Allowed criminal application under Section 389 CrPC to suspend the applicant's substantive sentence and enlarged him on bail pending appeal, requiring furnishing of a Rs. 30,000 bond and sureties.
Substantive sentence suspended; applicant enlarged on bail with Rs. 30,000 P.R. Bond and one or more sureties in the like amount.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 394 OF 2019 IN
CRIMINAL APPEAL NO. 422 OF 2019
Mohd. Munna Mushtaq Shaikh. ..Applicant. V/s. The State of Maharashtra. ..Respondent.
Ms. Muazma Ansari I/b. Mr. Nilesh S. Das, advocate for applicant. Mr. S.R. Agarkar, APP for State.
Mr. T.K. Mhaske, ASI, Dharavi Police Station, Mumbai.
CORAM : SMT. SADHANA S. JADHAV,J.
DATE : APRIL 15, 2019.
P. C. :
1 Heard the learned Counsel for the applicant and the learned APP for State.
2 This is an application under section 389 of the Code of Criminal Procedure, 1973 seeking suspension of substantive sentence imposed upon the applicant. The applicant has been convicted by the Additional Sessions Judge, City Civil Court, Gr. Mumbai vide Judgment and Order dated 4/5/2018 in Sessions Case No. 603 of 2015, for an ofence punishable under section 397 read with section 34 of the Indian Penal Code and
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sentenced to sufer R.I. for 7 years and to pay fne of Rs. 500/I.d. to sufer S.I. for 3 months.
3 Perused the notes of evidence. More particularly, the evidence of the complainant - P.W.1 and the evidence of the Police Ofcer. P.W.1- Complainant has deposed before the Court that on 7th of April, 2015, while he was returning home on his motorcycle at about 9.15 p.m., when he came near Dharavi bus depot, a motorcycle from the rear side gave a dash to his motorcycle. After he had proceeded further, a motorcycle, from opposite side, gave a dash to his motorcycle. The person driving the motorcycle had snatched gold jewelery, cash and other valuables at the point of gun. One of the persons had put knife on his chest and taken away the leather bag. He had met two police personnels, while they were on patrolling duty, who had taken him to the police station and thereafter, the police had taken him to the spot of incident. He was not in a position to lodge a report on that day and therefore, the report was lodged on the next day. He informed to the police that he has been attacked by unknown persons. The police had shown him the photographs of some known criminal and he had identifed some of the accused on the basis of the photographs. It is
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pertinent to note that the police had not taken him to the hospital nor there is any injury certifcate to corroborate the allegations that he was assaulted by knife. In the crossexamination, he has admitted that the knife was entangled to his body when he reached to the police station. He had submitted the knife to the police station and, thereafter, he was referred to the hospital.
4 There is no medical certifcate to corroborate the injury. That the test identifcation parade conducted by the investigating agency would be of no signifcance in view of the fact that the photographs of the accused persons were shown to the complainant in the police station. More over, P.W.8 PI Sanjay Joshi, attached to the Social Security Branch had deposed that on 30th April, 2015, they h ave received secret information that the accused in Crime No. 178 of 2015 were to reach MIDC area. They were apprehended . They were found in possession of gold bars, which were allegedly converted from the stolen jewelery. The complainant has identifed the said gold bars.
5 The learned Counsel for the applicant submits that co-
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accused Mohd. Touhid Tayyadab Sayyad was also convicted for the similar ofence has been enlarged on bail by this Court vide order dated 29/11/2018. In view of this, the applicant is entitled to be enlarged on bail.
6 The learned APP upon instructions submits that the applicant herein has no criminal antecedents.
7 In view of the above, the applicant deserves to be granted bail during the pendency of the appeal. Hence, following order is passed :
ORDER
(i) The application is allowed.
(ii) The substantive sentence imposed upon the applicant vide Judgment and Order dated 4/5/2018 by the Additional Sessions Judge, City Civil Court, Gr. Bombay in Sessions Case No. 603 of 2015 is hereby suspended. The applicant be enlarged on bail on furnishing P.R. Bond in the sum of Rs. 30,000/- and one or more solvent sureties in the like amount.
(iii) The applicant shall report to the Court of Sessions, Gr.
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Mumbai once in six months on the date assigned by the learned Sessions Court. Upon failure to attend any two consecutive dates, the learned Sessions Court shall report the same to the High Court and the prosecution is at liberty to move for cancellation of bail.
(iv) The applicant shall furnish his residential address and his contact numbers to the concern Sessions Court.
(v) The applicant be enlarged on provisional cash bail of Rs. 30,000/- for a period of 6 weeks from the date of release, within which he shall furnish solvent sureties.
order.
[SMT. SADHANA S. JADHAV, J.]
Talwalkar
2 issues framed by the court
Whether the applicant is entitled to suspension of the substantive sentence and bail pending appeal in the conviction.
What amount of cash bail and sureties are to be furnished for enlargement on bail.
1 provisions across 1 enactments
Mohd. Munna Mushtaq Shaikh
The State of Maharashtra
Sadhana S. Jadhav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
