State Of Maharashtra v. Madhukar Wamanrao Smarth .

Dr. Arijit Pasayat, J.— Leave granted.

2. In each of these cases challenge is to the bail granted to the respondents 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.

6. 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 “the 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 the 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 respondent-accused have been already convicted has been completely lost sight of.

7. 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 around 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.

8. 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 the 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.

9. The factual details involved are as follows:

Case name Case No. Date of conviction Date of bail Sentence undergone Date of supply of copy of the judgment Conviction under section Imprisonment State of Maharashtra v. Sunil Mishra Regular Criminal Case No. 372 of 2002 10-1-2007 22-2-2007 43 days No information (A) Under Section 420 read with Sections 34, 109 IPC + Section 248(ii) CrPC (A) RI for 6 years and fine of Rs 20,000 and in default to suffer RI for 3 months (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 5000 in default to suffer RI for 1 month (D) Under Section 120-B + Section 248(ii) IPC (D) RI for 6 months and fine of Rs 2000 in default to suffer RI for 15 days (Sentences to run consecutively.) Total imprisonment 12 years 6 months State of Maharashtra v. Rajendra Yadav Regular Criminal Case No. 380 of 2002 1-3-2007 23-3-2007 22 days 4-3-2007 (A) Under Section 420 read with Section 34 IPC (A) RI for 4 years and to pay fine of Rs 20,000 and in default to suffer RI for 2 months

Case name Case No. Date of conviction Date of bail Sentence undergone Date of supply of copy of the judgment Conviction under section Imprisonment (B) Under Section 468 read with Section 34 IPC (B) RI for 3 years and to pay fine of Rs 15,000 and in default to suffer RI for 1 month (C) Under Section 471 read with Section 34 IPC (C) RI for 1 year and to pay fine of Rs 5000 and in default to suffer RI for one month (D) Under Section 120-B read with Section 109 and Section 34 IPC (D) RI for 6 months and to pay fine of Rs 2000 and in default to suffer RI for 15 days (E) Under Section 409 IPC (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.) Total imprisonment 12 years 6 months

Case name Case No. Date of conviction Date of bail Sentence undergone Date of supply of copy of the judgment Conviction under section Imprisonment State of Maharashtra v. Shailesh Tupkari Regular Criminal Case No. 368 of 2002 18-6-2007 30-6-2007 12 days 20-6-2007 (A) Under Section 420 read with Section 34 IPC (A) RI for 3 years and to pay fine of Rs 10,000 and in default to suffer RI for 2 months (B) Under Section 468 read with Section 34 IPC (B) RI for 5 years and to pay fine of Rs 15,000 and in default to suffer RI for 2 months (C) Under Section 471 read with Section 34 IPC (C) RI for 1 year and to pay fine of Rs 5000 and in default to suffer RI for 1 month (D) Under Section 120-B read with Section 109 and Section 34 IPC (D) RI for 6 months and to pay fine of Rs 2000 and in default to suffer RI for 15 days (E) Under Section 409 IPC (E) RI for 3 years and to pay fine of Rs 20,000 and in default to suffer RI for 3 months Total imprisonment 12 years 6 months

Case name Case No. Date of conviction Date of bail Sentence undergone Date of supply of copy of the judgment Conviction under section Imprisonment State of Maharashtra v. Mahendra Goti Regular Criminal Case No. 361 of 2002 12-2-2008 Imme-diately taken in custody on 12-2-2008 and is in jail In custody 14-2-2008 (A) Under Section 420 read with Section 34 IPC (A) RI for 3 years and to pay fine of Rs 10,000 and in default to suffer RI for 2 months (B) Under Section 468 read with Section 34 IPC (B) RI for 5 years and to pay fine of Rs 15,000 and in default to suffer RI for 2 months (C) Under Section 471 read with Section 34 IPC (C) RI for 1 year and to pay fine of Rs 5000 and in default to suffer RI for 1 month (D) Under Section 120-B read with Section 109 and Section 34 IPC (D) RI for 6 months and to pay fine of Rs 2000 and in default to suffer RI for 15 days (E) Under Section 409 IPC (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 consecutively.) Total imprisonment 12 years 6 months

Case name Case No. Date of conviction Date of bail Sentence undergone Date of supply of copy of the judgment Conviction under section Imprisonment State of Maharashtra v. Mohd. Ishaq Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal State of Maharashtra v. Laxmikant Zade Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal State of Maharashtra v. Atul Gudadhe Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal State of Maharashtra v. Parag Bagde Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal

10. 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 (2004) 7 SCC 638 it was observed as follows:

“4. 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 against. 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.”

The above position was reiterated 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 the 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.