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2019 DIGILAW 924 (BOM)

MANOJ v. STATE OF MAHARASHTRA

2019-04-03

MANGESH S.PATIL, T.V.NALAWADE

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JUDGMENT : T.V. Nalawade, J. Both the applications are filed under section 389 of the Code of Criminal Procedure for suspension of substantive sentence and for bail. The applicants/ appellants are convicted and sentenced in Sessions Case No.131/2012 which was pending in the Court of learned Additional Sessions Judge, Jalgaon. The trial Court has convicted both the applicants for offences punishable under section 342/34, 346/34, 348/34, 364-A/34, 385/34, 506/34 and 504/34 of Indian Penal Code. Maximum sentence of imprisonment for life which is for offence punishable under section 364-A IPC is given to both the appellants. Heard both the sides. 2. Applicant Manoj Lohar was working as Additional Superintendent of Police in Jalgaon District and at the relevant time he was posted at Chalisgaon. The second applicant is a resident of that place and there is allegation that he was working as agent of Manoj Lohar. The first informant Dr. Mahajan was the Principal of Ayurved College Chalisgaon and he was also member of Zilla Parishad Jalgaon at the relevant time. On 30-6-2009 when the first informant was leaving his hospital premises from Chalisgaon at 11.00 a.m. for the work of his political party, accused P.S.I. Nimbalkar in uniform came there with his two constables and said that he was called by Additional Superintendent of Police, Lohar to the office of Lohar. When Dr. Mahajan said that he had urgency as he wanted to attend the party meeting and he was to make arrangement and he would come later on, the accused Nimbalkar insisted that he should immediately start. By saying so, accused Nimbalkar put the first informant on the back side of his motorcycle and he took the first informant to the office of Lohar. 3. Some party workers followed the accused Nimbalkar upto the office of Lohar and they promised Lohar to see that after the meeting the party of the first informant he will be reached to the office of Lohar but Lohar was not in mood to listen to anybody. After that Lohar made the first informant to sit in his cabin and in angry voice started shouting at the first informant by saying that a complaint was received against him from one contractor of Surat. After that Lohar made the first informant to sit in his cabin and in angry voice started shouting at the first informant by saying that a complaint was received against him from one contractor of Surat. A copy of the complaint was given to the first informant and after reading the contents, the first informant said that the allegations were false and he was not in dues to the contractor and the work was given to the contractor on labour basis and the material for construction was supplied by him. He gave particulars of the contract which was between him and the contractor but Lohar was not in a mood to listen. Even when the work was completed in the year 2005-2006 and the complaint was given to Lohar in August 2009, Lohar said that the first informant need to make the payment of the amount demanded by the contractor and also interest at the rate of 2% per month. Lohar gave threats that if the amount was not given immediately he will put the first informant in jail and he himself will make the investigation of the case. In the presence of Nimbalkar he said that there was a star question in the State Assembly with regard to the said dispute and so there was possibility of registration of crime for offences punishable under sections 420, 406, 407 of Indian Penal Code and other sections. In the presence of the first informant he gave direction to Nimbalkar to take into custody all the record of the institution of the first informant and see that the crime is registered. Lohar gave instance of what was done by him with the people of Chalisgaon Peoples' Bank and said that the first informant would meet the same fate. Then one Yeole of Chalisgaon entered the cabin of Lohar. The first informant was then asked to sit outside of the cabin of Lohar and Yeole, accused No.2 had some talk with Lohar in the cabin of Lohar and after that Yeole came outside. Yeole said to first informant that he knew Lohar and he would mediate in the matter. By saying so he took the first informant inside of the cabin of Lohar and in the presence of Yeole, Lohar again gave similar threats. Yeole said to first informant that he knew Lohar and he would mediate in the matter. By saying so he took the first informant inside of the cabin of Lohar and in the presence of Yeole, Lohar again gave similar threats. Then Yeole said to the first informant that he needs to give something to Lohar otherwise he will not spare him. 4. The first informant was taken to the office of Lohar after 11.00 a.m. and the harassment of the first informant was going on till 8.30 p.m. of that day. Even when the first informant said that he had undergone angioplasty recently and he was heart patient, Lohar did not show any leniency to him and the first informant became scared