Bombay High Court
Umesh Dnyanoba Ban vs The State Of Maharashtra on 3 September, 2021
Bench: Prakash Deu Naik
Ethape 1 1-Appa-1602-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1602 OF 2018
WITH
INTERIM APPLICATION NO. 2069 OF 2021
WITH
INTERIM APPLICATION NO. 606 OF 2019
IN
CRIMINAL APPEAL NO.161 OF 2018
Umesh Dyanoba Ban .. Applicant
(Orig. accused No.4)
Vs.
The State Of Maharashtra .. Respondent
...
Mr.Mateen A. R. Shaikh, Advocate for Applicant/Appellant.
Mr. Y.Y. Dabake, A.P.P. for the State-Respondent.
...
CORAM : PRAKASH D. NAIK, J.
DATE : 3rd SEPTEMBER, 2021
Digitally signed
by
DNYANESHWAR
DNYANESHWAR ASHOK ETHAPE
ASHOK ETHAPE
PC.
Date:
2021.09.06
10:33:56 +0530
1. The applicant is convicted vide judgment and order dated
06.05.2017 passed by Learned Special Judge, Pune under
Maharashtra Control of Organized Crimes Act, 1999 (for short
"MCOC Act") in MCOC Case No.5 of 2008. He is convicted for
the offence punishable under Section 395 of Indian Penal Code
(for short "IPC") and sentenced to suffer imprisonment of 10
years and pay fine of Rs.5,000/-. He is further convicted for
Ethape 2 1-Appa-1602-2018
the offence under Section 3(1)(ii), 3(2) and 3(4) of the MCOC
Act and sentenced to suffer imprisonment for 10 years on each
count and pay fine of Rs.5 lakhs on each count.
2. The applicant had challenged the impugned judgment
and order of conviction by preferring Criminal Appeal No.161
of 2018 which has been admitted and pending for final
disposal.
3. The applicant was arrayed as accused No.4. The case of
the prosecution in short is that the accused were involved in
committing dacoity in the house of the complainant. Pursuant
to the information given by complainant, First Information
Report (for short "FIR") was registered and investigation
proceeded. The applicant was arrested on 10.04.2008.
Provisions of MCOC Act were invoked.
4. The contention of the applicant is that during the
pendency of trial he was in custody from 10.04.2008 to
14.01.2011. Subsequently he was granted bail and on the date
of judgment of conviction he has been taken into custody.
Ethape 3 1-Appa-1602-2018
Thus, from 06.05.2017 till date the applicant is in custody. It
is submitted that the applicant has undergone sentence of
almost 7 years. The applicant has good case on merits. The
incident had occurred at 03:45 a.m. The identity of the
applicant as one of the accused is doubtful as the complainant
had no occasion to see the accused to enable him to identify
subsequently in identification parade. It is further submitted
that the provisions of MCOC Act are erroneously applied
against the accused. The applicant was implicated in one case
alongwith the gang leader. However, subsequently report
under Section 169 of Cr.P.C. was filed in favour of the
applicant. The applicant hails from poor family. He has no
money to pay fine. In the event the sentence of imprisonment
is not suspended, appeal would become infructuous. It is
further submitted that sentence of fine amount ordered by trial
Court for conviction for offences under MCOC Act may be
suspended. The total fine amount for conviction under Section
3(1)(ii), 3(2) and 3(4) of MCOC Act is Rs.15 lakhs. In support
of his submission, learned counsel for the applicant had relied
Ethape 4 1-Appa-1602-2018
upon the decision of the Division Bench of this Court delivered
in Criminal Application No.520 of 2018 in Criminal Appeal
No.367 of 2018 and other connected matters on 20.02.2019. It
is submitted that in the said case the appellants/accused
therein were convicted for the offence under MCOC Act and
they ordered to pay fine of Rs.5 lakhs. They had undergone
sentence of 6 years and 4 months. Hence, it was contended
that the fine imposed upon the appellant therein may be
relaxed. It is submitted that the sentence was suspended. He
also relied upon the order passed by Learned Single Judge of
this Court in Interim Application No.1010 of 2021 in Criminal
Appeal No. 268 of 2021 dated 24.03.2021 and submitted that
similar view was taken by this Court. He also placed for
consideration another order of learned Single Judge of this
Court dated 30.04.2019 delivered in Criminal Application No.
548 of 2019 in Criminal Appeal No.646 of 2019 whereby the
sentence of fine was suspended.
5. Learned APP submitted that the applicant has been
convicted under the provisions of MCOC Act. The trial Court
Ethape 5 1-Appa-1602-2018
has analyzed the evidence and came to the conclusion that the
offences are proved against the applicant. The sentence of
imprisonment may not be suspended and that the relaxation
of payment of fine as prayed by the applicant may not be
granted.
