State of Maharashtra Vs.
Madhukar Wamanrao Smarth  INSC 492 (24 March 2008)
Dr. Arijit Pasayat & P.
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
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
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:
N o 1.
Case Name & No.
State of Maharashtra v. Sunil Mishra State of Maharashtra Rajendra Yadav State
of Maharashtra Shailesh Tupkari State of Maharashtra Mahendra Goti State of
Maharashtra Mohd. Ishaq State of Maharashtra Laxmikant Zade State of
Maharashtra Atul Gudadhe State of Maharashtra Parag Bagde Case No.
Regular Criminal Case No.
Regularrr Crl. Case N.372/02 Regular Criminal Case No.
380/02 ReRegular Regular Criminal Case No.
368/2002 RRRegular Regular Criminal Case No.
361/2002 Acquittal Acquittal Acquittal Acquittal Date of conviction
10.1.2007 1.3.2007 18.6.2007 12.2.08 Acquittal Acquittal Acquittal Acquittal
Date of bail 22.2.07 23.3.0 7 30.6.0 7 Imme- Diately Taken In Custody On
12.2.08 And is In jail Acquitt- al Acquit- Al Acquitt- Al Acquitt- Al Sentence
undergone 43 days 22 days 12 days In custody Acquittal Acquittal Acquittal
Acquittal Date of supply of copy of the Judgment No information 4.3.2007
20.6.2007 14.2.2008 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.
(C) U/S 471 r/w 34 IPC + S. 248 (ii) Cr.P.C.
(D) U/S 120B + S.248(ii) IPC 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 (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 (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 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 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 (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 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 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.