and started sweating profusely. Yeole said that unless money is given to Lohar, the first informant will not be allowed to leave the office. Then the first informant asked as to how much money will be required to be paid to Lohar and then Lohar gave the figure which was more than Rs.60 lakh. Then there was some negotiation. Lohar was saying that the first informant must have collected money in his college by way of donations. When the first informant said that in the last three years the quota given to the management could not be filled and he had no money but Lohar was not convinced. Ultimately Yeole suggested that amount of Rs.25 lakh should be given to Lohar and amount of Rs. 21 lakh needs to be given to the contractor. They said that the amount will not be reduced. Lohar then said that some amount needs to be given to Nimbalkar who was attached to the concerned police station. 5. The mobile phone of the first informant was taken away from him and only to contact the relatives to collect money he was allowed to use the mobile phone. The first informant realized that it was not possible to collect such huge cash amount in night time and so Lohar asked to take cheques in favour of the contractor first. The first informant contacted the staff and asked him to bring the cheque book. Three cheques of total amount of Rs.25 lakh were obtained by giving threats in the name of Shivam Construction from the first informant. The first informant contacted the staff and asked him to bring the cheque book. Three cheques of total amount of Rs.25 lakh were obtained by giving threats in the name of Shivam Construction from the first informant. Then Lohar said that the amount of Rs.25 lakh needs to be given to him otherwise he will not allow the first informant to leave the office. The first informant again tried to see as to whether such cash can be collected by contacting the relatives but they informed that such huge cash amount was not available. Even his father-in-law one Digambar Mali said that it was not possible to make arrangement of the cash amount in the night time but he would do something by 11.00 a.m. of the next day. 6. At about midnight hours the father-in-law of the first informant visited the office of Lohar and he saw that Lohar was still there along with other accused Nimbalkar and Yeole. Lohar then left his office by instructing the first informant to hand over the cash to Yeole. Accused Nimbalkar, one constable and Yeole then took the first informant to the house of uncle of Yeole which is situated in the vicinity of the office of Lohar. Evidence is given by the first informant that he was abducted and he was kept on the first floor of the said house after midnight hours on that day. After 2.00 a.m. Yeole decided to change the place of keeping the first informant and then they took the first informant in a four wheeler to one house. Nimbalkar who was armed with fire arm remained in the company of Yeole. In the second house belonging to Yeole Nimbalkar stayed in the company of Yeole and there also the first informant was not allowed to contact any relative from that place. 7. On the next day at about 10 to 10.30 a.m. son of the first informant and members of their political party came to the house of Yeole in search of the first informant and they met Nimbalkar there and requested him to allow them to meet the first informant but Nimbalkar refused to allow them to meet the first informant. Nimbalkar then contacted Lohar and Lohar instructed Nimbalkar to bring the first informant to his office. Nimbalkar then contacted Lohar and Lohar instructed Nimbalkar to bring the first informant to his office. Nimbalkar said that he was taking the first informant to the office of Lohar and so the son of the first informant and party members left the place of Yeole. From the house of Yeole a relative of Yeole and Nimbalkar took the first informant to the office of Lohar. In the office, Lohar was already present and he gave threat to the first informant not to disclose the incident to anybody. He gave abuses to the first informant and asked as to whether arrangement of money was made or not. He gave threat that he would obtain police custody remand of 7 days and he will show as to what can happen in police station. The first informant said that his fatherin-law had promised to make arrangement and he said that the father-in-law would come with money upto 1.00 p.m. Lohar gave threat that if money is not paid to him by 1.00 p.m. crime will be registered. 