1 cri-appa-104-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 104 OF 2011 IN CRIMINAL APPEAL NO. 417 OF 2010 Rakesh Kantilal Bachchawat and anr. .. Applicants (Org.Accd.Nos.5 and 7) Vs. The State of Maharashtra .. Respondent Mr. Nitin Sejpal with Ms. Pooja Bhojne for applicants. Mrs. A. S. Pai, APP for State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. FEBRUARY 15, 2011. P.C. 1. We have heard Mr. Sejpal the learned counsel for the applicants (original accused nos.5 and 7 respectively) and Mrs. Pai, the learned APP for State. 2. This is an application for being released on bail during the 2 cri-appa-104-11 pendency of Criminal Appeal No. 417 of 2010 by suspending the order of sentence passed in Sessions Case No. 642 of 2007. The applicants along with accused nos. 1 to 4 and 6 have been convicted for the offence punishable under Section 396 read with Section 34 of IPC and each of them has been sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- each, in default 2 years RI. 3. Mr. Sejpal, the learned counsel for the applicants, submitted that the applicants were on bail during the trial, applicant-accused no.5 was similarly placed as accused no.6, who has been released on bail by this court by allowing Criminal Application No. 40 of 2011 filed in her appeal i.e. Criminal Appeal No.415 of 2010 on 24/1/2011. He also submitted that PW 16 – Sandeep Shantilal Jain could not have been relied upon by the trial court as his statement, for the first time, was recorded by the IO on 31/5/2007 when the offence had taken place on 21/3/2007 and the said witness was the employee of the victim – Mahendra Mehta. The applicant no.1 had filed Criminal Application No. 1217 of 2010 for bail and the same came to be disposed as withdrawn on 16/11/2010. It was pointed out by Mr. Sejpal that both the applicants are businessmen with their permanent residence at Mumbai and they are not likely to abscond at any time. 3 cri-appa-104-11 He also submitted that criminal cases pending against them either at Baroda or at Hyderabad, as the case may be, will have no bearing on the consideration of this bail application on merits. As per Mr. Sejpal, the prosecution case against both the applicants is doubtful and in this regard he has referred to the evidence of PW 3 – Rakesh Jain, PW 4 – Mahesh Vyas, PW 6 – Mitesh Shah, PW 7 – Madhu Ahire, PW 21 – G. M. Agrawal, Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai and PW 17 – Ismail Khan, SEO, who had conducted the T. I. Parade on 8/5/2007 at Thane Central Prison. Mr. Sejpal also referred to the memorandum of T.I. Parade at Exh. 88 as well as the statement recorded under Section 164 of Cr. P.C. of applicant no.2 by PW 21 (Exh. 106). The learned counsel also relied upon the recent decision in the case of Dr. Sunil Kumar Sambhudayal Gupta and Ors. vs. State of Maharashtra [2011 ALL MR (Cri) 288 (S.C.)]. 4. Mrs. Pai, the learned APP, on the other hand, urged that the case of both the applicants cannot be said to be on parity with accused no. 6, who is released on bail and there is no prima facie case to point out that the involvement of accused nos.5 and 7 in causing the death of Shri Mahendra Mehta is doubtful. As per Mrs. Pai, there is no circumstance 4 cri-appa-104-11 brought on record by the prosecution which would allow the applicants to be released on bail pending their appeal. 5. We have given our anxious consideration to the rival arguments advanced before us. We have scanned through the depositions of PW 3, PW 4, PW 6, PW 7, PW 17, PW 21 as well as the memoradum of T.I. Parade at Exh. 88 and the confession statement recorded under Section 164 of Cr.P.C. at Exh.106. We have gone through our earlier order dated 24/1/2011 passed in favour of accused no. 6. We do not agree with the submissions of Mr. Sejpal that the case of any of the applicants is in parameteria with the case of accused no.6, who has been released on bail and, therefore, the benefit of parity, as claimed by the applicants, would not be available to them. When the order of sentence is required to be suspended under Section 389 of Cr. P.C., so as to release the accused on bail, the defence must point out that on the face of the record, even for prima facie consideration, the prosecution case was doubtful against the applicants and, in our opinion, in the instant case, there is no ground which would allow us to suspend the order of sentence so as to release any of the applicants on bail. Just because they were on bail during the trial or they are not likely to abscond, if released on bail, could not be termed as 5 cri-appa-104-11 the grounds to support the plea for suspension of the order of sentence under Section 389 of Cr. P.C. The evidence considered by the trial court must make out a prima facie case in favour of the applicants to release them on bail and in the instant case it is not so. 6. Hence, the application is rejected. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)