6. It is pertinent to note that the applicant has been
convicted for the offence punishable under Section 395 of IPC
and sentenced to suffer imprisonment of 10 years. The
applicant has undergone sentence of about 7 years. He was
also convicted for the offence under the MCOC Act and
sentenced to suffer imprisonment for 10 years each on three
counts and directed to pay fine of Rs.5 lakhs for each offence.
The total fine imposed upon the applicant for conviction under
MCOC Act is to the tune of Rs.15 lakhs. All the sentences of
imprisonment are directed to run concurrently. The appeal
has been admitted by this Court. The said appeal may not
come for hearing soon considering the pendency of previous
appeals. The applicant was on bail during the trial. The total
period of actual sentence undergone by the applicant is upto 7
Ethape 6 1-Appa-1602-2018
years. The applicant had urged several grounds assailing the
judgment of conviction. Thus, it is indeed that out of 10 years
of imprisonment, the applicant has suffered actual sentence of
about 7 years. The minimum sentences of imprisonment
provided by law for all the aforesaid offences under MCOC Act
is five years. In these circumstances, the case for suspension
of sentence of imprisonment is made out. The second
contention of the applicant is that in the event fine is not
relaxed, the applicant would continue to be in custody. The
period of custody suffered by the applicant be taken into
consideration. He hails from poor family and he has no money
to deposit the fine. The Division Bench of this Court in the
decision referred to hereinabove had dealt with similar issue.
The appellants therein were convicted for the offence under
Sections 395 and 392 of IPC and for the offence under Section
3 (1) (ii) 3(2) and 3(4) of MCOC Act. They were directed to pay
fine of Rs.5 lakhs each, and in default, of payment of fine
further sentence of imprisonment was imposed. They have
undergone sentence for a period of 6 years and 4 months.
Ethape 7 1-Appa-1602-2018
They had not paid the fine amount. The Court had observed
that the considering the pendency of old appeals and
especially the number of appeals of the accused in jail who
have already undergone sentence for more than 10 years,
appeals are not likely to be listed for final hearing in the near
future. The substantive sentence imposed upon them was
suspended till the final disposal of the appeals and they were
enlarged on bail. Learned Single Judge in the order dated
30.04.2019 (supra) has relied upon the aforesaid decision of
the Division Bench of this Court and relaxed the payment of
fine. The appellant therein was also convicted under the
provisions of MCOC Act and sentenced to suffer imprisonment
as well as to pay fine of Rs. 5 lakhs on each count and in
default to suffer further rigorous imprisonment for 1 year. The
applicant/appellant therein had undergone sentence of about
6 years and four months. Considering the decision of the
Division Bench, the appellant therein was enlarged on bail and
sentence was suspended pending appeal. In the order dated
24.03.2021 passed by Learned Single Judge of this Court,
Ethape 8 1-Appa-1602-2018
which has been referred hereinabove, similar view was
adopted. The accused therein were convicted under the MCOC
Act and sentenced to suffer imprisonment of 8 years and to
pay fine of Rs.5 lakhs. Out of 8 years, the applicants therein
had undergone imprisonment of 6 years and 9 months.
Reference was made to the decision of Apex Court in the case
of Kiran Kumar Vs. State of M.P. (2001) 9 SCC 211.
7. In the present case, as noted hereinabove, the applicant
has undergone the imprisonment of about 7 years. The
maximum sentence of imprisonment is 10 years. Appeal
challenging the judgment and order of conviction is pending
for consideration. In the circumstances, I pass the following
order.
ORDER
(i) Criminal Application No.1602 of 2018 and
Interim Application No. 2069 of 2021 are allowed;
(ii) The sentence of imprisonment awarded vide
judgment and order dated 06.05.2017 passed by
Special Judge, Pune under the MCOC Act in
MCOC case No.5 of 2008 is suspended and the
Ethape 9 1-Appa-1602-2018
applicant is directed to be released on bail on
executing P.R. bond in the sum of Rs. 25,000/-
with one or more sureties in the like amount;
(iii) The sentence of payment of fine of Rs.5 lakhs on
each conviction under Section 3(1)(ii), 3(2) and
3(4) of MCOC Act is relaxed and the applicant is
directed to deposit fine of Rs.50,000/- on each
count within a period of 8 weeks from the date of
his release.
(iv) It is clarified that the relaxation for payment of
fine is granted pending appeal and it is subject to
the decision in the appeal challenging order of
conviction.
(v) The applicant shall pay fine of Rs.5,000/- for
conviction under section 395 of IPC immediately
before his release on bail.
(vi) Criminal Application No.1602 of 2018, Interim
Application No.2069 of 2021 and Interim
Application No. 606 of 2019 are disposed of.
(PRAKASH D. NAIK, J.)
