High CourtDivision Bench2008-03-24Appeals allowed; remitted to High Court for rec...

State of Maharashtra v. Madhukar Wamanrao Smarth

Case / Petition Number:Criminal Appeal Nos. 520-521 of 2008; with Criminal Appeal Nos. 522-529 of 2008 (consolidated)

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

Case Details & Bench

Court: High Court
Hon'ble Judges: Dr. Arijit Pasayat
P. Sathasivam
Judgment Date: 2008-03-24
Court Decision / Holding: Appeals allowed. The impugned High Court orders granting bail on suspension of sentence are set aside. The matter is remitted to the High Court for reconsideration in accordance with law, ensuring application of correct principles and taking into account all relevant factors including the gravity of the offences, the sentences, and the presence of connected cases.
Final Disposition: Appeals allowed; remitted to High Court for reconsideration

Parties to the Case

Appellants / Petitioners

State of Maharashtra

Respondents

Madhukar Wamanrao Smarth
Sunil Mishra
Rajendra Yadav
Shailesh Tupkari
Mahendra Goti
Laxmikant Zade
Atul Gudadhe
Parag Bagde
Mohd Ishaq

Legal Representation & Advocates

Counsels for Petitioners

• Shekhar Naphade
• Ravindra Keshavrao Adsure

Counsels for Respondents

• Dashratha

Case Synopsis & Summary

This Supreme Court judgment deals with multiple connected appeals challenging bail granted by the Bombay High Court, Nagpur Bench, under Section 389 CrPC pending appeal after conviction for cheating, forging documents for cheating, abetment, and criminal conspiracy. The trial court had convicted the respondents; the High Court released them on bail on grounds including absence of misused liberty, anticipated delay in disposal of appeals, and, in one case, scanty evidence. The State of Maharashtra challenged these bail orders, arguing that the High Court failed to apply correct principles, given the gravity of the offences and the sentences to be served consecutively, and the existence of numerous connected cases. The Court held that the parameters for suspension of sentence in non-life/death cases may differ, but the gravity of the offence, the sentence imposed, and other factors must be considered; the fact that the accused was on bail during trial is not a decisive factor. The High Court’s reasons did not meet the required standards, and the orders were indefensible. However, since the High Court had not applied correct principles, the matter was remitted for reconsideration in light of the proper principles. The appeals were allowed and remanded to the High Court for fresh orders in accordance with law.”

Provisions of Law Cited

Code of Criminal Procedure, 1973, Section 389Code of Criminal Procedure, 1973, Section 248(2)Code of Criminal Procedure, 1973, Section 120BIndian Penal Code, Section 420Indian Penal Code, Section 468Indian Penal Code, Section 471Indian Penal Code, Section 409Indian Penal Code, Section 34Code of Criminal Procedure, 1973, Section 109

Legal Doctrines & Maxims

Distinction between bail and suspension of sentence under Section 389 CrPC
Requirement to record reasons in writing for suspension of sentence under Section 389 CrPC
Gravity of the offence and the sentence, and other factors to be considered by the Court; bail during trial is not a relevant factor

Submissions & Arguments

Contentions of Appellants / Petitioners

The State contends that the High Court failed to apply the correct legal parameters for suspending sentence under CrPC Section 389 in cases of convictions for serious offences involving cheating, forged documents, abetment and criminal conspiracy. The High Court’s reliance on the fact that bail was granted during trial and the likelihood of delay in disposal of appeals is not a valid basis to permit suspension of sentence, especially where the trial court directed sentences to run consecutively and there are multiple connected cases. Citing Kishori Lal v. Rupa and Ors. (2004) 7 SCC 639 and Vasant Tukaram Pawar v. State of Maharashtra (2005) 5 SCC 281, the State argues that reasons must be recorded and correct principles applied. The High Court’s reasons do not satisfy the statutory parameters, hence the bail orders deserve to be set aside and remitted for reconsideration under law.

