1 A-1108-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO. 1108 OF 2010 IN CRIMINAL APPEAL NO. 762 OF 2007 Sachin Gajanan Shetye ..Applicant /Appellant versus The State of Maharashtra ..Respondents Mr. Nitin Sejpal and Mrs. Pooja Bhojne for Applicant / Appellant. Mr. Y. S. Shinde – Additional Public Prosecutor for State – Respondents. CORAM : D. D. SINHA AND A. P. BHANGALE, JJ. DATED : SEPTEMBER 28, 2010. ORAL ORDER : 1. Heard the learned counsel for the applicant / appellant and the learned Additional Public Prosecutor for the State / respondents. 2. Criminal application No. 1108 of 2010 is moved by the applicant for grant of bail. The learned counsel for the applicant has submitted that the earlier application for grant of bail filed by the applicant was rejected by this Court vide Order dated 5th June 2008, which reads thus: 2 A-1108-10 “Counsel contends that the Applicant has been convicted solely based on making out ingredients of Section 34 of the Indian Penal Code. 2. We have considered the judgment of the learned trial Court. P.W. 1 has deposed that the accused was at the site of the offence with the knife and was shouting along with the other accused to kill the deceased. The C.A. Report shows that the knife which was attached from the Applicant was stained with human blood so also human blood was found on his belt. Considering the above, in our opinion no case made out to grant bail. Hence application for bail rejected.” 3. The learned counsel for the applicant has submitted that even though the earlier application for grant of bail has been rejected by this Court on merits, still in view of the decision of the Apex Court in the case of Kashmira Singh vs. The State of Punjab [(1977)4 SCC 291], as well as the Order dated 17 th September, 2010 passed by this Court in Criminal Application No. 1069 of 2010 in Criminal Appeal No. 75 of 2006 Prakash Perumal Shetty vs. The State of Maharashtra, the applicant may be released on bail. The learned counsel for the applicant has submitted that in the present case also the applicant was convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer R.I. for life. It is submitted that the applicant is in jail since 22nd October 2000 and therefore in view of the above referred 3 A-1108-10 decisions, the applicant may be released on bail. 4. The learned Additional Public Prosecutor on the other hand has submitted that in the instant case the earlier application for bail filed by the applicant was rejected on merits by this Court vide Order dated 5th June 2008. It is therefore contended that the present second application for grant of bail on merits is not maintainable for want of change in circumstances. It is contended that this Court is taking up the criminal appeals of 2005 for final hearing and therefore the criminal appeal filed by the applicant which is of the year 2007 is likely to be taken up for final hearing within a short while from now. 5. We have considered the contentions canvassed by the learned counsel for the applicant / appellant and the Additional Public Prosecutor for respondents. At the outset, we must express that proposition propounded by the Apex Court in case of Kashmira Singh (cited supra) can be seen from the relevant observations made by the Apex Court in paragraph 2, which reads thus:- “....It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable 4 A-1108-10 period time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.” 6. However, in view of the judgment of the Apex Court of the three Judges Bench in case of Sunil Kumar Sinha vs. State of Bihar & Anr. [(2010)3 SCC (Cri) 299], merely because the High Court is unable to hear the case in the near future ipso facto cannot be the ground to release the accused on bail and it is open to the High Court to say which facts were such that merited accused to get bail. The Order of the Apex Court in case of Sunil Kumar Sinha, reads thus: “ORDER “1. Leave granted. Heard learned counsel for the parties. 2. In the instant case, during the trial for an offence alleged to have been committed under Section 302 IPC, Dinesh Singh, the respondent, was on bail. He was convicted by the Sessions Judge by order dated 1-10-1999 and thereafter, he was in custody. His application for bail was rejected by the High Court thrice, but, on further application being filed, the High Court directed that he should be released on bail, inter alia on the ground that there was no chance of the appeal being 5 A-1108-10 taken in the near future. 3. With respect we deem it to be a highly improper approach to the point in issue. After a full-fledged trial, Dinesh Singh was convicted and sentenced under Section 302 IPC to undergo life imprisonment. It is open to the High Court to say which facts were such that merited Dinesh Singh getting bail. But, merely because the High Court is unable to hear the case in the near future would be no ground, by itself, for releasing the accused who has not even been in custody for three years. 4. While allowing this appeal and setting aside the impugned order, we would like to impress upon the High Court to take up those appeals which are pending under Section 302 IPC, especially those where the accused are not on bail, on priority basis and dispose of them as expeditiously as possible. It will be open to the accused in this case to apply to the High Court for bail on merit at a later date, which it goes without saying shall be considered in accordance with law. 5. The appeal is allowed”. 7. So far as Order dated 17th September, 2010 passed by the Division Bench of this Court in the case of Prakash Perumal Shetty (cited supra) is concerned, the Division Bench of this Court released the accused in the said case on bail in view of the law declared by the Apex Court in Kashmira Singh’s case on the ground that it was unlikely that the criminal appeal would be heard in near future. It is therefore evident that the Division Bench 6 A-1108-10 of this Court released the accused on bail only on the ground that there was no possibility of criminal appeal filed by the accused would be heard in near future, without giving any other reasons for releasing the accused on bail. However, in view of the decision of the Larger Bench of the Apex Court in case of Sunil Kumar Sinha (cited supra), unable to hear the criminal appeal in near future by itself cannot be the sole ground to release the accused on bail and in case the Court grants bail it is necessary to consider the application for bail on its own merit and is also equally necessary for the Court to give reasons therefor. 8. In the instant case this Court rejected the earlier bail application of the applicant vide Order dated 5th June 2008 on the specific ground that the evidence adduced by the prosecution witness P.W. 1 demonstrates that the applicant / accused at the time of offence was armed with the knife and was shouting along with others to kill the deceased. Similarly, the C.A. Report shows that the knife which was seized from the applicant was stained with human blood, it is in these circumstances, the earlier application for bail moved by the applicant came to be rejected on merits. The applicant has been convicted and sentenced under Section 302 of the Indian Penal to undergo life imprisonment. This Court while rejecting the earlier bail application considered the evidence on record and prima facie found that the 7 A-1108-10 applicant was not entitled to be released on bail and therefore rejected the bail application on merits vide Order dated 5th June 2008. 9. However considering the law declared by the Apex Court in the case of Sunil Kumar Sinha, it will be appropriate to grant liberty to the applicant to revive his request for consideration of grant of bail if the criminal appeal is not heard finally within the reasonable period, which will be considered on its own merits. 10. The Criminal Application No. 1108 of 2010 is disposed of. However, if the Criminal Appeal No. 762 of 2007 is not heard finally within the reasonable time, the applicant shall be entitled to revive his request for grant of bail. (D. D. SINHA, J.) (A. P. BHANGALE, J.)