1 (Cr.appln366/10) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 366 OF 2010 IN CRIMINAL APPEAL NO.737 OF 2009 Shri Sayeed Rashid Shaikh @ Saidu Bangali ..... Applicant. v/s State of Maharashtra ...... Respondent. Mr. Arjun Kode with Mr. Mangesh Deshmukh for the applicant. Mr. J.P. Kharge, APP for the State. CORAM: V. M. KANADE, J. DATE : 3rd August, 2010 P.C.:- 1. Heard the learned Counsel for the applicant and the learned APP for the State. 2. Applicant has been convicted for the offence punishable under sections 392 read with section 397 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs 400 and, in default of payment of fine, to suffer rigorous imprisonment for three months. He is also convicted for the offence punishable under section 353 read with section 34 of the Indian Penal 2 (Cr.appln366/10) Code and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs 350 and, in default of payment of fine, to suffer rigorous imprisonment for two months. He is also convicted for an offence punishable under section 307 read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs 300/- and, in default of payment of fine, to suffer rigorous imprisonment for two months. All the sentences are directed to run concurrently. 3. Prosecution case is that the applicant, alongwith one other accused, put a knife on the neck of the complainant and took away his gold chain and mobile phone and while they were trying to run away, police apprehended them on the spot and the ornaments and other articles were recovered from them by the police on the spot. 4. The learned Counsel appearing on behalf of the applicant submitted that, firstly since only one accused was carrying the weapon, provisions of section 392 read with section 397 were not attracted. Secondly, it is submitted that no offence punishable under section 307 of the IPC was made out since no injury was caused to any of the victims. Thirdly, it is submitted that no test identification parade was held and, therefore, no reliance could be placed on the testimony of the complainant. It is also submitted that the case of the prosecution that the applicant and other accused were caught red handed is false and incorrect. He 3 (Cr.appln366/10) invited my attention to the cross-examination of the complainant and other witnesses in support of the said submission. It is further urged that the knife which was found with the applicant was a kitchen knife and, therefore, was not a lethal weapon. He relied upon the judgment of the Delhi Court in Manoj Kumar v. State1 in support of the said submission. 5. The learned APP appearing on behalf of the State, on the other hand, submitted that the applicant was caught red handed and recovery was made from him after he was caught and that these articles were identified by the complainant. He submitted that five cases are pending against the applicant and which are of similar nature. It is, therefore, submitted that the applicant is not entitled to be released on bail. 6. On the other hand, the learned Counsel for the applicant submitted that merely because cases are pending against the accused that would not be a ground to reject the application for bail. He relied upon the judgment of learned Single Judge of this Court in Ibrahim alias Munna Salim Shaikh v. State of Maharashtra2. 7. After having heard the learned Counsel appearing on behalf of the applicant and the learned APP appearing on behalf of the State at length and having perused the 1 114(2004) Delhi Law Times 511 2 1996 CRI.L.J. 1419 4 (Cr.appln366/10) impugned judgment and order and also the statement of witnesses to which my attention was invited by the learned Counsel for the applicant, I am of the view that this is not a fit case for grant of bail. The fact remains that the applicant was immediately apprehended after the robbery and the applicant is the person who was wielding the knife. It is a well settled position in law that if a weapon is used at the time of committing robbery, the provisions of section 392 read with section 397 are attracted. Therefore, at this stage, the submissions made by the learned Counsel for the applicant regarding applicability of the said provisions cannot be taken into consideration. Taking into consideration the criminal antecedents of the applicant, in my view, this is not a fit case for grant of bail. 8. Application for bail is therefore dismissed. Appeal, however, is expedited. If appeal is not heard within a reasonable period of time, applicant may apply for bail again. 9. Application is disposed of. (V.M. KANADE, J.) 5 (Cr.appln366/10)