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2007 DIGILAW 343 (GUJ)

VIJAYKUMAR SHANTILAL TADVI v. STATE OF GUJARAT

2007-06-11

C.K.BUCH

body2007
( 1 ) THE applicant-original accused No. 1 has prayed for bail pending hearing and final disposal of the Criminal Appeal filed against the order of conviction and sentence passed by the learned Special Judge, Fast Track Court, Kheda at Nadiad in Special (ACB) Case No. 15 of 1999. The applicant is original accused No. 1 and accused No. 2 has been acquitted by the learned trial Judge. However, the learned trial Judge has found that the applicant-accused No. 1 is guilty of the charge of offence punishable under Section 12 and under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act. ( 2 ) THE accused was on bail pending trial and learned Judge after recording conviction has convicted the present applicant for the offence punishable under Section 13 (1) (d) and 13 (2) of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- (Rupees Two Thousand Only), in default of payment of fine to undergo six months simple imprisonment. No separate sentence has been awarded for the offence punishable under Section 7 of the Prevention of Corruption Act. ( 3 ) RULE. Mr. Desai, learned A. P. P. , for the respondent-State waives service of notice of rule. ( 4 ) I have heard Mr. Pathan, learned Counsel appearing for the applicant-appellant and Mr. Desai, learned A. P. P. , for the respondent-State. It is clear from the documents that on the date of order of conviction and sentence, the applicant preferred the bail application under the scheme of sub-section 3 of Section 389 of the Code of Criminal Procedure and prayed for bail, i. e. the day on which he has been found guilty and asked to undergo imprisonment for two years. However, the learned trial Judge rejected the said application condemning the act of the applicant-accused mainly relying on one decision of the Hon ble Apex Court, reported in 2004 Cri. L. J. 919 in case of State of Maharashtra V/s. Gajanand. ( 5 ) A plain reading of the bail application preferred by the applicant before the trial Court does not speak anything about the prayer for suspension of conviction. L. J. 919 in case of State of Maharashtra V/s. Gajanand. ( 5 ) A plain reading of the bail application preferred by the applicant before the trial Court does not speak anything about the prayer for suspension of conviction. However, for the reasons best known to the learned trial Judge placing reliance on the decision of the Apex Court referred herein above, rejected the bail plea. In reality the above referred decision cited by the learned trial Judge speaks about stay of conviction ordered by the High Court. The Apex Court has observed that keeping the conviction in abeyance would facilitate the accused public servant to continue to hold civic post. The learned trial Judge was supposed to consider whether the applicant should be enlarged on bail by placing substantive sentence under suspension so that he can prefer the appeal and pray for bail before the appellate Court. ( 6 ) IT is not a privilege or right of accused to get bail in non-bailable / cognizable offences. However, it is the privilege of the accused to pray for bail pending the trial under the scheme of Section 437 and / or 439 of the Code of Criminal Procedure. In a given case the applicant-accused can get anticipatory bail under the scheme of Section 438 of the Code of Criminal Procedure. When the accused was held entitled to get the bail pending the trial under the scheme of Section 437 of the Code and when the quantum of punishment is undisputedly less than three years then, there is very little scope to reject the bail plea on conviction. The learned trial Court can ascertain whether the amount of fine has been paid by the applicant-accused and can ultimately refuse to grant bail to the accused but the learned trial Judge has not taken care even to state that the amount of fine has been paid or not while exercising discretionary jurisdiction vested with the trial Court under sub-section 3 of the Section 389 of the Code of Criminal Procedure. If the accused is enjoying the bail and there are no speaking reasons to refuse bail plea, even after payment of fine, rejection of such application would be nothing but refusal of exercising discretionary jurisdiction vested with the Court. ( 7 ) AT present the applicant-accused is in jail. If the accused is enjoying the bail and there are no speaking reasons to refuse bail plea, even after payment of fine, rejection of such application would be nothing but refusal of exercising discretionary jurisdiction vested with the Court. ( 7 ) AT present the applicant-accused is in jail. The intention of legislature is clearly reflected in the scheme of Section 389 of the Code of Criminal Procedure. The learned trial Judge has wrongly read and considered the decision of the Apex Court referred to in the order passed below bail application; otherwise, like other accused, the present applicant-accused could have approached this Court conveniently and perhaps in couple of days from the date of order of conviction. No Court should tolerate the corrupt government servant in public service and corruption has been condemned by the Hon ble Apex Court and this Court in number of judgments but have never refused to exercise discretion to enlarge the accused on bail pending hearing and final disposal of the appeal, if the quantum of punishment is less than three years especially to a person enjoying bail pending the trial. There is no question of suspension of order of conviction nor it was prayed before the trial Court. On the contrary, this Court is inclined to observe that it is the privilege of the accused to insist for bail even after the order of conviction and sentence under sub-section 3 of Section 389 of the Code of Criminal Procedure, if the amount of fine has been paid and quantum of punishment is less than three years especially when there is no other reasons to refuse the discretionary relief. Though the relief that can be granted under sub-section 3 of Section 389 of the Code is crucial but the learned trial Judge has to play a very little role while dealing with the bail plea in a case where the accused was asked to undergo punishment for a period less than three years and the amount of fine imposed by the learned trial Court is paid. In that very fact situation, even the appellate Court normally should not refuse the bail. In that very fact situation, even the appellate Court normally should not refuse the bail. The Court is conscious that bail is a rule and jail is an exception is no longer a good law but certain categories of cases obviously would fall in the class where the refusal of bail can be equated with denial of legitimate freedom of personal liberty even in absence of presumption as to innocence. ( 8 ) TODAY the Court has admitted the Appeal. Amount of fine has been paid by the applicant. Applicant was on bail pending the trial. Considering the totality emerging from the record, nature of offence and the fact that one of the accused has been acquitted by the learned trial Court, the present application deserves to be allowed and is accordingly allowed. Pending the hearing and final disposal of the main criminal appeal, the substantive sentence imposed by the learned trial Court is placed under suspension and the applicant-accused is hereby ordered to be enlarged on bail on applicant furnishing Solvent Surety of Rs. 10,000/- (Rupees Ten Thousand Only) with Personal Bond of the like amount on usual terms and conditions. Bail before the lower Court. Rule is made absolute. Direct service is permitted.