STATE OF MAHARASHTRA v. MADHUKAR WAMANRAO SMARTH

Citation: [2008] 5 S.C.R. 303

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, P. SATHASIVAM

Case summary

STATE OF MAHARASHTRA v. MADHUKAR WAMANRAO SMARTH.pdf

Judgment text

[2008] 5 S. C. R. 303 -+ STATE OF MAHARASHTRA v. MADHUKAR WAMANRAO SMARTH (Criminal Appeal Nos. 520-521 of 2008) MARCH 24, 2008 (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ. ) Code of Criminal Procedure, 1973 - s. 389 - Suspension of sentence pending appeal - Release of person convicted for offence of cheating, abetment of cheating, criminal breach of trust and criminal conspiracy on bail - Held: Not sustainable - Reasons indicated by High Court for granting bail do not satisfy the parameters - Order of bail set aside - Matter remitted to High Court for reconsideration. The trial court convicted the respondents for committing the offence of cheating, preparing forged and ~ ~ false documents for cheating and using them as genuine, abetment of crime and committing criminal breach of trust by forming criminal conspiracy in furtherance of their common intention. The respondents filed appeals before the High Court for grant of bail by suspension of sentence in terms of s. 389 Cr. P. C.

High Court granted bail to each of the respondents on the ground that bail was granted during trial and the liberty was not misused; that there was likelihood of delay in disposal of the appeals; and that in the case of respondent in Crl. Appeal 520-521/2008 the evidence appeared to be scanty against him. Hence .. J.. , the present appeals. Allowing the appeals and remitting the matters, the Court HELD: The parameters to be applied while dealing with the application for suspension of sentence 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 counsel for the respondents. The reasons indicated by the High Court for granting bail do m>t satisfy the parameters.

It needs to be pointed out that the trial court considering the gravity of the offence directed the sentences to run consecuth·ely. This aspect was not considered by the High Court. In the circumstances, the impugned order in each case is indefensible and is directed to be set aside. But considering th1~ 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. (Para 11) [312-D, E, F, G] Kishori Lal v. Rupa and Ors. 2004 (7) SCC 639; Vasant Tukaram Pawar v. State of Maharashtra 2005 (5) SCC 281 - )< ~ relied on. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.. 520-521 of 2008. 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. WITH Criminal Appeal Nos. 522, 523, 524-527, 528 and 529 of 2008.

Shekhar Naphade, Ravindra Keshavrao Adsure for the Appellant. Ashok Srivastav, U. U. Lalit, Satyajit A. Desai, Anagha S. Desai, P. N. Gupta, Dr. R. S. Sundram, Gagan Sanghi, Mihir Y Kanade, Porus Kotwal, Rameshwar Prasad Goyal, Amol N. Suryawanshi, Naveen R. Nath, Lalit Mohini Bhat and A. Dashratha for the Respondent. The Judgment of the Court was delivered by 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 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 s~cond 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 siuht of. 6.

Learned counsel for the respondents on the other hand submitted that the parameters for grant of bail and cancellation 'I.... ,.. 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: SI. Case Name Case No. Date of Date Sen· Date of Conviction Imprison- No & No. con- of bail tence supply of under ment viction under- copy of section gone the Judgment 1. Stateof Regular· 10. 1. 07 22. 2. 07 43 No (A) U/S 420 (A) RI for Maharashtra Criminal days infor- r/w S. 34, 6 years v. Case No. mation 109 IPC And fine of Sunil Mishra 372102 S. 248 Rs. 20000/- (ii) Cr. P. C. and in defaultto sufferRI for 3months (B) U/S 468 (B)Rlfor. r/w S. 34 5 years IPC+S. And fine of 248(ii) Rs. 15,000/- Cr. P. C. inDefault to suffer RI for 2months (C) U/S 471 (C) RI for r/w 34 IPC+ 1year s. 248 and fine of (ii) Cr. P. C Rs. 5,000/inDefault to suffer RI for 1month (D)U/S (D)Rlfor 1208+ 6Months S. 248 and fine of (ii)IPC Rs.