8. After 1.00 p.m. the son of the first informant came to the office of Lohar but the son was not allowed to see the first informant. At 1.00 p.m. Lohar asked again about the money. The first informant requested for time by saying that his father-in-law had started with the money and he would arrive by 2.00 to 3.00 p.m. and so Lohar gave time upto 3.00 p.m. The first informant then talked on phone with his father-in-law in the presence of Lohar to collect that information. The son of the first informant somehow entered the cabin of Lohar and out of frustration he requested to put him in jail but set free his father. The son of the first informant was emotionally charged as his father was sick. Somehow Lohar learnt that the son of the first informant had contacted the Superintendent Police and he started giving abuses to the son of the first informant and gave threat that he would put even the son of the first informant behind the bars. The first informant said that some party workers must have contacted the Superintendent of Police but Lohar was not in a mood to listen. The first informant said that some party workers must have contacted the Superintendent of Police but Lohar was not in a mood to listen. When the conversation was going on, the Superintendent of Police gave a call to Nimbalkar and asked him to allow the first informant to have talk with him. When the first informant was having talk with the Superintendent of Police, by his side Lohar and Nimbalkar were standing. Lohar gave threats to say that no trouble was given to the first informant by Lohar and accordingly information was supplied by the first informant to the Superintendent of Police. In the mean time the Superintendent of Police directly called the son of the first informant and asked the son to come to the office of the Superintendent of Police. Then Lohar said to the son of the first informant not to take the matter further and after that Lohar allowed the first informant to leave the office and that was in the noon time. 9. On 1-7-2009 when the first informant was in the custody of Lohar, son of the first informant, had faxed a complaint to the District Superintendent of Police. In connection with that matter on 2-7-2009 the first informant was called to the office of the Superintendent of Police. The complainant made complaint against Lohar and aforesaid other members in respect of the aforesaid incident and requested the Superintendent of Police for registration of crime. Crime was not registered and so on 5-7-2009 the first informant, his son and members of his political party approached the Hon'ble Chief Minister to make a request to register the crime but the crime was not registered. Criminal Writ Petition No.583/2009 was then filed in this Court for direction to register crime and then on 16-7-2009 F.I.R. was recorded and crime was registered. It is not disputed that only after filing of the writ petition by the first informant, crime came to be registered and that was done after about 16 days of the incident. The submissions made show that close relatives of accused No.1 were highly placed at the relevant time in police department. This circumstance needs to be kept in mind as the evidence of the first informant and the aforesaid circumstances show that protection was given apparent by the higher ups in police department to accused No.1 Lohar by many ways. The submissions made show that close relatives of accused No.1 were highly placed at the relevant time in police department. This circumstance needs to be kept in mind as the evidence of the first informant and the aforesaid circumstances show that protection was given apparent by the higher ups in police department to accused No.1 Lohar by many ways. First, F.I.R. was not recorded then arrest of accused No.1 was not made even after registration of serious crime against him. It can be said that the Superintendent of Police was initially satisfied about the illegalities in the action of Lohar but he also did not dare to take further action like registration of crime and arrest of Lohar, accused No.1. The submissions made and the record show that accused No.1 was placed under suspension after quite some time. This suspension was challenged in this Court. When this Court refused to interfere, the matter was taken to the Supreme Court by Lohar but there also he failed. Even when the Court had refused to interfere in the order of suspension made against accused No.1, subsequently Government on its own reviewed the matter and reinstated accused No.1 on the post. 10. The submissions made and the record show that accused No.1 attempted to get relief of anticipatory bail but he failed in getting that relief in the Sessions Court. The High Court granted anticipatory bail to accused No.1 and that order was challenged in the Apex Court by the first informant. The Apex Court set aside the order of granting anticipatory bail in favour of accused No.1 by order dated 24-1-2011 but after that also the accused No.1 was not arrested. The applicant No.1 did not surrender in the case even when he was Additional Superintendent of Police. 11. By filing parallel proceeding like writ petition (No.868/2009) for quashing of the F.I.R. itself the accused No.2 tried to create more complications. But the said petition came to be dismissed on 10-12-2009. This order was challenged in the Apex Court by accused No.1 but the said proceeding also came to be dismissed on 4-1-2010. 