Contentions of Respondents

The respondents, including the convicted individuals, argue that bail and suspension of sentence are governed by different parameters. Some respondents are elderly; there are delays in proceedings; bail granted during trial and the possibility of delays in disposal of appeals are legitimate factors for consideration. The High Court’s orders were made after balancing risk and humanitarian considerations and should not be easily set aside simply on technical grounds, particularly where multiple connected cases exist. The court should exercise restraint and not re-open well-reasoned discretionary decisions without compelling reasons.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kishori Lal v. Rupa and Ors.	2004 (7) SCC 639	Positive	Cited to emphasize the distinction between bail and suspension of sentence under Section 389 CrPC and the requirement to record reasons in writing; used to underscore that proper principles must be applied.
Vasant Tukaram Pawar v. State of Maharashtra	2005 (5) SCC 281	Positive	Cited as reiterating the appropriate parameters for suspension of sentence and bail; used to support the need for careful consideration and written reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

[2008] 5 S.C.R. 303 A -+ ~ ~ .. J.., ## STATE OF MAHARASHTRA _v._ MADHUKAR WAMANRAO SMARTH (Criminal Appeal Nos. 520-521 of 2008) ## MARCH 24, 2008 B (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_[c ] - _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 D 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 E 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 F that in the case of respondent in Crl. Appeal 520-521/2008 the evidence appeared to be scanty against him. Hence the present appeals. F Allowing the appeals and remitting the matters, the Court G 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, 303 H SUPREME COURT REPORTS 304 [2008] 5 S.C.R. +- A 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 B 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 c 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] D _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 E 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. F ## WITH Criminal Appeal Nos. 522, 523, 524-527, 528 and 529 of 2008. Shekhar Naphade, Ravindra Keshavrao Adsure for the G Appellant. Ashok Srivastav, U.U. Lalit, Satyajit A. Desai, Anagha S. Desai, P.N. Gupta, Dr. R.S. Sundram, Gagan Sang hi, Mihir Y Kanade, Porus Kotwal, Rameshwar Prasad Goyal, Amol N. H Suryawanshi, Naveen R. Nath, Lalit Mohini Bhat and A. 305 A ,~ _. .),_ # STATE OF MAHARASHTRA _v._ MADHUKAR WAMANRAO SMARTH [DR. ARIJIT PASAYAT, J.] 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 B 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 c 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. D D 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 . E F 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 G 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') H 306 SUPREME COURT REPORTS (2008] 5 S.C.R. A 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 B 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 C 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. -. - D 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. E 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 F 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 ' G 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. H 8. The factual details involved are as follows: STATE OF MAHARASHTRA _v._ MADHUKAR 307 ## . WAMANRAO SMARTH [DR. ARIJIT PASAYAT, J.) |SI. No|CaseName No &No.