Holding

The High Court must reconsider the application for suspension of sentence and bail, considering the deposit of the fine, the forfeiture of attached property, and the effect of the earlier conviction, as such orders should not be granted as a matter of routine.

Summary

Vasant Tukaram Pawar was convicted under the Prevention of Corruption Act, 1988 for possessing assets disproportionate to his known income and sentenced to seven years' rigorous imprisonment and a fine of Rs.1,00,000. He appealed to the Bombay High Court seeking suspension of the sentence and release on bail under Section 389 of the CrPC. The High Court rejected the plea, primarily because the fine had not been deposited, and also considered his earlier conviction in Special Case No. 99 of 1996. After the fine was subsequently deposited, Pawar appealed to the Supreme Court. The Supreme Court held that suspension of sentence and bail are not matters of routine and that the appellate court must record reasons in writing, taking into account the deposit of the fine, the forfeiture of attached property, and the effect of the prior conviction. It directed the High Court to reconsider the application, without expressing any view on the merits, and disposed of the appeal.

Issues considered

The applicability of Section 389 CrPC for suspension of sentence and bail when the imposed fine has been deposited after the initial rejection.
Whether a prior conviction in another case should be a decisive factor in denying suspension of sentence and bail.
The distinction between bail and suspension of sentence and the requirement of recorded reasons by the appellate court.
The relevance of forfeiture of attached property in deciding on suspension of sentence and bail.

Legislation cited

Code of Criminal Procedure, 1973s. 389
Indian Penal Code, 1860s. 120, s. 409
Prevention of Corruption Act, 1988s. 13(1)(c), s. 13(1)(d), s. 13(1)(e), s. 13(2)

Subjects

suspension of sentencebailSection 389 CrPCPrevention of Corruption Actdisproportionate assetsforfeiture of propertyprior convictionappellate court reasoning

Judgment

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A VASANT TUKARAM PAWAR
v.
STATE OF MAHARASHTRA

APRIL 15, 2005
B [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

Code ofCriminal Procedure, 1973-Section 389-Suspension ofSentence
and grant of bail-Conviction and sentence by Trial Court under Prevention
C of Corruption Act-Accused also convicted under the Act in another case on
previous occasion-Prayer for suspension ofsentence and grant ofbail rejected
by High Court on the ground that fine imposed was not deposited-Relevance
offorfeiture of attached property and effect and relevance of other case not
considered-Fine deposited subsequent to decision-On appeal, held:
Suspension of sentence and grant of hail should not be granted as a matter
D of routine-In the facts of the present case High Court directed to reconsider
the application considering the effect and relevance of the other case and
relevance of the forfeiture of the property-Prevention of Corruption Act,
1988-Sections JJ(J)(e) and 13(2).

E Bail and Suspension of sentence-Difference between.

Appellant-accused was tried under Section 13(1)(e) r/w Section 13(2)
. ..
of Prevention of Corruption Act, 1988 for being in possession of property
disproportionate to his known source of income. Trial Court convicted him
for the offences and sentenced him accordingly. In appeal to High Court,
F appellant prayed for suspension of sentence and grant of bail. High Court
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rejected the prayer on the ground that the fine imposed had not been deposited
by the appellant

Respondent-State contended that in a previous case (Special Case No.99
G of 1996) appellant had faced trial with two others wherein he was convicted
and sentenced for the offences punishable u/ss. 13(1)(c), 13(1)(d) r/w Section
13(2) of the Act and Section 120 and 409 IPC, hence in this background no
interference was called for.

Appellant contended that the fine had been deposited subsequent to the
H 630
VASA NT TUKARAM PAW AR'' STATE OF MAHARASHTRA [PASAYA T, J.] 63}

decision of the High Court and that his conviction in the other case was not A
one of the factors for rejecting the prayer.

Disposing of the appeal, the Court
I

HELD : 1. There is a distinction between bail and suspension ofsentence.
One of the essential ingredients of Section 389 Cr.P.C., is the requirement of B
the Appellate Court to record reasons in writing for order of suspension of
execution of the sentence or an order of release if the accused is in confinement
The said Court can direct that he be released on bail or on his own bond.
Requirement of recording reasons in writing clearly indicates that there has
to be careful consideration of the relevant aspects and the order directing C
·- suspension of sentence and grant of bail should not be passed as a matter of
routine. (633-E-G)

2. One of the reasons which weighed with the High Court was that fine
imposed had not been deposited. Same has been subsequently deposited.
)
Further, the relevance of the forfeiture of the attached property has not been D
considered. Therefore, the High Court is directed to re-consider the
application. While doing so, the effect and relevance of the order of conviction
and sentence passed in S.C. 99of1996 shall be considered. (633-H; 634-A)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 558 E
of 2005.

From the Judgment and Order dated 15.6.2004 of the Bombay High
Court at Aurangabad in Crl. A. No. 720 of2004 in Crl. A. No. 188 of2004.

Dr. Rajeev, B. Masodkar and Anil K. Jha for the Appellant. F
U.U. Lalit, S.S. Shinde, Mukesh K. Giri and R.K. Adsure with him for
the Respondent.

The Judgment of the Court was delivered by
G
ARIJIT PASAYAT, J. Leave granted.