12. The investigating officer in the mean time submitted proposal for sanction only in respect of the offences punishable under sections 166, 346, 348, 385, 504, 506 read with 34 of Indian Penal Code and sections 9, 10, 13(1) of the Prevention of Corruption Act. 12. The investigating officer in the mean time submitted proposal for sanction only in respect of the offences punishable under sections 166, 346, 348, 385, 504, 506 read with 34 of Indian Penal Code and sections 9, 10, 13(1) of the Prevention of Corruption Act. He did not seek sanction in respect of offence punishable under section 364-A of Indian Penal Code. It was submitted to the sanctioning authority that already proposal was made before Judicial Magistrate for deletion of section 364-A of Indian Penal Code. 13. Even when in the past in the first round the accused No.1 had failed to get the relief of anticipatory bail, he filed one more proceeding bearing Criminal Application No.250/2011 for the relief of anticipatory bail in Sessions Court. The Sessions Court rejected that application. The High Court refused anticipatory bail by rejecting Criminal Application No.1022/2011 on 23-3-2011. On 29-4-2011 proceeding filed to challenge the order of the High Court in the Supreme Court came to be dismissed. 14. In view of the aforesaid circumstances, after cancellation of anticipatory bail by the Apex Court on 24-1-2011 it was necessary for the investigating agency to take necessary steps but the accused No.1 was not arrested. It was cognizable offence and it was serious in nature. Surprisingly on 12-9-2011 the investigating officer applied to the Judicial Magistrate for issuance of warrant against accused No.1 when there was no such necessity. The Judicial Magistrate initially refused to issue such warrant. Then again one more application was filed in Sessions Court and warrant of arrest was allowed. 15. The accused No.1 filed application before the Judicial Magistrate on 14-10-2011 for bail by appearing before the Magistrate. Bail was granted by the Judicial Magistrate on the same day. Thus actual arrest by police of accused No.1 was avoided. 16. A tactic was played by not making proposal for getting sanction in respect of section 364-A of IPC by the investigating agency which was to do favour to accused No.1 and this circumstance was subsequently misused for getting bail also. The first informant filed a writ petition for direction to see that the accused No.1 is prosecuted for the offence punishable under section 364-A of IPC also. Then revised proposal was made by the investigating agency to the Government for getting sanction in respect of section 364-A of IPC also. The first informant filed a writ petition for direction to see that the accused No.1 is prosecuted for the offence punishable under section 364-A of IPC also. Then revised proposal was made by the investigating agency to the Government for getting sanction in respect of section 364-A of IPC also. Accused No.1 then filed Criminal Writ petition No.821/2012 at Principal Seat of this Court for seeking deletion of section 364A but the petition was withdrawn. 17. The order of granting bail made by the Judicial Magistrate on 14-10-2011 was challenged by the State by filing proceeding before Sessions Court Jalgaon (Criminal Misc. Application No.169/2011). This application was allowed and bail was cancelled. This order was challenged by filing writ petition by accused No.1 in the High Court bearing Criminal Writ Petition No.1009/2011 but that petition came to be dismissed on 25-1-2012. Even after that no concrete steps were taken against accused No.1 and show was created by filing proceeding before the Judicial Magistrate to get order under section 82 of the Code of Criminal Procedure. Such order was also made in May 2012 and the accused No.1 was declared as absconding accused. On 28-5-2012 the sanctioning authority granted sanction in respect of offence punishable under section 364-A of IPC also. The accused No.1 came to be arrested on 24-6-2012. The accused No.1 filed application for bail in Sessions Court on 11-7-2012 but this application came to be rejected. Instead of filing proceeding in the High Court at Aurangabad Bench, the applicant No.1 filed proceeding to challenge the revised sanction, sanction given for offence punishable under section 364-A of IPC at Principal Seat at Mumbai. In the said proceeding the State Counsel sought adjournment on 22-8-2012 and this adjournment was strongly opposed by the counsel of accused No.1. The Bench at the Principal Seat was pleased to issue order in favour of accused No.1 and protection was given of not to take follow up action on the basis of sanction given for offence punishable under section 364-A of IPC. After that application filed for regular bail bearing No.3623/2012 at Aurangabad Bench was pressed in September 2012 and in view of the aforesaid circumstances the learned Single Judge granted regular bail to accused No.1 on 18-10-2012. After that application filed for regular bail bearing No.3623/2012 at Aurangabad Bench was pressed in September 2012 and in view of the aforesaid circumstances the learned Single Judge granted regular bail to accused No.1 on 18-10-2012. Thus, by using various tactics mentioned above, the accused No.1 avoided his arrest from the date of registration of crime till 24-6-2012, for more than 3 years and then by using the aforesaid tactics and using his resources