|CaseNo.|Dateof con- viction|of Date ofbail viction|Sen· tence under- gone|Dateof ConvictionImprison- supplyof under ment copyof section the Judgment|Dateof ConvictionImprison- supplyof under ment copyof section the Judgment|Dateof ConvictionImprison- supplyof under ment copyof section the Judgment| |---|---|---|---|---|---|---|---|---| |1.|Stateof Maharashtra v. SunilMishra|Regular· Criminal CaseNo. 372102|10.1.07|10.1.0722.2.07|43 days|No infor- mation|(A)U/S420 r/wS.34, 109IPC S.248 (ii)Cr.P.C.|(A)RIfor 6years Andfineof Rs.20000/- andin defaultto sufferRIfor 3months| ||||||||(B)U/S468 r/wS.34 IPC+S. 248(ii) Cr.P.C.|(B)Rlfor. 5years Andfineof Rs.15,000/- inDefault tosuffer RIfor 2months| ||||||||(C)U/S471 r/w34IPC+ s.248 (ii)Cr.P.C|(C)RIfor 1year andfineof Rs.5,000/- inDefault tosuffer RIfor 1month| ||||||||(D)U/S 1208+ S.248 (ii)IPC Total Imprison- ment|(D)Rlfor 6Months andfineof Rs.2,000/- Indefault toSuffer RIfor 15days (sentences toruncon- secutively) 12years 6months| **[2008] 5 S.C.R.** **SUPREME COURT REPORTS** **308** |2. : ' : i ! I|Stateof Maharashtra vs. Rajendra Yadav :|Regular Criminal CaseNo. 380/02|1.3.07|23.3.07|22 days|4.3.07|(A)U/S420 r/wS.34, IPC|(A)RIfor 4years andtopay fineof Rs.20000/- andin defaultto sufferRIfor 2months (B)RIfor 3years Andtopay fineof Rs.15,000/- Andin Defaultto sufferRIfor 1month (C)RIfor 1year andtopay fineof Rs.5,000/- andin Defaultto sufferRIfor onemonth (D)RIfor 6Months andtopay fineof Rs.2,000/- andin defaultto Suffer RIfor 15days **(E)**RIfor 4years Andtopay fineof Rs.20,000/- andIn defaultto sufferRIfor 2months| |---|---|---|---|---|---|---|---|---| ||||||||(B)U/S468 r/wS.34 IPC|| ||||||||(C)U/S471 r/wS.34 IPC|| ||||I||||**(D)**_UIS_ 1208r/w S.109and S.34IPC|| ||||||||(E)U/s409 IPC|| 309 **STATE OF MAHARASHTRA** _**v.**_ **MADHUKAR WAMANRAO SMARTH [DR. ARIJIT PASAYAT, J.]** ... |3.|||||||Total Imprison- ment|(sentences toruncon- secutively) 12years 6months| |---|---|---|---|---|---|---|---|---| ||Stateof Maharashtra vs. Shailesh Tupkari|Regular Criminal CaseNo. .368/02|18.6.07|18.6.0730.6.07|12 days|20.6.07|(A)U/S420 r/wSec.34 IPC|(A)RIfor 3years andtopay fineof Rs.10,000/- andin defaultto sufferRIfor 2months| |||||||.|**(B)**UIS468 r/wS.34 IPC|(B)RIfor 5years Andtopay fineof Rs.15,000/- Andin Defaultto sufferRIfor 2months| ||||||||(C)U/S471 r/wS.34 IPC|(C)RIfor 1year andtopay fineof Rs.5,000/- andin Defaultto sufferRIfor 1month| ||||||||(D)U/S 1208r/w S.109and S.34IPC|(D)Rlfor 6Months andtopay fineof Rs.2,000/- andin defaultto Suffer RIfor 15days| ||||||||(E)U/s409 IPC|(E)RIfor 3years| 310 SUPREME COURT REPORTS [2008] 5 S.C.R. |4. 1:||||Anu10pay fineof Rs.20,000/- andIn defaultto sufferRIfor 3months Total 12years Imprison- 6months ment 12.2.08Imme- In 14.2.08 (A)U/S420 (A)RIfor diatelycustody r/wS.34 3years taken IPC andtopay in fineof custody Rs.10,000/- on andin 12.2.08 defaultto andis sufferRIfor injail 2months (8)U/S468 (8)RIfor r/wS.34 5years IPC Andtopay fineof Rs.15,000/- Andin Defaultto sufferRIfor 2months (C)UIS471 (C)RIfor r/wS.34 1year IPC andtopay fineof Rs.5;000/- andin Defaultto sufferRIfor 1month (D)UIS (D)Rlfor 1208r/w 6Months S.109and andtopay S.34IPC fineof