Refusal by the Bombay High Court, Aurangabad Bench to accept the
prayer of the appellant, for suspension of sentence and to be released on bail
while admitting the appeal filed by him, is questioned in this Appeal.
H
632 SUPREME COURT REPORTS (2005] 3 S.C.R.

A Factual backgound facts in a nutshell are as follows :

The appellant faced trial for alleged commission of offence punishable
under Section 13(1) (e) read with Section 13(2) of the Prevention of Corruption
Act, 1988 (in short the 'Act'). The allegation against the appellant was that
he was in possession of property worth Rs. 4, 12,297 which was
B disproportionate to his known sources of income. Appellant faced trial in the
Court of Special Judge, Dhule in Special Case No. 77 of 1996. After
considering the available materials on recored, the. trial court held that the
accused-appellant was in possession of assests disproportionate to his known
sources of income. The conclusion was arrived at after taking note of the
C pecuniary resources of the accused - appellant. The trial court held that the
extent of the disproportionate assets amounted to Rs. 3,10,784. Accordingly,
he was convicted for offence punishable under Section 13(l)(e) read'with
Section 13(2) of the Act. He was sentenced to undergo rigorous imprisonment
for 7 years and to pay a fine of Rs. 1,00,000 with default stipulation. In
confiscation proceedings certain properties were forfeited to the State
D Government and these properties had been attached during trial. Against the
conviction and sentence apJleals have been filed before the Bombay High
Court. Prayer for bail was made primarily on the ground that the evidence
was not sufficient to show that the alleged assets acquired were beyond the
known sources of income. It was pointed out that the accused was on bail
E during trial and considering his age, (he was nearly 66 years), he ought to be
released on bail. In essence, the prayer was for suspension of the sentence
·and grant of bail. The High Court noted that this was not a fit case where it
would be desirable to release the appellant on bail during pendency of the
appeal and to suspend the order of conviction and sentence as prayed for. It
was noted that the fine imposed had not been deposited. Further, on
F consideration of materials on record the amount of disportionate assets has
been worked out. However, the hearing of the appeal was directed to be
expedited.

In support of the appeal, learned counsel for the appellant submitted
G that the fine of Rs. 1,00,000 imposed by the trial court had not been deposited
at the time the High Court considered the application. But the amount has
been deposited subsequently. This was one of the factors indicated for not
accepting the prayer for bail. The minimum sentence prescribed is one year
and the appellant has suffered custody for nearby IO months. The trial cout
has not considered the relevant aspects .and has erroneously come to the
H conclusin that the appellant was in possession of assets disproportionate to
VASANTTUKARAMPAWARl' STATEOFMAHARASHTRA[PASAYAT, J.) 633

the known sources of income. A
I
In response, learned counsel for the respondent-State submitted that the
evidence has been analysed in great detail by the trial court and considering
the rampant corruption which is prevalent in the society today no leniency
should be shown to the appellant. Additionally it is pointed out that in Special B
Case No. 99 of 1996 the appellant faced trial with two others and has been
convicted for offences punishable under Sections l3(1)(c), 13(1)(d) read with
Section 13(2) of the Act as well as Sections 120 and 409 of the Indian Penal
Code, 1860 (in short the 'IPC'). He was sentenced to undergo rigorous
imprisonment of four years and fine for the offence relatable to Section
120(8) IPC. He was also sentenced to undergo rigorous imprisonment for C
seven years and to pay a fine of Rs. 1,00,000 with default stipulation for the
offence punishable under Section 409 read with s.ection 120 (8) IPC. He was
convicted for the offence punishable under Section 13(1)(c) read with Section
13(2) of the Act read with Section 120(8) and sentenced to undergo
-f imprisonment for two years with fine. Similar was the sentence for the offence D
punishable under Section 13(l)(d) read with Section 13(2) read with Section
120(B) IPC. In this background it was submitted that this is not a case where
any interference is called for.

Learned counsel for the appellant submitted that the conviction in the
other case was not one of the factors considered for rejecting the prayer. E
Section 389 of the Code of Criminal Procedure, 1973 (in short the
'Code') deals with "Suspension of execution of sentence pending the appeal
and release of the appellant on bail". There is a distinction between bail and
suspension of sentence. One of the essential ingredients of Section 389, is the F
(
requirement of the Appellate Court to record reasons in writing for order of
--{ suspension of execution of the sentence or an order of release if the accused
is in confinement. The said court can direct that he be released on bail or oli
his own bond. Requirement of recording reasons in writing clearly indicates
that there has to be carefur consideration of the relevant aspects and the order
directing suspension of sentence and grant of bail should not be passed as a G
matter of routine.

..__ We find that one of the reasons which weighed with the High Court
was that fine imposed has not been deposited. Same has been subsequently
deposited. Further, the relevance of the forfeiture of the attached property has
not been considered. We, therefore, direct the High Court to re-consider the H
634 SUPREME COURT REPORTS (2005] 3 S.C.R.

A application. While doing so, the effect and relevance of the order of conviction
and sentence passed in S.C. 99 of 1996 shall be considered. We make it clear
that we have not expressed any opinion on the merits of the case. The High
Court, in view of its order dated 15.6.2004 may explore the possibility of
disposal of the appeal by the end of 2005.

B The appeal is accordingly disposed of.

K.K.T. Appeal disposed of.

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