Smt.Vandana Nursinh Kelkar vs The State Of Maharashtra on 25 March, 2009

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

              CRIMINAL WRIT PETITION NO.92 OF 2009




                                                                     
                                             
    Smt.Vandana Nursinh Kelkar           ]
    Age - 44 years,Occupation - Service ]
    R/at.4-D, Raghavwadi, French Bridge, ]
    MUMBAI.                              ]      .. Petitioner




                                            
             V/s.

    1.   The State of Maharashtra        ]
                                         ]




                                   
    2.   Sambhajirao Bapusaheb Patil     ]
         Age - 42 years, Occu. -Service, ]
                       
         R/at.Room No.4, Ground Floor,   ]
         C-Type Mangal Kalash, Cholegaon,]
         Thakurli (E), Dombiwali         ]
                      
         Tal.- Kalyan, District - Thane. ]    .. Respondents



    Mr.R.G.Panchal for the Petitioner.
           


    Mr.Shirish Gupte, Amicus curie.
    Mr.Vikas Shivarkar for Respondent No.4.
        



                           CORAM : BILAL NAZKI and





                                       A.R.JOSHI, JJ.

DATED : MARCH 25TH, 2009.

ORAL JUDGMENT (Per Bilal Nazki, J.) :-

This Petition was filed challenging the action
of the learned Sessions Judge and the Magistrate which

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has resulted in imprisonment of the Petitioner.
Petitioner was sentenced to six months imprisonment and
also fine Rs.1,75,000/-. Out of this amount

Rs.1,73,000/- were to be paid as compensation to the
complainant. The Complaint was under section 138 A of

Negotiable Instruments Act.

2. It appears that when the Petitioner was
sentenced, she filed an application for suspension of
sentence.

3. The learned Magistrate passed an order on the

back of the application in the following words :

“accused has not paid the fine amount. Hence,
substantive sentence could not be suspended.

Hence, the application is rejected”.

Therefore, the Petitioner moved the learned District
Judge – 3 and Additional Sessions Judge, Kalyan, but

he did not pass any order and according to the

Petitioner, verbally, told the Petitioner that he was
in charge of four courts so he could not pass any
order. Thereafter, this Court passed an order on 17th

January, 2009 and ordered release of the Petitioner
on bail and sought explanation from the learned

Judges. After the explanations were received, by

another order we requested Shri Gupte learned counsel,
to assist in the matter as Amicus Curie.

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4. Before we go to the provisions of law which
need to be discussed, it will be profitable to have a
glimpse on the explanation. The explanation of

Additional Sessions Judge is that he relied on various
Judgments of the Apex Court which held that it was

advisable that the Court imposes conditions that the
amount of fine be remitted in Court before bail is

granted. He stated that this Court should have
immediately passed an order of releasing the accused on
bail by passing additional order of payment of the part
of the amount. However, the counsel for the

Appellant/Petitioner wanted to be heard in the matter.

    He   gave    time     to
                                 
                                address

reached for hearing at about 6.00 p.m.
the Court when the
The Advocate
matter

was heard for almost 15 minutes and inspite of asking
him to be brief, he had done nothing except delivering
philosophical speech. Hence hearing could not be

concluded. The matter was adjourned to 20th January,
2009. The Appeal has been filed on 30th January, 2009

which meant that for seven days the Petitioner had to
remain in custody before the learned Sessions Judge

could hear the counsel.

5. The learned Sessions Judge who was in charge
of various courts, thereafter, could not look into the

grievance of the Petitioner. But, it is crystal clear
that the learned Sessions Judge did not pass any order
on the application of bail moved by the Petitioner

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alongwith her appeal. Explanation of the Magistrate is
that, he was of the view that Section 389 of Criminal
Procedure Code would not authorize him to suspend the

sentence, if the sentence was of imprisonment and also
of fine. The sentence can only be suspended if the

fine was paid. He stated that he announced the
Judgment at 12.30 p.m. At that time, the accused was

present in the Court. The Judgment was explained to
the accused. The accused was directed to arrange for
fine amount, if she wanted suspension of sentence. But,
till 5.30 p.m. she failed to deposit the fine amount

and therefore, the order was passed which is already
quoted above.

It is not expected from any person to
arrange an amount of Rs.1,73,000/- immediately after

Judgment was pronounced. Section 389 of Criminal
Procedure Code read thus :

“(1) Pending any appeal by a convicted person,
the Appellate Court may, for reasons to be

recorded by it in writing, order that the
execution of the sentence or order appealed
against be suspended and, also, if he is in
confinement, that he be released on bail, or on

his own bond.

(2) The power conferred by this section on an
Appellate Court may be exercised also by the
High Court in the case of an appeal by convicted
person to a Court subordinate thereto.

(3) Where the convicted person satisfies the
Court by which he is convicted that he intends
to present an appeal, the Court shall, –

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(i) where such convicted person, being
on bail, is sentenced to imprisonment for a
term not exceeding three years, or

(ii) where the offence of which such
person has been convicted is a bailable

one, and he is on bail,

order that the convicted person be released on
bail unless there are special reasons for

refusing bail, for such period as will afford
sufficient time to present the appeal and obtain
the orders of the Appellate Court under sub-

section (1), and the sentence of imprisonment
shall, so long as he is so released on bail, be

deemed to be suspended.

(4) When the appellant is ultimately sentenced
to imprisonment for a term or to imprisonment
for lie, the time during which he is so released

shall be excluded in computing the term for
which he is so sentenced.”

Various Judgments have been cited before us, the latest

being (2007)6 S.C.C. 528 in case of Dilip S. Dahanukar

V/s. Kotak Mahindra Co.Ltd. & Anr. After
considering the law laid down by various
Judgments including the Judgment referred to

above, we are of the view that once a person is
convicted and sentenced section 389 would be
applicable, the Judge has to pass an order of bail

mandatorily, but, this order in case of fine could be
subject to conditions. Therefore, the proper course in
this case would have been the Magistrate passing the

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order for bail subject to payment of fine in full
or in part as he would deem fit in the circumstances
of the case by giving reasons. If the Magistrate

failed to do so when the bail application had been
filed before him, he should follow the law.

6. The learned Judge did not pass any order

granting bail subject to payment of fine. As a result,
the petitioner had to undergo imprisonment for more
than a week. In these circumstances, considering the
law and import of Section 389 of the Criminal Procedure

Code, we hold that the person if sentenced to

imprisonment which is covered under Section 389 of the
Criminal Procedure Court, the Magistrate should offer

bail and if the sentence is coupled with fine or
compensation the Magistrate may offer bail by imposing
appropriate conditions as he deems fit in the facts and

circumstances of the case regarding payment of fine in
full or in part. In these case, we have already bailed

out the petitioner. She would continue to remain on
bail till her appeal is disposed of. But, she shall

deposit the amount of Rs.50,000/- within four weeks
from today and shall give a personal bond. If the
amount is not deposited as directed the appellate court
may pass appropriate orders. After the amounts are

deposited in terms of this order, the appellate court
may decide as to whether the amount shall remain in
Court or be handed over to the Respondent.

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7. Before parting, we would like to record the
valuable assistance given by the Senior Counsel

Mr.Shirish Gupte (Amicus curie).

(BILAL NAZKI,J.)

(A.R. JOSHI, J.)

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