1. Rule.
Learned Additional Public Prosecutor and learned advocate Mr. Dagli waive service of Rule on behalf of respondent No.1.State and respondent No.2 respectively.
2. This application preferred under Section 439(2) of the Code of Criminal Procedure is against the judgment and order dated 7.4.2012 passed in Criminal Appeal No.33 of 2012 by 8th Additional Sessions Judge, Rajkot below Exh.6.
3. In nutshell facts are as follows:-
3.1 The applicant is the original complainant who filed a complaint at Rajkot 'B' Division Police Station registered as CR.No.I-82 of 2006, against opponents No.2 and 3 herein for the offences punishable under Sections 201,406,409,417,148, 468,469 etc. read with Section 120B of the Indian Penal Code.
4. Learned Chief Metropolitan Magistrate, Rajkot, after completion of trial, convicted opponents No.2 and 3 and other accused on 19.3.2012 for the offences punishable under Section 409, 114 read with Section 120B of the Indian Penal Code for rigorous imprisonment of 7 years and fine of Rs.5000/- and in default of the fine, for further imprisonment of 6 months has been ordered. For the offences punishable under Section 418 and 114 read with Section 120B of the Indian Penal Code, they are punished for 3 years and with fine of Rs.3000/- and in default, simple imprisonment of 3 years has been awarded. Likewise, they have been also convicted for other offences being Section 420,468,469, 471,471(A) and Section 114 read with Section 120B of the Indian Penal Code and different periods of rigorous imprisonment have been awarded for different offences along with the fine for different offences and all the sentences are directed to run concurrently.
5. Aggrieved by this, opponents No.2 and 3 challenged the same preferring Criminal Appeal no.33 of 2012 and also filed an application under section 389 of the Code of Criminal Procedure for suspension of the sentence imposed by the learned Chief Judicial Magistrate, Rajkot with a further prayer to release opponents No.2 and 3 on bail pending the appeal and the Court allowed such an application below Exh.6 and released the opponents No.2 and 3 on bail.
6. Being dissatisfied with the impugned order, present application has been preferred by the original complainant raising various grounds in this application.
7. It has been argued fervently by learned Senior Advocate Mr. B.B.Naik appearing for the applicant-original complainant that this is a case of fraud of more than Rs.80 lakhs committed by the opponents in connivance with other accused and after detailed consideration of evidence, oral and documentary both, the Court when has awarded the punishment holding the accused guilty of various offences, the appellate Court ought not to have granted bail so easily to these accused. Reliance is also placed on the decision of the Apex Court in the case of Omar Usman Chamadia vs. Abdul and another reported in (2004) 12 SCC 234 to substantiate the submissions that unless there is a reasoned order passed by the Court what weighed with it is impossible to gauge. The trend of granting bail without such reasoning since is severally deprecated by the Supreme Court wherein the Court the order impugned must not be sustained:-
"10. However, before concluding, we must advert to another aspect of this case which has caused some concern to us. In the recent past, we had several occasions to notice that the High Courts by recording the concessions shown by the counsel in the criminal proceedings refrain from assigning any reason even in orders by which it reverses the orders of the lower courts. In our opinion, this is not proper if such orders are appealable, be it on the ground of concession shown by the learned counsel appearing for the parties or on the ground that assigning of elaborate reasons might prejudice the future trial before the lower courts. The High Court should not, unless for very good reasons, desist from indicating the ground on which their orders are based because when the matters are brought up in appeal, the court of appeal has every reason to know the basis on which the impugned order has been made. It may be that while concurring with the lower courts' order, it may not be necessary for the said appellate court to assign reasons but that is not so while reversing such orders of the lower courts. It may be convenient for the said court to pass orders without indicating the grounds or basis but it certainly is not convenient for the court of appeal while considering the correctness of such impugned orders. The reasons need not be very detailed or elaborate, lest it may cause prejudice to the cause of the parties, but must be sufficiently indicative of the process of reasoning leading to the passing of the impugned order. The need for delivering a reasoned order is a requirement of law which has to be complied with in all appealable orders. This Court in a somewhat similar situation has deprecated the practice of non-speaking orders in the case of State of Punjab v. Jagdev Singh Talwandi. That was a case where the High Court in a detention order while allowing the challenge to the detention order directed the release of the detenue before it could give a reasoned order. Even such a practice was deprecated by a Constitution Bench of this Court. Whereas in the instant case it is a final order reversing the order of the learned Sessions Judge wherein the High Court thought it not necessary to give the reasons on the ground that the counsel appearing for the parties did not press for a reasoned order. Consequently, when the matter was taken up for hearing, we had no benefit of the reasons which persuaded the High Court to pass the impugned order. Hence, we have proceeded to decide the appeal on merit based on the material available on record and the arguments addressed before us, from which we have come to the conclusion that the impugned order ought to be set aside. Though a prayer was made on behalf of the first respondent that the matter be remanded to the High Court to facilitate it to pass a reasoned order, without prolonging the proceeding any further by remanding it to the High Court. But we do record our disapproval of the practice followed by the High Court reflected in the impugned order and hope the same will not be repeated."