he could get some order and on the basis of that order he got bail within three and half months of the date of arrest. At the cost of repetition, this Court is mentioning that he got the order of reinstatement also even when up-to the Supreme Court the order of suspension was confirmed. This background needs to be kept in mind while considering the prayer made in the present matter of suspension of substantive sentence and for giving bail to accused No.1. In respect of accused No.2 Yeole it can be said that no steps were taken against him and he was simply watching the steps which accused No.1 was taking and he came to be arrested on 13-3-2012. He remained behind the bars only from 13-3-2012 to 2-11-2012 and not from date of registration of crime and that had happened due to aforesaid circumstances. 18. For proving the aforesaid case of the prosecution, there is evidence of the first informant, Dr. Mahajan (PW 1), Manoj Mahajan (PW 2), son of the first informant. Nitin Jadhav (PW 3), one employee of Ayurved College which was under control of the first informant, who had taken the cheque book to the office of accused No.1. Admittedly the cheque book was brought by this witness and from this cheque book three post dated cheques were issued in the names as per the instructions given to PW 1. There is evidence of Anil Deshmukh (PW 4), Police Head Constable who has given evidence on the presence of the first informant, Mahajan, Yeole etc. in the chamber of Lohar, accused No.1. His evidence shows that till 10.30 p.m. the accused No.1 was present in the office and the first informant and Yeole were also present in the office of accused No.1. 19. in the chamber of Lohar, accused No.1. His evidence shows that till 10.30 p.m. the accused No.1 was present in the office and the first informant and Yeole were also present in the office of accused No.1. 19. There is evidence of panch witness Jagannath Mahajan (PW 5) on the spot, the office of the accused No.1 where the first informant was taken and was detained on that day. There is evidence of Gokul Sonawane, Police Naik (PW 6) which is to the effect that accused No.3 Nimbalkar had asked him to come with him for following the directions given by Lohar, accused No.1. His evidence also shows that the first informant had said that there was urgent meeting of the party and he would come afterwards but in his presence Nimbalkar had taken the first informant with him and he had followed them upto the office of accused No.1. 20. There is evidence of Digambar Mali (PW 10), father-in-law of the first informant which is consistent with the evidence of the first informant (PW 1). He has given evidence on the attempts made by him to collect the cash. This evidence is sufficient to infer that even after handing over the cheques there was insistence to give cash amount of Rs. 25 lakh. He has given specific evidence that Dhiraj Yeole, accused No.2, asked him to handover the money and said that if the money is not given and if the first informant tries to leave, show of encounter will be made, he will be finished. His evidence shows that on the next day he had arranged the money to meet the demand and he has given evidence that there were calls from the first informant on the next day also as accused No.1 was insisting for giving money first. His evidence shows that, though he had arranged the money he was then contacted by the first informant and he was told that the first informant had reached his own residential place and that this witness should return the money to the persons from whom he had collected it. 21. There is evidence of Rastogi (PW 13) who was working as District Superintendent of Police of Jalgaon at the relevant time. 21. There is evidence of Rastogi (PW 13) who was working as District Superintendent of Police of Jalgaon at the relevant time. He has given evidence that he had received complaint from the son of the first informant which was to the effect that accused No.1 had illegally detained the first informant and there was demand of money for the release of the first informant and that demand was made by accused No.1. His evidence shows that even when the first informant was still in custody of accused No.1, accused No.1 gave false information that he had already released the first informant. He has deposed that he then contacted the son of the first informant and then he realised that the first informant was still detained by accused No.1. His evidence shows that accused No.3 admitted on phone that the first informant was still there in the office of accused No.1. His evidence shows that he had then suspicion about initial information given by accused No.1 and so he had given written order to instruct that if any legal action was possible that needs to be taken by police station or by Additional Superintendent of Police but only after briefing him. His evidence shows that the allegations were serious in nature and he had passed on information to his superiors like Director General of Police Mumbai. He made station diary at Chalisgaon on 2-7-2009 when he made inquiry by visiting that police station. His evidence shows that he had given report that the allegations made by the first informant against Lohar were correct. 