IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.749 OF 2008 IN CRIMINAL APPEAL NO.668 OF 2007. Mohd. Ayub Allimuddin Shaikh. ..Applicant. versus The State of Maharashtra. ..Respondent. .... Mr. Nitin Pradhan, i/b. Ms.Shubhada Khot & Sooraj Hulke, for the Applicant. Mrs.P.P.Shinde, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 23rd September 2008. : 23rd September 2008. : 23rd September 2008. P.C.: 1. The submissions of the learned counsel appearing for the parties were heard on the last date. The applicant is the original accused no.1 who has been convicted for offences punishable under section 399 and 402 of the Indian Penal Code as well as sections 3 and 4 read with section 25 of the Arms Act. The maximum substantive sentence awarded is of 10 years. In default of payment of fine, sentences have been awarded for imprisonment for one month. 2. Appeal has been admitted by this Court. : 2 : Criminal Application No.958/2007 was filed by the applicant for grant of bail. By order dated 24th April 2008, the said application was disposed of by passing following order :- "1. The learned advocate for the applicant seeks permission to withdraw the application with liberty to prefer a fresh application if the appeal is not heard finally by 28.6.2008. Permission is granted with liberty. 2. Application is disposed of." 3. In terms of liberty granted by this Court, a fresh application for bail has been filed. It is not in dispute that in connection with the offence for which he has been convicted, the applicant was arrested on 16th February 2001 and was enlarged on bail on 21st May 2001. On 25th September 2000, the applicant was arrested in connection with the offence registered against him at Panvel police station. He continued to be in custody in connection with the said offence till 22nd July 2005 when he was acquitted. While he was in the custody in : 3 : connection with the offence registered at Panvel police station, an order of detention dated 8th June 2001 passed under the provisions of the Maharasthra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1971 was served to the applicant on 7th March 2003. The said order was set aside by a Division Bench of this Court by order dated 6th January 2004. After acquittal of the applicant in the aforesaid case registered at Panvel police station, he continued to be in the custody in connection with an offence registered at Tardeo police station. He was enlarged on bail by order dated 6th March 2006. He was again arrested on 19th April 2006 in connection with an offence (C.R.No.33 of 2006) registered with DCB, CID, Mumbai. The applicant was acquitted on 14th November 2006 in the said case. Thereafter, the applicant continues to be in custody on the basis of the impugned judgment and order. 4. The submission of the learned counsel appearing for the applicant is based on a decision of the Apex Court in the case of the State of Maharashtra v/s Najakat Muna alias Mubarak Ali [ 2001 Cri.L.J. 2588]. : 4 : He submitted that by the decision, the Apex Court held that the words "of the same case" in section 428 of the Code of Criminal Procedure, 1973 are not to be understood as suggesting that the set off is allowable only if earlier jail life was undergone by an accused exclusively for the case in which the sentence is imposed. He, therefore, submitted that the applicant will be entitled to set off in the present case of the periods (i) between 16th February 2001 to 21st May 2007, (ii) between 25th September 2002 to 7th March 2006 and from 19th April 2006 till today. The learned APP opposed the submissions by relying upon the decision of the Division Bench of this Court in the case of Namdeo @ Ram Krushna Khot v/s. State of Maharashtra [2006 (6) Mh.L.J. 783]. She submitted that the applicant will not be entitled to set off as claimed by him in this application. She submitted that in any case, the issue of entitlement to set off cannot be decided at this stage. 5. I have considered the submissions. This application has been filed on the basis of the liberty granted by this Court to file a fresh application after : 5 : 28th June 2008. The appeal has been admitted. During the pendency of the trial, the applicant was enlarged on bail. From 20th June 2007, i.e. from the date of the impugned Judgment and Order, the applicant is in jail. There is nothing on record to show that the applicant had misused the liberty granted to him during the trial. Reliance has been placed on the decision of the Apex Court in the case of Bhagwan Rama Shinde Gosai and others v/s State of Gujarat [ (1999) 4 SCC 421]. In paragraph 3 of the said decision of the Apex Court has held as under :- "3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any : 6 : reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concerned in the matter of suspending the sentence. So as to make the appeal right, meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted." 6. Considering the pendency of very old appeals in this Court, as of today, it is obvious that appeal of the year 2007 is not likely to be decided finally in the near future. In absence of any material on record making out a case of exceptional circumstances, as held in the case of Bhagwan Rama Shinde (supra), the case of the applicant will have to be considered on merits for grant of bail. Issue of set off cannot be decided at : 7 : this stage. Considering the peculiar facts of the case, bail will have to be granted. Apart from the conditions which are already imposed in the order granting bail during the pendency of the trial, further condition can be imposed on the applicant. 7. Hence, I pass the following order :- (1) The applicant shall be enlarged on the same bail on which he has enlarged during the trial, subject to filing fresh bail bonds within a period of two weeks from today. (2) The bail is granted subject to condition that the applicant will report to the concerned police station on every second and fourth Monday of every calender month between 11.00 a.m. to 1.00 p.m. (3) The application is disposed of accordingly. (A.S.Oka,J)