Rs.2,000/- andin defaultto Suffer|Anu10pay fineof Rs.20,000/- andIn defaultto sufferRIfor 3months Total 12years Imprison- 6months ment 12.2.08Imme- In 14.2.08 (A)U/S420 (A)RIfor diatelycustody r/wS.34 3years taken IPC andtopay in fineof custody Rs.10,000/- on andin 12.2.08 defaultto andis sufferRIfor injail 2months (8)U/S468 (8)RIfor r/wS.34 5years IPC Andtopay fineof Rs.15,000/- Andin Defaultto sufferRIfor 2months (C)UIS471 (C)RIfor r/wS.34 1year IPC andtopay fineof Rs.5;000/- andin Defaultto sufferRIfor 1month (D)UIS (D)Rlfor 1208r/w 6Months S.109and andtopay S.34IPC fineof Rs.2,000/- andin defaultto Suffer|Anu10pay fineof Rs.20,000/- andIn defaultto sufferRIfor 3months Total 12years Imprison- 6months ment 12.2.08Imme- In 14.2.08 (A)U/S420 (A)RIfor diatelycustody r/wS.34 3years taken IPC andtopay in fineof custody Rs.10,000/- on andin 12.2.08 defaultto andis sufferRIfor injail 2months (8)U/S468 (8)RIfor r/wS.34 5years IPC Andtopay fineof Rs.15,000/- Andin Defaultto sufferRIfor 2months (C)UIS471 (C)RIfor r/wS.34 1year IPC andtopay fineof Rs.5;000/- andin Defaultto sufferRIfor 1month (D)UIS (D)Rlfor 1208r/w 6Months S.109and andtopay S.34IPC fineof Rs.2,000/- andin defaultto Suffer|Anu10pay fineof Rs.20,000/- andIn defaultto sufferRIfor 3months Total 12years Imprison- 6months ment 12.2.08Imme- In 14.2.08 (A)U/S420 (A)RIfor diatelycustody r/wS.34 3years taken IPC andtopay in fineof custody Rs.10,000/- on andin 12.2.08 defaultto andis sufferRIfor injail 2months (8)U/S468 (8)RIfor r/wS.34 5years IPC Andtopay fineof Rs.15,000/- Andin Defaultto sufferRIfor 2months (C)UIS471 (C)RIfor r/wS.34 1year IPC andtopay fineof Rs.5;000/- andin Defaultto sufferRIfor 1month (D)UIS (D)Rlfor 1208r/w 6Months S.109and andtopay S.34IPC fineof Rs.2,000/- andin defaultto Suffer| |---|---|---|---|---|---|---|---| ||Stateof Maharashtra vs. Mahendra Goti|Regular Criminal CaseNo. 361/02|12.2.08|12.2.08Imme- diately taken in custody on 12.2.08 andis injail|In custody|14.2.08 custody|(A)U/S420 r/wS.34 IPC| ||||||||(8)U/S468 r/wS.34 IPC| ||||||||(C)UIS471 r/wS.34 IPC| ||||||||| **STATE OF MAHARASHTRA** _**v.**_ **MADHUKAR** **311** **WAMANRAO SMARTH [DR. ARIJIT.PASAYAT, J.]** |||||||||RIfor 15days (E)Rlfor 3years Andtopay fineof Rs.20,000/- andIn defaultto sufferRIfor 3months (sentences toruncon- seculively) 12years 6months Acquittal| |---|---|---|---|---|---|---|---|---| ||5. Stateof Acquittal Maharashtra Vs. Mohd.lshaq||||||(E)U/s409 IPC Total Imprison- men!|| |5.||Acquittal|Acquittal|AcquittalAcquittal Acquittal|Acquittal Acquittal|Acquittal|Acquittal|| |6. 7. 8.|6. Stateof Maharashtra Vs. Laxmikant Zade|Acquittal|Acquittal|AcquittalAcquittal|Acquittal|Acquittal Acquittal|Acquittaf|| ||7. Stateof Maharashtra Vs AtulGudadhe|Acquittal Gudadhe|Acquittal|AcquittalAcquittal|Acquittal|Acquittal Acquittal|Acquittal|| ||8. Stateof Maharashtra Vs ParagBagde|Acquittal ParagBagde||||||| **9. The parameters to be observed by the High Court while dealing with an application for suspension of sentence and grant G 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 H** SUPREME COURT REPORTS 312 [2008] 5 S.C.R. A B c 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 E 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 F 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 G 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 . 0 . 12. The appeals are allowe·d. H N.J. Appeals allowed.