22. The oral evidence and the documentary evidence show that three cheques which were obtained from the first informant were obtained on the first day itself and even after giving of the three cheques, the first informant was kept in custody. This circumstance is relevant as evidence is given that only for extracting money, the amount of Rs.25 lakh, the first informant was further detained. This evidence is against both accused Nos.1 and 2. This circumstance is relevant as evidence is given that only for extracting money, the amount of Rs.25 lakh, the first informant was further detained. This evidence is against both accused Nos.1 and 2. This evidence needs to be considered in the background of other circumstances like no record was created like issuing notice to the first informant for calling him to the office of the Superintendent of Police, no record was created even when from 11.00 a.m. of the first day till the noon time of the next day at the instance of accused No.1, the first informant was illegally detained initially in the office of the accused No.1 and then for some time in the custody of Yeole where Nimbalkar was keeping watch and then again the first informant was detained in the office of accused No.1. This evidence is more than sufficient for the present purpose to hold that there was attempt of extortion of cash of Rs.25 lakh and actually three cheques were obtained by accused No.1 by using coercive methods. It is also not disputed that no crime at all was registered against the first informant in respect of the so called civil dispute which was raised by the contractor against the first informant. These circumstances will be kept in mind while deciding the appeal. The trial Court has believed these witnesses and when there is finding of the trial Court in respect of oral evidence, the appellate Court is ordinarily not expected to interfere in that finding. Thus, at present it cannot be inferred for the present purpose from any angle that the accused No.1 was discharging the duties. Accused No.2 Yeole has criminal background and criminal cases, even for offence of murder, were registered against him but he was used as agent by accused No.1 for negotiations and for extracting money from the first informant. It can be said that only due to the background of accused No.1 like his close relatives were highly placed in police department and administrative services, he could show such courage. 23. These days police officers like accused No.1 are virtually acting as leaders of gangs of dacoits. It can be said that people fear police like accused No.1 more than the dacoits who commit road robbery or who commit offence after house breaking. 23. These days police officers like accused No.1 are virtually acting as leaders of gangs of dacoits. It can be said that people fear police like accused No.1 more than the dacoits who commit road robbery or who commit offence after house breaking. When police officers get involved in such criminal activities the victims feel that they are helpless. In the present case, even when the first informant was a worker of a political party, he could do nothing and that speaks volume about the things how they work in our society now. Fear needs to be created in the minds of such persons otherwise such activities are bound to increase and persons with similar criminal intention will increase in number. Such highly placed officers can do anything with revengeful attitude and due to them there can be danger to the lives of the witnesses also if they are on bail. That needs to be kept in mind by the courts while considering application for suspension of substantive sentence. 24. Section 389 of the Code of Criminal Procedure provides for suspension of sentence and release of appellant on bail. The provision runs as under. "389. Suspension of sentence pending the appeal; release of appellant on bail.-- (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. Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. (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 a convicted person to a Court subordinate thereto. (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 a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies that Court by which he is convicted that he intends to present an appeal, the Court shall,-- (i) where such 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 life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced." In the provision the word "may" shows that discretion is given to the appellate court by this provision. But there is the condition like "for reasons to be recorded in writing" and that needs to be complied with by the appellate Court. 