2,000/- Indefault to Suffer RI for 15 days (sentences to run consecutively) Total 12 years Imprison- 6months ment 2. State of Regular 1. 3. 07 23. 3. 07 22 4. 3. 07 (A) U/S 420 (A) RI for Maharashtra Criminal days r/w S. 34, 4 years vs. Case No. IPC and to pay Rajendra 380/02 fine of Yadav Rs. 20000/and in : defaultto sufferRI for 2months (B) U/S 468 (B) RI for r/w S. 34 3 years IPC And to pay fine of Rs. 15,000/- And in Defaultto sufferRI for 1month ' (C) U/S 471 (C) RI for r/w S. 34 1year IPC and to pay fine of Rs. 5,000/and in Defaultto sufferRI for one month I (D) UIS (D)RI for 1208 r/w 6Months S. 109 and and to pay S. 34 IPC fine of Rs. 2,000/- : and in defaultto Suffer RI for 15 days (E) U/s 409 (E) RI for i IPC 4 years And to pay fine of Rs. 20,000/- ! and In defaultto sufferRI for I 2months t (sentences to run consecutively) Total 12 years Imprison- 6months ment 3. Stateof Regular 18. 6. 07 30. 6. 07 12 20. 6. 07 (A) U/S 420 (A) RI for Maharashtra Criminal days r/w Sec.

34 3 years vs. Case No. IPC and to pay Shailesh . 368/02 fineof Tupkari Rs. 10,000/and in defaultto sufferRI for 2months (B) UIS 468 (B) RI for r/w S. 34 5 years IPC And to pay fine of Rs. 15,000/- And in Defaultto . sufferRI for 2months (C) U/S 471 (C) RI for r/w S. 34 1year ... IPC and to pay fine of Rs. 5,000/and in Defaultto sufferRI for ~ 1month (D) U/S (D)Rlfor 1208 r/w 6Months S. 109 and and to pay S. 34 IPC fineof Rs. 2,000/and in defaultto Suffer RI for 15 days (E) U/s 409 (E) RI for IPC 3 years Anu 10 pay fine of Rs. 20,000/and In defaultto sufferRI for 3months Total 12 years Imprison- 6months ment 4. Stateof Regular 12. 2. 08 Imme- In 14. 2. 08 (A) U/S 420 (A) RI for Maharashtra Criminal diately custody r/w S. 34 3years vs. Case No. taken IPC and to pay Mahendra 361/02 in fineof Goti custody Rs. 10,000/on and in 12. 2. 08 defaultto and is sufferRI for in jail 2months (8) U/S 468 (8) RI for r/w S. 34 5 years IPC And to pay fine of Rs.

15,000/- And in Defaultto suffer RI for 2months (C) UIS 471 (C) RI for r/w S. 34 1year IPC and to pay fine of Rs. 5;000/and in Defaultto sufferRI for 1month (D) UIS (D)Rlfor 1208 r/w 6Months S. 109 and and to pay S. 34 IPC fine of Rs. 2,000/and in defaultto Suffer 1: RI for 15 days (E) U/s 409 (E)Rlfor IPC 3 years And to pay fine of Rs. 20,000/and In defaultto sufferRI for 3months (sentences to run conseculively) Total 12 years Imprison- 6months men! 5. Stateof Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Maharashtra Vs. Mohd. lshaq 6. Stateof Acquittal Acquittal Acquittal Acquittal Acquittal Acquittaf Acquittal Maharashtra Vs. Laxmikant Zade 7. Stateof Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Maharashtra Vs Atul Gudadhe 8. Stateof Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Maharashtra Vs ParagBagde 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 distincti1:m 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 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 0 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 tne High Court to re-consider the matter and for that purpose the matter is remitted to the Hi! ~h Court. Needless to say the High Court shall consider all the relevant aspects and pass ordets in accordance with law. . 12. The appeals are allowe·d. N. J. Appeals allowed.