply Conviction Imprisonment
conviction bail under- of copy of the under
gone Judgment section
State of Regular 10.1.2007 22.2.07 43 days No information (A) Under (A) RI for 6
Maharashtra Criminal Section 420 years And fine
v. Sunil Case No. read with of Rs. 20,000/-
Mishra 372/02 Section 34, and in default
109 IPC to suffer RI for 3
Section 248 months
(ii) CrPC
(B) Under
Section 468
read with
Section 34
IPC +
Section 248
(ii) CrPC (B) RI for 5
years and fine of
Rs. 15,000/- in
default to suffer
RI for 2 months
(C) Under
Section 471
read with 34
IPC +
Section 248
(ii) CrPC (C) RI for 1 year
and fine of
Rs. 5,000/- in
Default to suffer
RI for 1 month
(D) Under
Section
120B +
Section 248 (D) RI for 6
(ii) IPC months and fine
of Rs. 2,000/- in
default to suffer
RI for 15 days
(sentences to run consecutively)
Total 12 years 6
Imprison- months
ment
State of Regular 1.3.2007 23.3.07 22 days 4.3.2007 (A) Under (A) RI for 4
Maharashtra Criminal Section 420 Years and to
v. Case No. read with Fine of
Rajendra 380/02 Section 34 Rs. 20,000/-
Yadav IPC and in default to
suffer RI for 2
months
(B) Under (B) RI for 3
Section 468 years
read with And to pay fine
Section 34 of Rs. 15,000/-
IPC and in default to
suffer RI for one
month
(C) Under (C) RI for 1 year
Section 471 and to pay fine
read with of Rs. 5,000/-
Section 34 and in default to
IPC suffer RI for one
month
(D) Under (D) RI for 6
Section months
120B read And to pay fine
with Section of Rs. 2,000/-
109 and and in default to
Section 34 suffer RI for 15
IPC Days
(E) Under (E) RI for 4
Section 409 years
IPC And to pay fine of Rs.20,000/- and in default to suffer RI for 2 months
(sentences to run consecutively)
Total 12 years 6
Imprison- months
ment
State of Regular 18.6.2007 30.6.07 12 days 20.6.2007 (A) Under (A) RI for 3
Maharashtra Criminal Section 420 years and to pay
v. Case No. Section 34 fine of
Shailesh 368/2002 IPC Rs. 10,000/-
Tupkari and in default to suffer RI for 2 months
(B) Under (B) RI for 3
Section 468 years and to
read with pay fine of
Section 34 Rs. 15,000/-
IPC and in default
to suffer RI for 2 months
Total Impri- 12 years 6
sonment months
(C) Under (C) RI for 1
Section 471 years and to
read with pay fine of
Section 34 Rs. 5,000/-
IPC and in default
to suffer RI for 1 month
(D) Under (D) RI for 6
Section months and to
120B read pay fine of
with Section Rs. 2,000/-
109 and and in default
Section 34 to suffer RI for IPC 15 days
(E) Under (D) RI for 3
Section 409 years and to
IPC pay fine of
Rs. 20,000/-
and in default
to suffer RI for 3 months
(sentences to run consecutively)
Total 12 years 6
Imprison- months
ment
State of Regular 12.2.2008 Imme- In 14.2.2008 (A) Under (A) RI for 3
Maharashtra Criminal diately custody Section 420 years and to pay
v. Case No. taken in Section 34 fine of
Mahendra 361/2002 custody IPC Rs. 10,000/-
Goti on and in default to
12.2.08 suffer RI for 2
and is months
in jail
(B) Under (B) RI for 5
Section 468 years and to
read with pay fine of
Section 34 Rs. 15,000/-
IPC and in default
to suffer RI for 2 months
(C) Under (C) RI for 1
Section 471 years and to
read with pay fine of
Section 34 Rs. 5,000/-
IPC and in default
to suffer RI for 1 month
(D) Under (D) RI for 6
Section months and to
120B read pay fine of
with Section Rs. 2,000/-
109 and and in default
Section 34 to suffer RI for IPC 15 days
(E) Under (E) RI for 3
Section 409 years and to
IPC pay fine of
Rs. 20,000/-
and in default
to suffer RI for 3 months
(sentences to run consecutively)
Total 12 years 6
Imprison- months
ment
State of Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal
Maharashtra
v.
Mohd. Ishaq
State of Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal
Maharashtra
v.
Laxmikant
Zade
State of Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal
Maharashtra
v.
Atul Gudadhe
State of Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal
Maharashtra
v.
Parag Bagde
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. [JT 2004 (8) SC 317] 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 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 reiterated in Vasant Tukaram Pawar v. State of Maharashtra [JT 2005 (11) SC 271 ; 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 reconsider 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.