It is further urged by learned Senior Advocate that these accused had not been granted bail even when the trial was pending although they had knocked the door of Supreme Court as well. Ordinarily when the charges are proved and the accused are held guilty and punished for more than 5 years, the Courts would not exercise the powers of granting bail to such accused as their availability for receiving punishment would also be a serious question and the impact of such act on the society also will need to be considered along with the seriousness of gravity of the offence. He, therefore, urged the Court that the order impugned requires interference.
8. Learned Additional Public Prosecutor Mr. L.R.Pujari has supported the case of the applicant by arguing forcefully that the the bail ought not to have been granted in the circumstances narrated in the application.
9. Learned APP further urged that these accused have, as rightly pointed out from the complainant side, were not given bail even when the charges were not proved beyond reasonable doubt and, therefore, at this stage, the grant of bail was totally unwarranted.
10. Learned Senior Advocate Mr.P.M.Thakker with learned advocate Mr. Ashish Dagli forcefully made his submission by substantiating the factual aspects with number of authorities to harp upon the point that opponents have substantially undergone the imprisonment for the period of 6 years and 2 moths and, therefore, the order of grant of bail in their cases need not be interfered by this Court. He further urged that as substantial period of punishment is already undergone by the accused, the Supreme Court also has permitted bail in such circumstances. Following are the authorities sought to be relied upon:-
1. Ramcharan vs. State of M.P. reported in (2004) 13 SCC 617.
2. Bhagwan Rama Shinde Gosai vs. State of Gujarat reported in AIR 1999 SC 1859.
3. Mansingh vs. Union of India reported in 2004(13) SCC 42.
4. Sham Lal vs. State of Haryana reported in 2004(13) SCC 469.
5. Suresh Kumar vs. State reported in 2001(10) 931.
6. Kiran Kumar vs. State of Madhya Pradesh reported in 2001(9) SCC
211.
7. Asgarali Onali Lokhandwala and another vs. State of Gujarat decided on 11.5.2007 by this Court in Criminal Miscellaneous Application No.2755 of 2007 in Criminal Appeal No.29 of 2007.
10. He also tried to distinguish the authority relied upon by learned Senior Advocate Mr. Naik reported in the case of Omar Usman Chamadia vs. Abdul and another (supra) by pointing out that it was the case of rejection of the bail by the trial Court, where the High Court granted the bail without assigning the reasons and in such circumstances, the Supreme Court stepped in to observe the need of giving cogent reasonings while enlarging the person on bail. Moreover, each case, according to learned counsel, will have to be considered on the basis of the facts on the record and, therefore, he urged this Court not to interfere with the order by emphasizing that there are different parameters for grant of bail than for the cancellation of bail.
11. Before adverting to the submissions of both the sides on factual aspect, it would be worthwhile to discuss the case laws pressed into service. The fact is not in dispute that in the criminal proceedings the Courts are required to assign the reasons and the reasons will have to be cogent and convincing as held by the Apex Court in the case of Omar Usman Chamadia vs. Abdul and another (supra). When the orders are to be scrutinized by the higher forum, non-speaking orders will make it almost impossible for the higher Courts to examine the correctness of such orders. In the instant case, the trial Court has provided sufficient reasons for this Court to examine the correctness of the same which shall be discussed hereinafter.
With emphasis on the factors to be considered at the time of application for grant of bail when appeal is preferred against the conviction, the Supreme Court in the case of Bhagwan Ram Sinde Gosai (supra) held that when the convicted person is sentenced to fixed period of sentence and when he prefers appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances and the Court further held that if for any reason sentence of limited duration cannot be suspended, endeavour should be made to dispose of the appeal on merits, more so, when Miscellaneous Criminal Application for expeditious hearing of appeal is made in such cases.
