Bombay High Court
Rajaram S/O Ranba Zende vs The State Of Maharashtra on 31 January, 2019
Author: K.K. Sonawane
Bench: K.K. Sonawane
1 PB-1CriA-431-19-I
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 431 OF 2019
IN
CRIMINAL APPEAL NO. 948 OF 2018
RAJARAM S/O RANBA ZENDE
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for applicant : Mr. Manoj D. Shinde
APP for respondent : Mr. K.D. Munde
...
CORAM : K.K. SONAWANE, J.
DATED : 31st JANAUARY, 2019 Order :-
The applicant-accused preferred the present application invoking remedy under Section 482 of the Code of Criminal Procedure (Cr.P.C.) thereby agitating the validity, legality and propriety of the impugned order of remanding applicant to judicial custody for compliance of provision of section 390 of the Cr.P.C., as directed by this Court.
2. The applicant was arraigned for the offence punishable under Sections 7 and 13(1)(d) read with section 13 (2) of the Prevention of Corruption Act, 1988. Learned trial Court framed the charge against the applicant and proceeded to evaluate the evidence adduced on record on behalf of prosecution. The learned trial Court arrived at the conclusion that the prosecution failed to prove charges of bribery pitted against applicant-accused beyond reasonable doubt. ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:59 :::
2 PB-1CriA-431-19-I Therefore, learned trial Court exonerated the applicant from the charges levelled against him and passed the judgment and order of acquittal, which is subject-matter of Criminal Appeal No. 948 of 2018 pending before this Court.
3. It is to be noted that in order to present an appeal under section 378 of Cr.P.C against acquittal of applicant-accused, prosecution moved an application under section 378(3) of the Cr.P.C. for seeking leave to present an appeal. After due consideration, this Court under order dated 17-12-2018 accorded leave to the prosecution to file an appeal for redressal of its grievance. This Court also issued direction for compliance of provision of Section 390 of Cr.P.C. pending the appeal.
4. Pursuant to directions for compliance of Section 390 of Cr.P.C. present applicant appeared before the learned trial Court and preferred application to enlarge him on bail pending appeal. Learned Additional Sessions Judge found reluctant to admit the applicant on bail and for compliance of provision of section 390 of Cr.P.C. he passed the impugned order and remanded the applicant-accused to judicial custody pending the appeal.
5. Being aggrieved by the impugned order of refusing to admit the applicant on bail, the applicant rushed to this Court by availing remedy under section 482 of the Cr.P.C. put in question validity, legality and propriety of the impugned order of committal of the accused to prison.
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3 PB-1CriA-431-19-I
6. Learned counsel for the applicant vehemently submits that the charges levelled against accused are pertains to Prevention of Corruption Act, 1988. During the course of trial, he was on bail. There was no any allegation of misuse of liberty. The applicant is a senior citizen of 63 years old pensioner. There is no possibility of absconding of the applicant nor question arises for tampering any sort of evidence of the prosecution. In such circumstances, there is no propriety to commit the applicant to prison pending the appeal.
7. Learned APP raised objection and submits that the learned trial Judge after factual aspects of the matter passed the impugned order. There is no error committed by the trial Judge while passing the impugned order.
8. Having considered the submissions advanced on behalf of both sides, it appears that the present matter is in regard to field of criminal justice involving liberty of the applicant. It is an admitted fact that while dealing with proceeding of appeal filed on behalf of prosecution against acquittal of the applicant, this Court accorded leave under Section 378(3) of Cr.P.C. to present an appeal for reassessment of evidence against applicant. This Court also issued directions for compliance of provision of Section 390 of the Cr.P.C. to secure presence of applicant-accused during the course of hearing of appeal. The provision of section 390 of Cr.P.C. manifestly makes it clear that the Court, which issued a warrant for arrest, has the power to admit such arrested to bail and that power is not specifically excluded by the provision of Section 390 of Cr.P.C.. Therefore, it follows that as the ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:59 ::: 4 PB-1CriA-431-19-I Code does not make specific provision for the exercise of that power, it could be exercised under section 482 of the Cr.P.C. If the powers are delegated to the sub-ordinate Court that does not mean that High Court is divested of the powers initially possessed by it. Therefore, there is no impediment to entertain the present application filed under Section 482 of Cr.P.C. for exercise of powers prescribed under Section 390 of the Cr.P.C.
9. As a matter of fact, whenever orders are passed under section 390 of the Cr.P.C. directing issuance of warrant, normally, the directions are issued to produce concerned accused before the Court, which tried him for the charges levelled on behalf of prosecution. It is to be noted that once accused is produced before the trial Court for compliance of provision of Section 390 of the Cr.P.C., the discretion vested in trial Judge either to remand the accused in judicial custody or admit him on bail. But, such discretion is required to be exercised in accordance with established principle of law. It is essential to keep in mind that in such cases the accused has already subjected to trial and was not found guilty. Therefore, until findings are reversed, the accused is entitled for his liberty which is constitutionally guaranteed right under Article 21 of the Constitution of India. But, in some exceptional compelling circumstances, accused can be deprived for such constitutional right of liberty. It is explicit and clear that in exceptional cases only where the Court comes to the conclusion that it is necessary to remand the accused to prison, in such cases, only order of remand can be passed, but it should be supported by the sufficient and cogent reasons. It is expected that such order should not be ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:59 ::: 5 PB-1CriA-431-19-I passed mechanically as it takes away liberty of the accused, who was found not guilty of the charges levelled against him.
10. In the matter in hand, obviously the applicant was tried for the offence punishable under Sections 7 and 13(1)(d) read with section 13 (2) of the Prevention of Corruption Act, 1988. The special enactment prescribed that trial for bribery charges should of summary in nature. It has also brought to the notice that the applicant was on bail pending the trial and there were no allegations of misuse of liberty extended to him.
11. In view of attending circumstances on record, there are no any exceptional reason to arrive at the conclusion that the applicant is required to be remanded to prison and not to release on bail pending the appeal. The nature of subject matter and gravity of allegations reflects that it would unjust and improper to curtail the valuable liberty of the applicant for the sake of appeal pending before this Court. The impugned observation of the learned trial Court appears to be superficial and perverse in nature. There was no reasonable cause to lodge the applicant in jail for the sake of appeal pending before this Court. There are no exceptional or compelling circumstances on record to detain applicant-accused in prison by curtailing his liberty. In sequel, there is no impediment to allow the application by exercising inherent powers under Section 482 of the Cr.P.C.
12. Accordingly, the impugned order of remanding the applicant-accused to the judicial custody for compliance of provision under section 390 of the Cr.P.C., passed by learned Additional ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:59 ::: 6 PB-1CriA-431-19-I Sessions/Special Judge, Nilanga is hereby quashed and set aside. The applicant-accused be released on bail on furnishing PR bond of Rs. 25,000/- (Rupees Twenty Five Thousand) with one solvent surety of like amount pending Criminal Appeal No. 984 of 2018 before this Court. The applicant to furnish bail before the learned trial Court. After due formalities, the trial Court to forward the report of compliance of provision under section 390 of the Cr.P.C. to this Court at the earliest.
13. The present criminal application stands disposed of in above terms. No order as to costs.
14. Parties to act upon the authenticated copy of this order.
[ K. K. SONAWANE, J. ] MTK ::: Uploaded on - 01/02/2019 ::: Downloaded on - 02/02/2019 00:12:59 :::