Supreme Court of India
STATE OF MAHARASHTRAversusMADHUKAR WAMANRAO SMARTH
- Citation
- 2008 INSC 391
- Decided
- 24 March 2008
- Disposal
- Appeal(s) allowed
Holding
The High Court failed to satisfy the parameters under Section 389 CrPC and its order granting bail is set aside.
Summary
The State of Maharashtra convicted several respondents, including Madhukar Wamanrao Smarth, for cheating, forgery, abetment, criminal breach of trust and conspiracy, imposing consecutive sentences totalling twelve years. The respondents appealed and sought bail by suspension of sentence under Section 389 of the Code of Criminal Procedure. The Bombay High Court granted bail on grounds such as prior bail during trial, no misuse of liberty, anticipated delay, and alleged scanty evidence. The Supreme Court held that the High Court did not apply the proper parameters prescribed for suspension of sentence, that prior bail is irrelevant, and that the gravity of the offence and consecutive sentences required careful consideration, which the High Court omitted. Consequently, the bail orders were set aside and the matters remitted to the High Court for reconsideration.
Issues considered
- Whether the High Court correctly applied the parameters under Section 389 CrPC for suspension of sentence and grant of bail.
- Whether the fact that the accused was on bail during trial is a relevant factor for granting bail on appeal.
- Whether the gravity of the offence and the direction of consecutive sentences affect the grant of bail under Section 389.
- Whether the High Court recorded sufficient reasons in writing as required by Section 389.
Legislation cited
- Code of Criminal Procedure, 1973s. 389
- Indian Penal Code, 1860s. 1208, s. 248, s. 34, s. 409, s. 420, s. 468, s. 471
- Prevention of Corruption Act, 1988
Subjects
bailsuspension of sentenceSection 389consecutive sentencesgravity of offenceappellate courthigh courtsupreme court
Judgment
[2008] 5 S.C.R. 303
-+ STATE OF MAHARASHTRA A
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
the High Court for grant of bail by suspension of sentence E
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 F
. J.., the evidence appeared to be scanty against him. Hence
the present appeals.
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
304 SUPREME COURT REPORTS [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.
STATE OF MAHARASHTRA v. MADHUKAR 305
WAMANRAO SMARTH [DR. ARIJIT PASAYAT, J.]
' Dashratha for the Respondent.
The Judgment of the Court was delivered by
A
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
,~
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').
E
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 F
..),
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
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 '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.
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. Case Name Case No. Date of Date Sen· Date of Conviction Imprison- A
No & No. con- of bail tence supply of under ment
viction under- copy of section
gone the
Judgment
1. State of 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 B
v. Case No. mation 109 IPC And fine of
Sunil Mishra 372102 S.248 Rs.20000/-
(ii) Cr.P.C. and in
defaultto
suffer RI for
3 months
c
(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. in Default
to suffer
RI for D
2 months
(C) U/S 471 (C) RI for
r/w 34 IPC+ 1 year
s. 248 and fine of
(ii) Cr.P.C Rs.5,000/-
in Default
E
to suffer
RI for
1month
(D)U/S (D)Rlfor
1208+ 6 Months F
S.248 and fine of
(ii)IPC Rs.2,000/-
In default
to Suffer
RI for
15 days
(sentences
G
to run con-
secutively)
Total 12 years
Imprison- 6 months
ment
H
308 SUPREME COURT REPORTS [2008] 5 S.C.R.
A 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
default to
B suffer RI for
2 months
(B) U/S 468 (B) RI for
r/w S.34 3 years
IPC And to pay
fine of
c Rs.15,000/-
And in
Default to
suffer RI for
1 month
' (C) U/S 471 (C) RI for
D r/w S.34 1 year
IPC and to pay
fine of
Rs.5,000/-
and in
Default to
suffer RI for
E one month
I
(D) UIS (D)RI for
1208 r/w 6 Months
S. 109 and and to pay
S.34 IPC fine of
Rs.2,000/-
:
and in
F
defaultto
Suffer
RI for
15 days
(E) U/s 409 (E) RI for
i IPC 4 years
G And to pay
fine of
Rs.20,000/-
!
and In
defaultto
suffer RI for
I 2 months
H
t
STATE OF MAHARASHTRA v. MADHUKAR 309
WAMANRAO SMARTH [DR. ARIJIT PASAYAT, J.]
(sentences A
to run con-
secutively)
Total 12 years
Imprison- 6 months
ment
3. State of Regular 18.6.07 30.6.07 12 20.6.07 (A) U/S 420 (A) RI for
B
Maharashtra Criminal days r/w Sec.34 3 years
vs. Case No. IPC and to pay
Shailesh . 368/02 fine of
Tupkari Rs.10,000/-
and in
defaultto
suffer RI for
c
2 months
(B) UIS 468 (B) RI for
r/w S.34 5 years
IPC And to pay
fine of
Rs.15,000/- D
And in
Default to
.
suffer RI for
2 months
(C) U/S 471 (C) RI for
r/w S.34 1 year E
... IPC and to pay
fine of
Rs.5,000/-
and in
Default to
suffer RI for
1month ~ F
(D) U/S (D)Rlfor
1208 r/w 6 Months
S.109 and and to pay
S.34 IPC fine of
Rs.2,000/-
and in G
default to
Suffer
RI for
15 days
(E) U/s 409 (E) RI for
IPC 3 years H
310 SUPREME COURT REPORTS [2008] 5 S.C.R.
A Anu 10 pay
fine of
Rs.20,000/-
and In
defaultto
suffer RI for
3 months
B Total 12 years
Imprison- 6 months
ment
4. State of Regular 12.2.08 Imme- In 14.2.08 (A) U/S 420 (A) RI for
Maharashtra Criminal diately custody r/w S.34 3 years
c vs.
Mahendra
Case No.
361/02
taken
in
IPC and to pay
fine of
Goti custody Rs.10,000/-
on and in
12.2.08 default to
and is suffer RI for
in jail 2 months
D (8) U/S 468 (8) RI for
r/w S.34 5 years
IPC And to pay
fine of
Rs.15,000/-
And in
Default to
E suffer RI for
2 months
(C) UIS 471 (C) RI for
r/w S.34 1 year
IPC and to pay
fine of
F Rs.5;000/-
and in
Default to
suffer RI for
1month
(D) UIS (D)Rlfor
G 1208 r/w 6 Months
S.109 and and to pay
S.34 IPC fine of
Rs.2,000/-
and in
default to
Suffer
H 1:
STATE OF MAHARASHTRA v. MADHUKAR 311
WAMANRAO SMARTH [DR. ARIJIT.PASAYAT, J.]
RI for A
15 days
(E) U/s 409 (E)Rlfor
IPC 3 years
And to pay
fine of
Rs.20,000/- B
and In
defaultto
suffer RI for
3 months
(sentences
to run con- c
seculively)
Total 12 years
Imprison- 6 months
men!
5. State of Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal
D
Maharashtra
Vs.
Mohd. lshaq
6. State of Acquittal Acquittal Acquittal Acquittal Acquittal Acquittaf Acquittal
Maharashtra
Vs.
Laxmikant E
Zade
7. State of Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal
Maharashtra
Vs
Atul Gudadhe
8. State of Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal Acquittal F
Maharashtra
Vs
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
312 SUPREME COURT REPORTS [2008] 5 S.C.R.
A 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
B 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
c 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.
.12. The appeals are allowe·d.
H N.J. Appeals allowed.
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