In case of Kiran Kumar vs. State of Madhya Pradesh (supra), the accused were convicted under Sections 460,376,375 and 506 of the Indian Penal Code, the maximum punishment imposed was for the period of 7 years and when he filed an appeal against the conviction and during the pendency of appeal, the application was moved for suspension of the sentence, the same was rejected by the High Court. The Supreme Court interfered with such order by holding that there is no exceptional reason having been shown for not suspending such sentence relying on the decision of Bhagwan Ram Shinde Gosai vs. State of Gujarat (supra), the Court held that normal rule is that in fixed term imprisonment, when the appeal is pending, sentence should be suspended and rejection is the only way of exception and if the short term sentence is allowed to run out during the pendency of appeal, appeal itself will become, for all practical purposes, infructuous. It, of course, added that this would not mean that the appellate Court should suspend the sentence, if its consequence would be dangerous to the society or on account of any similar defects. The appellant in that case was convicted under Section 307 read with Section 34 of the Indian Penal Code and was sentence to 3 years period of imprisonment.
In the case of Sham Lal vs. State of Haryana (supra) the accused were held guilty of offence punishable under Sections 364, 302 and 34 of the Indian Penal Code, the prayer for suspension of sentence of accused was rejected by the High Court. As other similarly situated accused appellants were already ordered to be released on bail and so far as role assigned to them the Supreme Court allowed the bail pending appeal.
In case was identical in the case of Mansingh vs. Union of India, the appellant was directed to undergo rigorous imprisonment for 10 years with a fine of Rs.1,00,000/- under Section 8/18,18/15 of the NDPS Act, 1985. He had undergone more than 7 years of imprisonment and as there was no likelihood of appeal being heard in the near future relying on the decision of Supreme Court in the case of Dadu vs. State of Maharashtra reported in AIR 2000 SC 3203. The Court suspended the sentence of imprisonment during the hearing of the appeal and released the person on bail to the satisfaction of the trial Court.
In case of Ramcharan vs. State of M.P. (supra), the Supreme Court held that the bail can be cancelled on acceptance of cogent and overwhelming circumstances but not on re-appreciation of the facts.
Again, in absence of any supervening circumstances, warranting recalling of the order, the Court did not find request for cancellation of bail sustainable as reported in case of Dolat Ram vs. State of Haryana.
In the case of Asgarali Onali Lokhandwala vs. The State of Gujarat in Criminal Miscellaneous Application No.2755 of 2007 in Criminal Appeal No.29 of 2007, the Court suspended the sentence under Section 389 as during the bail, accused did not indulge in any offence. The Division Bench of this Court relied on the decision of the Apex Court in the case of Bhagawan Ram Shinde (supra) and other decisions and granted bail to the appellant as he was sentenced to a fixed period of imprisonment and there were no exceptional circumstances for the Court not to exercise the discretionary powers.
In light of the ratio discussed hereinbefore if the order impugned is examined, the Court noted the decision of this Court in the case of Sanjay Naran Patel vs. State of Gujarat reported in 2010(0) GLH-HC-224164 and granted the bail by agreeing with the principles laid therein.
The Court further noted the fact that these accused are in the judicial custody for the last 6 years and 2 months. They have also deposited the fine as directed that if their case is not heard, within a stipulated period, the appeal would become infructuous. It further relied on various judgments to note that there was a need for suspending the order of imprisonment.
Following various decisions of the Supreme Court unless the exceptional circumstances are made out in a matter where there is fixed period of sentence, ordinarily, the appellate Court under Section 389 is expected to exercise its discretion of enlarging the accused on bail. More particularly, in present case, the Court when has noted that the period undergone in the judicial custody is of 6 years and 2 months and the sentence awarded for which the accused have been held guilty are of 7 years with such specific reasons having emerged in the order of the trial Court, no interference is required to be made in this order.
It is emphatically urged before this Court that the accused had not been enlarged on bail during the pendency of the trial and, therefore, at this stage, to allow them to be on bail in case of fraud of nearly Rs.80 lakhs would have adverse impact on the society, particularly when they are held guilty by the trial Court.
The vital fact to be regarded in this application is that the substantial portion of imprisonment the accused have undergone and considering the huge pendency of appeal, it is very unlikely that these appeals are to be taken up in the near future and their appeal otherwise would become infructuous. Therefore, in above mentioned circumstances, when this matter is being examined under Section 439(2) of the Code of Criminal Procedure, no reasons much less any special reason are coming forward for this Court to interfere with the order impugned.
This application therefore, is dismissed in the above terms.
(Ms.
Sonia Gokani, J.) sudhir Top