APPA.948-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 948 OF 2010 IN CRIMINAL APPEAL No. 530 OF 2010 Sheshnath Ramanand Upadhyay & Anr. ...Applicants Vs. The State of Maharashtra ...Respondent *** Mr. D. G. Khamkar, for the Applicants. Mrs. V. R. Bhonsale, APP for the Respondent. *** CORAM: V. M. KANADE J. DATE : SEPTEMBER 9, 2010 P.C. 1. Heard the learned counsel for the applicants and the learned APP appearing for respondent No.1. The applicants have been convicted by the trial Court for the offence punishable under S. 452 read with S. 34 of I.P. Code and sentenced to suffer R.I. for 2 years each and to pay fine of Rs.500/- each, in default to undergo R.I. for 1 month. They are also convicted for the offences punishable under S. 395 read with S. 397 of APPA.948-10 - 2 - the I.P. Code and sentenced to suffer R.I. for 2 years each and to pay fine of Rs.500/- each, in default to undergo further R.I. for 1 month. 2. It is submitted on behalf of the applicants that both the applicants are in jail since one year ten months and therefore, practically they have undergone half of the sentence awarded by the Sessions Court. It is submitted that the accused were shown to the witnesses before the test of identification parade began and therefore, no reliance should be placed on the said identification parade. Secondly, it is submitted that Executive Magistrate who conducted the said parade was not examined since he had died during pendency of the trial. Thirdly, it was submitted that there were several discrepancies in respect of recovery of the articles from the accused. 3. The learned counsel for the applicants has placed reliance on the judgment of Apex Court in the case of – Bhagwan Vs. State of Gujrat [1999 Cri. L.J. 2658] wherein it has been held that if sentence is for a fixed period and the Court is unable to hear the appeal, accused should be released on bail. 4. The learned APP has filed an affidavit-in-reply in which it is pointed out that the applicants are habitual offenders and there are other cases pending against them. APPA.948-10 - 3 - 5. After having heard both the counsel, in my view, this is not a fit case for grant of bail. Prosecution case is that the applicants had entered into the jewelery shop and had threatened the owner of the shop with revolver and had taken away jewelery/ornaments, worth Rs.90,00,000/- from the said shop. Subsequently, they were arrested and the jewelery articles were recovered at their instance, which was subsequently identified by the complainant. The submission made on behalf of the applicants is that the applicants were shown to the witnesses before the test identification parade and therefore the said evidence should be discarded. In my view, this aspect cannot be decided at this stage. In any event, the applicants were identified by the witnesses in the trial Court. 6. So far as the discrepancy shown in the recovery panchanama is concerned, in my view, that cannot be a ground for granting the bail to the applicant/accused, particularly, taking into consideration the fact that the applicants are hardened criminals, who are involved in the similar offences in the past. There is every possibility that the applicants will continue to commit similar offences, if they are released on bail. There cannot be any dispute about the proposition laid down in the case, on which reliance is placed by the learned counsel for APPA.948-10 - 4 - the applicants. However, while considering the application for grant of bail, several factors are required to be considered, particularly the gravity of the offence and the past history of the accused. The application for bail is therefore, rejected. 7. Hearing of the appeal is expedited. The appeal be listed for final hearing on 4th October, 2010. [ V. M. KANADE J.]