Mohd. Bilal Mohd. Mahabul Alam ... vs The State Of Maharashtra
2021 Latest Caselaw 16273 Bom

Citation : 2021 Latest Caselaw 16273 Bom
Judgement Date : 24 November, 2021

Bombay High Court

Mohd. Bilal Mohd. Mahabul Alam ... vs The State Of Maharashtra on 24 November, 2021

Bench: Anuja Prabhudessai

                     Megha                            24_IA_972_2020 in apeal_670_2021.doc

                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION
        Digitally
                                   INTERIM APPLICATION NO.972 OF 2020
MEGHA
        signed by
        MEGHA S                                    IN
        PARAB
S
PARAB
        Date:
        2021.11.26
                                     CRIMINAL APPEAL NO.670 OF 2021
        17:05:24
        +0530                                    WITH
                                     CRIMINAL APPEAL NO.670 OF 2021

                     Mohd. Bilal Mohd. Mahabul Alam Shaikh             ...Applicant
                                      Versus
                     The State of Maharashtra                         ...Respondent
                                                      ....
                     Mr. Veerdhawal Kakade for the Applicant.
                     Mr. S.V. Gavand, APP for Respondent-State.

                                                CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 24th NOVEMBER, 2021.

P.C.:-

This is an application under Section 389 of the Code of

Criminal Procedure, 1973 for suspension of substantive sentence

imposed on the Applicant-accused No.4 vide judgment dated

26/12/2018 passed by the learned Additional Sessions Judge, Thane, in

Session Case No.293 of 2018 and to release the Applicant on bail. By

the impugned judgment, the learned Judge held the Applicant-accused

No.5 guilty of ofences punishable under Sections 14(A)(a)(b) of

Foreigners Act and 3 and 6 of Passport Act and sentenced him to

undergo imprisonment for four years with fne of Rs.5,000/- i/d. to

sufer simple imprisonment for six months.

2. Learned counsel for the Applicant has placed on record copy

Megha 24_IA_972_2020 in apeal_670_2021.doc

of the order dated 11/06/2019 in Criminal Appeal No.608 of 2019

whereby this Court (Coram: Smt. Sadhana S. Jadhav, J.) suspended

substantive sentence imposed on the co-accused (accused No.4) who

has also been held guilty by the same judgment for the same ofence.

3. In Kiran Kumar vs. State of M.P. (2001) 9 SCC 211 the

Appellant was convicted for ofence under Section 460, 376, 325 and

506 of the IPC and max imum sentence imposed on him was

imprisonment for a period of 7 years. His application for suspension of

sentence was rejected by the High Court. While setting aside the said

order, the Apex Court referred to the decision in Bhagwan Rama

Shinde Gosai vs. State of Gujrat (1999) 4 SCC 421 and held that when

the person is convicted and sentenced to a short term imprisonment,

the normal rule is that when the appeal is pending the sentence should

be suspended and rejection is only by way of ex ception. It is further

observed that if the short term is alleged to run out during the

pendency of appeal, the appeal itself will become for all practicable

purposes infructuous.

4. In view of the said judgment and considering the fact that

the Applicant has been sentenced imprisonment for 4 years which is a

short term imprisonment and that he is in jail since 23/03/2018, this is a

ft case for suspension of sentence imposed on the Applicant pending

Megha 24_IA_972_2020 in apeal_670_2021.doc

disposal of the appeal on merits. Moreover, the sentence imposed on

the co-accused by the same judgment has been suspended by order

dated 11/06/2019 in Criminal Appeal No.608 of 2019 passed by this

Court (Coram: Smt. Sadhana S. Jadhav, J.). It is however seen that

though this Court has suspended the sentence under Section 389 of the

Cr.P.C, clause (i) of the operative part of the order states that the

appeal has been allowed. This appears to be a typographical error.

Learned APP to verify and to take steps to correct the typographical

error, if any. Since the Criminal Appeal No.608 of 2019 arises from the

same judgment, the same be tagged along with this appeal and listed

on 06/12/2021.

5. Under the circumstances, the application is allowed on the

following terms and conditions:-

(i) Substantive sentence imposed against the Applicant vide

judgment dated 26/12/2018 in Sessions Case No.293 of

2018 is suspended pending disposal of the appeal;