IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.592 of 2015
IN
CRIMINAL APPEAL NO.572 OF 2015
SALMAN SALIM KHAN .. APPLICANT
Versus
THE STATE OF MAHARASHTRA .. RESPONDENT
Mr.Amit Desai, Sr.Advocate with Mr.Gopal Krishna Shenoy,
Mr.Shrikant Shivade, Mr.Niranjan Mundargi, Mr.Anand Desai,
Ms.Chandrima Mitra and Mr.Manhar S. Saini, Advocates i/b DSK
Legal for the applicant.
Mr.Sandeep K. Shinde, Public Prosecutor with Mr.Deepak Thakre,
APP and Mr.P.D. Gharat, APP for the Respondent State.
CORAM : ABHAY M. THIPSAY, J.
DATED : 8th MAY, 2015
P.C. :
1 The Appeal filed by the applicant challenging his
conviction in respect of offences punishable under section 304 II of
the IPC, 338 of the IPC, 337 of the IPC and offences punishable
under the Motor Vehicles Act, has just now been admitted by me.
2 By this application, the applicant/appellant prays that
the substantive sentences imposed upon him by the trial court, be
suspended during the pendency of the Appeal, and that he be
released on bail.
3 I have heard Mr.Amit Desai, learned Senior Advocate
for the applicant. I have heard Mr.Sandeep K. Shinde, learned
Public Prosecutor with Mr.P.D. Gharat, APP and Mr.Deepak Thakre,
APP for the State.
4 The most severe sentence that has been imposed upon
the applicant/appellant is in respect of the offence punishable
under section 304 II of the IPC. It is of Rigorous Imprisonment for
a period of 5(five) years, and a fine of Rs.25,000/.
5 Though the learned Public Prosecutor did not oppose
the admission of the Appeal, he opposed the application for the
suspension of the sentence.
6 Mr.Desai, learned Senior Advocate for the applicant,
inter alia, submitted that the offence punishable under section 304
II of the IPC, was not made out against the applicant/appellant. It
is submitted that the evidence to show that the
applicant/appellant was driving the vehicle in question at the
material time, as was adduced during the trial, is not satisfactory.
It is also submitted that there was some evidence to indicate that
the accident occurred due to the bursting of tyre, which evidence
was not taken into consideration by the learned trial Judge. It is
also submitted that the evidence about the applicant being drunk
at the material time, was not satisfactory. Mr.Desai also contended
that the facts of the prosecution case revealed that, at the material
time, there were four persons in the offending vehicle, but the
prosecution did not choose to throw light on as to who the fourth
person was. It is also submitted that one Kamaal Khan was,
admittedly, present in the vehicle at the material time, and
therefore, a material witness, but he was not examined. He
submitted that the applicant/appellant has a good case on merits.
7 The learned Public Prosecutor submitted that there
was sufficient evidence to indicate that the applicant was driving
the vehicle in question at the material time. He submitted that the
evidence of bursting of the tyre was of no consequence, as that
had happened as a result of the accident itself. He also submitted
that the evidence clearly established that the applicant was drunk
at the material time, and that the applicant did possess a degree of
knowledge which would bring the offence committed by him
under the penal provisions of section 304 II of the IPC. The
learned Public Prosecutor also submitted that the theory of there
being a fourth person present in the offending vehicle, at the
material time, is baseless and introduced as an afterthought.
8 It is also submitted that there were valid reasons for
not examining Kamaal Khan as a witness for the prosecution.
9 I have carefully considered the matter.
10 The First Information Report was lodged, alleging
commission of an offence punishable under section 304A of the
IPC. When the chargesheet came to be filed, the accusation of an
offence punishable under section 304 Part II of the IPC, was
levelled. When this was challenged by the applicant/appellant,
this Court quashed the charge in respect of an offence punishable
under section 304 II of the IPC. The trial then proceeded before
the Magistrate on the accusation of the applicant having
committed the offence punishable under section 304 A of the IPC.
17 witnesses for the prosecution were examined. It is thereafter
that the Magistrate formed an opinion that the offence committed
by the applicant amounted to one punishable under section 304 II
of the IPC, and committed the case to the Sessions court. After
committal, a charge in respect of an offence punishable under
section 304 II of the IPC was framed against the applicant, and a
de novo trial was held.
11 The applicant was on bail throughout the trial. Even
after the addition of the charge of an offence punishable under
section 304 II of the IPC, his liberty was not disturbed. The
applicant is not likely to abscond, if released on bail during the
pendency of the Appeal – and there is not even a suggestion to
that effect.
12 Under these circumstances, even on the basis that
there is sufficient evidence to indicate that the applicant was
driving the vehicle in question, at the material time, certainly, a
number of arguable points have been raised, which need serious
consideration. Among other things, whether the offence allegedly
committed by the applicant, would amount to an offence
punishable under section 304 II of the IPC, – and not merely an
offence punishable under section 304 A of the IPC, would also
need examination.
13 This would be of quite some importance as the
offence punishable under section 304 A of the IPC, is bailable, and
invites a lesser punishment. The applicant/appellant could not be
dealt with under the provisions of section 389(3) of the Code of
Criminal Procedure only because the sentence imposed upon him,
is more than a period of three years which was possible only
because of the conviction in respect of an offence punishable
under section 304 II of the IPC. When a statutory right to Appeal
is conferred upon a convict, and when an Appeal is admitted,
indicating that the correctness, legality and propriety of the
judgment of the trial court would be examined by the Appellate
Court, it would be rather unreasonable to suggest that even where
arguable points needing consideration have been raised, the
appellant must be detained in custody in execution of the sentence
till the Appeal is heard.
14 Normally, in such cases, the State does not oppose the
suspension of sentence during the pendency of the Appeal in case
of an accused who is on bail during the trial. However, in view of
the fact that in this case, some opposition has been offered, I have
considered the possibility of directing the Appeal to be
expeditiously heard. Neither the learned Public Prosecutor, nor
the learned counsel for the appellant has any objection to stipulate
that the Appeal shall be heard and decided expeditiously.
15 This is not a case where in spite of the admission of
the Appeal, the appellant should be kept in detention till the
Appeal is decided. It would be proper to suspend the sentence
during the pendency of the Appeal.
16 Application is allowed.
17 Pending the hearing and final disposal of the Appeal,
substantive sentences imposed upon the applicant/appellant shall
stand suspended, and the applicant/appellant shall be released on
bail in the sum of Rs.30,000/(Rupees Thirty thousand) with one
surety in like amount.
18 The applicant shall forthwtih surrender himself before
the trial court, and execute necessary bail bonds in accordance
with this order.
19 The applicant may deposit cash of Rs.30,000/
(Rupees Thirty thousand) in lieu of surety as a temporary
measure. This facility shall be available to the applicant for a
period of two weeks, within which time the applicant is expected
to furnish a solvent surety in the bail amount.
20 The passport of the applicant is already with the
Investigating Agency. The applicant has no objection to the
retention of the passport by the Investigating Agency, during the
pendency of the Appeal.
21 Application is allowed in the aforesaid terms.
22 Hearing of the Appeal is ordered to be expedited.
23 It is decided by consent, that the Appeal shall be
heard finally, as far as possible ,in the month of July 2015.
24 Liberty to supply a private paper book.
25 The Appeal be listed on board for directions on 15th
June 2015.
26 At this stage, Mr.Desai submits that liberty be granted
to the applicant to apply for a permission to travel abroad. It is
needless to say that such liberty has not been taken away, and it
would be open for him to make such an application to this Court,
which, in the event of being made, shall be dealt with, on merits
and in accordance with law.
(ABHAY M.THIPSAY, J)
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