25. In section 389 of the Code of Criminal Procedure the grounds on which suspension of sentence is possible are not specifically mentioned but the aforesaid condition shows that the suspension of sentence in appeal is not to be made as a matter of course. The routine conditions for grant of bail given in sections 437 and 439 of the Code of Criminal Procedure are applicable but the aforesaid condition shows that due to conviction the presumption of innocence is not available in appeal like in routine bail application and so the aforesaid condition is laid down. It also shows that discretionary power is given but the power needs to be exercised judiciously. For that, broad features of the case with reference to the evidence available on record need to be considered by the Court. It also shows that discretionary power is given but the power needs to be exercised judiciously. For that, broad features of the case with reference to the evidence available on record need to be considered by the Court. The provision shows that it is open to the appellate Court to reject the application filed for bail in appeal without giving notice to the Prosecutor but if the Court is inclined to grant the relief, the Court must give notice to the Prosecutor for considering the objections if any the State may have. Thus, more caution is required to be exercised at the time of grant of bail in appeal than which is required to be exercised in a proceeding filed under section 439 of the Code of Criminal Procedure. 26. In view of the wording of the provision of section 389 of the Code of Criminal Procedure it needs to be kept in mind by the courts that the mere fact that during trial, the accused was on bail and there was no misuse of liberty does not per se warrant suspension of substantive sentence. What really necessary is to consider whether the reasons exist to suspend the execution of the substantive sentence and grant of bail. In the case reported as [Sidhartha Vashisht v. State (NCT of Delhi), (2008) AIR SC 2889] it is laid down that only in exceptional cases benefit of suspension of sentence can be granted. Another case reported as (Atul Tripathi v. State of U.P. and Another, (2014) AIRSCW 4326) can be referred on this point. 27. In the case reported as [Sidhartha Vashisht v. State (NCT of Delhi), (2008) AIR SC 2889] it is laid down that only in exceptional cases benefit of suspension of sentence can be granted. Another case reported as (Atul Tripathi v. State of U.P. and Another, (2014) AIRSCW 4326) can be referred on this point. 27. In the case of Atul Tripathi (cited supra) and in other cases some factors are quoted which need to be considered by the appellate court and they are as under : (i) gravity of the offence; (ii) nature of the crime; (iii) age of the convict; (iv) antecedents of the convict; (v) impact on public confidence in courts; (vi) the manner of commission of the offence and on that basis the desirability of releasing the accused on bail and particularly when he is a public servant and when he had misused his position; and, (vii) the circumstances that he had avoided arrest by investigating agency by misusing the procedure given by law during investigation also need to be kept in mind as such circumstance also affect the public confidence in courts and public start believing that only influential persons can avoid their arrest and detention even when they are involved in such serious crime. Further, as a normal practice for offence punishable with imprisonment for life the Court is not expected to suspend the sentence. 28. This Court has already quoted relevant portion of the evidence and the conduct of the accused No.1 during investigation. The learned Senior Counsel for the appellant, accused No.1 submitted that even if the evidence is accepted as it is, that evidence does not make out the offence punishable under section 364-A of Indian Penal Code. In support of this contention he placed reliance on reported cases like : (i) (Philips Fadrick Dsouza v. The State of Maharashtra & Another, (2008) 3 BCR 661 (Bombay High Court)); (ii) (Nura and Others v. Rex, (1950) CriLJ 29 (Allahabad High Court)); (iii) (Lalit Thakare v. State of Maharashtra, (2018) 2 MhLJ(Cri) 788 (Bombay High Court)). This Court has carefully gone through the observations made in the cases cited by the learned Senior Counsel for the accused No.1. The facts and circumstances of each and every criminal case are always different. The relevant facts in respect of provision of section 364-A of I.P.C. are already quoted by this Court. 29. This Court has carefully gone through the observations made in the cases cited by the learned Senior Counsel for the accused No.1. The facts and circumstances of each and every criminal case are always different. The relevant facts in respect of provision of section 364-A of I.P.C. are already quoted by this Court. 29. The approach of the investigating agency to avoid the use of provision of section 364-A of IPC is already mentioned by this Court. The learned Senior Counsel for accused No.1 submitted that the first investigating officer had not given proposal for sanction in respect of offence punishable under section 364-A IPC as that offence is not made out. Section 362 of the Indian Penal Code speaks about abduction. It runs as under :- "362. Abduction.-- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person." Section 364-A of Indian Penal Code is as under : "364-A. Kidnapping for ransom, etc.-- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine." 30. The relevant evidence shows that accused No.1 misused his position his post as Additional District Superintendent of Police. He used his agent, accused No.2, for extortion. He compelled the first informant to come to his office and he avoided to use the provision of section 160 of the Code of Criminal Procedure as he wanted to avoid to create the record. There is no record to show that prior to that day F.I.R. or any complaint was given by the contractor to the concerned police station. The contractor is not examined as defence witness. On the contrary, the record shows that one Advocate had taken the contractor directly to accused No.1 and the things started from that point. There is no record to show that prior to that day F.I.R. or any complaint was given by the contractor to the concerned police station. The contractor is not examined as defence witness. On the contrary, the record shows that one Advocate had taken the contractor directly to accused No.1 and the things started from that point. The evidence shows that accused No.3 had gone to the place of the first informant in uniform and with the help of two constables he had virtually picked up the first informant and had taken him to the office of the accused No.1 even when there was urgent work to the first informant like the need of his presence for the meeting of his political party. Even when he had requested to allow him to attend the meeting of the party first, he was forced to come to the office of the Additional Superintendent of Police and no option was left to him. Thus, atmosphere of use of force was created and it can be inferred that force was used to take the first informant to the office of the accused No.1. The Court is also expected to keep in mind that when senior police officer like accused No.3 comes with two constables and ask any citizen to come to police station or the office of the Additional Superintendent of Police, the citizen cannot avoid and he goes with the police to the police station or the office of the Additional Superintendent of Police. There is circumstance like accused No.3 did not supply information as to why presence of the first informant was required in the office. This way, accused No.3 caused motion of the first informant from the place of the first informant by using his authority and even the body power was used by showing that he was there with two police constables. As information was not supplied it can be said that by deceitful means the first informant was induced by accused No.3 to come to the office of the accused No.1. The evidence on record is sufficient to infer that for more than 28 hours the first informant was kept in detention and all the while the accused No.3 was there to see that the first informant does not leave the place where he was taken. The evidence on record is sufficient to infer that for more than 28 hours the first informant was kept in detention and all the while the accused No.3 was there to see that the first informant does not leave the place where he was taken. Evidence on the record is there to show that accused No.1 directly gave threat of causing harm by registering crime. Accused No.2 gave another kind of threat and that was of possibility of encounter. Thus, there is evidence on the ingredients of provision of section 364-A of the Indian Penal Code. The atmosphere created by accused No.3 and his constables also, the accused No.1 would create reasonable apprehension of death or harm in the mind of any ordinary citizen. The circumstance that even after giving of three cheques by the first informant he was detained is sufficient to infer that accused No.1 wanted to extort money under threat of registering crime and it can also be inferred that there was extortion of money as three cheques were obtained. Though the provisions of the Prevention of Corruption Act are not used, these circumstances cannot be ignored. Thus, the detention of the first informant was apparently illegal. The endorsement appearing on the so called complaint of the contractor is apparently afterthought and it must have been made after the intervention of the District Superintendent of Police in the matter. These observations are made in view of the law laid down by the Supreme Court in the aforesaid matters that the broad features of the evidence need to be considered at the time of consideration of such matter. For all these reasons this Court holds that both the accused Nos.1 and 2 are not entitled to get the discretionary relief. Releasing them on bail will send a wrong signal to public at large. Such persons need to be kept behind the bars so that others indulging in similar types of offences learn lesson and fear is created in their mind. In the result, both the applications are rejected. Criminal Application No. 1061 of 2019 in Criminal Appeal 104/2019 filed for permission to assist the Public Prosecutor is allowed and disposed of. 31. Appeals are expedited and will be decided within one year. If the appeals are not decided within one year, there will be liberty to apply to this Court again.