CASE NO.: Appeal (crl.) 558 of 2005 PETITIONER: Vasant Tukaram Pawar RESPONDENT: State of Maharashtra DATE OF JUDGMENT: 15/04/2005 BENCH: Arijit Pasayat & S.H. Kapadia JUDGMENT:
JUDGMENT
ARIJIT PASAYAT, J.
Leave granted.
Refusal by the Bombay High Court, Aurangabad Bench to accept the prayer of
the appellant, for suspension of sentence and to be released on bail while
admitting the appeal filed by him, is questioned in this Appeal.
Factual backgound facts in a nutshell are as follows :
The appellant faced trial for alleged commission of offence punishable
under Section 13(1) (e) read with Section 13(2) of the Prevention of
Corruption Act, 1988 (in short the `Act’). The allegation against the
appellant was that he was in possession of property worth Rs. 4,12,297
which was disproportionate to his known sources of income. Appellant faced
trial in the Court of Special Judge, Dhule in Special Case No. 77 of 1996.
After considering the available materials on recored, the trial court held
that the accused-appellant was in possession of assests disproportionate to
his known sources of income. The conclusion was arrived at after taking
note of the pecuniary resources of the accused – appellant. The trial court
held that the extent of the disproportionate assets amounted to Rs.
3,10,784. Accordingly, he was convicted for offence punishable under
Section 13(1)(e) read with Section 13(2) of the Act. He was sentenced to
undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 1,00,000
with default stipulation. In confiscation proceedings certain properties
were forfeited to the State Government and these properties had been
attached during trial. Against the conviction and sentence appeals have
been filed before the Bombay High Court. Prayer for bail was made primarily
on the ground that the evidence was not sufficient to show that the alleged
assets acquired were beyond the known sources of income. It was pointed out
that the accused was on bail during trial and considering his age, (he was
nearly 66 years), he ought to be released on bail. In essence, the prayer
was for suspension of the sentence and grant of bail. The High Court noted
that this was not a fit case where it would be desirable to release the
appellant on bail during pendency of the appeal and to suspend the order of
conviction and sentence as prayed for. It was noted that the fine imposed
had not been deposited. Further, on consideration of materials on record
the amount of disportionate assets has been worked out. However, the
hearing of the appeal was directed to be expedited.
In support of the appeal, learned counsel for the appellant submitted that
the fine of Rs. 1,00,000 imposed by the trial court had not been deposited
at the time the High Court considered the application. But the amount has
been deposited subsequently. This was one of the factors indicated for not
accepting the prayer for bail. The minimum sentence prescribed is one year
and the appellant has suffered custody for nearby 10 months. The trial cout
has not considered the relevant aspects and has erroneously come to the
conclusin that the appellant was in possession of assets disproportionate
to the known sources of income.
In response, learned counsel for the respondent-State submitted that the
evidence has been analysed in great detail by the trial court and
considering the rampant corruption which is prevalent in the society today
no leniency should be shown to the appellant. Additionally it is pointed
out that in Special Case No. 99 of 1996 the appellant faced trial with two
others and has been convicted for offences punishable under Sections 13(1)
(c), 13(1)(d) read with Section 13(2) of the Act as well as Sections 120
and 409 of the Indian Penal Code, 1860 (in short the `IPC’). He was
sentenced to undergo rigorous imprisonment of four years and fine for the
offence relatable to Section 120(B) IPC. He was also sentenced to undergo
rigorous imprisonment for seven years and to pay a fine of Rs. 1,00,000
with default stipulation for the offence punishable under Section 409 read
with Section 120 (B) IPC. He was convicted for the offence punishable under
Section 13(1)(c) read with Section 13(2) of the Act read with Section
120(B) and sentenced to undergo imprisonment for two years with fine.
Similar was the sentence for the offence punishable under Section 13(1)(d)
read with Section 13(2) read with Section 120(B) IPC. In this background it
was submitted that this is not a case where any interference is called for.
Learned counsel for the appellant submitted that the conviction in the
other case was not one of the factors considered for rejecting the prayer.
Section 389 of the Code of Criminal Procedure, 1973 (in short 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 of the Appellate Court to record reasons in writing for
order of suspension of execution of the sentence or an order of release if
the accused is in confinement. The said court can direct that he be
released on bail or on his own bond. 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.
We find that one of the reasons which weighed with the High Court was that
fine imposed has not been deposited. Same has been subsequently deposited.
Further, the relevance of the forfeiture of the attached property has not
been considered. We, therefore, direct the High Court to re-consider the
application. While doing so, the effect and relevance of the order of
conviction and sentence passed in S.C. 99 of 1996 shall be considered. We
make it clear that we have not expressed any opinion on the merits of the
case. The High Court, in view of its order dated 15.6.2004 may explore the
possibility of disposal of the appeal by the end of 2005.
The appeal is accordingly disposed of.