Arshad Hussain Shahjad Hussain Shaikh v. The State Of Maharashtra

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION INTERIM APPLICATION NO.3271 OF 2022 IN CRIMINAL APPEAL NO.995 OF 2022 Arshad Hussain Shahjad Hussain Shaikh ..... Applicant

Versus

The State of Maharashtra .... Respondent ----- Mr. Subir Sarkar, Advocate (appointed) for the Applicant. Mr. S.R. Agarkar, APP for the Respondent-State. ----- CORAM : SARANG V. KOTWAL, J.

DATE : 18th OCTOBER, 2022 P.C. :

1.

This is an application for bail pending final hearing and disposal of Criminal Appeal No.995/2022 preferred by the applicant.

2.

Heard Shri Subir Sarkar, learned appointed by PRADIPKUMAR PRAKASHRAO DESHMANE Date:

2022.10.19 18:07:29 +0530 PRADIPKUMAR PRAKASHRAO DESHMANE counsel for the applicant and Shri S.R. Agarkar, learned APP for the State.

3.

The applicant was convicted and sentenced by the Additional Sessions Judge, Greater Mumbai vide his judgment and order dated 3.3.2022 passed in Sessions Case Deshmane(PS)

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No.104/2019. The applicant was convicted for commission of offence punishable under Section 392 of IPC and was sentenced to suffer RI for five years and to pay fine of Rs.100/- and in default to suffer SI for five days. 4.

Learned counsel for the applicant submitted that out of five years, the applicant is already detained for twenty months and, therefore, the appeal is not likely to be decided within the remaining portion of his sentence. He submitted that on merits the prosecution has relied on the evidence of Pws-1, 2 & 3. PW-3 is the victim, whose mobile phone was robbed by the applicant. He submitted that the railway platform was crowded and no independent witness is examined. Therefore, it could be a case of mistaken identity as well.

5.

He submitted that the panchas are not examined and there is nothing to show that the mobile phone recovered from the applicant was in fact that of the victim i.e. PW-3.

6.

Learned APP, on the other hand, opposed this

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application. He submitted that the applicant was caught at the spot and, therefore, on merits the prosecution has a strong case. Besides this, there are more offences registered against him vide C.R. No.736/2018 registered at Mumbai Central Railway Police Station and C.R. No.22/2013 registered at Bandra Railway Police Station. Both the offences are under Section 379 of IPC. He, therefore, opposed grant of bail to the applicant.

7.

I have considered these submissions. At this stage it can be seen that the appeal is admitted and all the questions raised by both sides will have to be decided. Out of the two offences registered against him, one is of the year 2013 which is quite stale. As far as the present case is concerned, the applicant is already in custody for more than twenty months out of the total sentence of five years. The appeal is not likely to be decided within the balance of the sentence which the applicant has to undergo.

8.

In this view of the matter, the applicant can be granted bail on certain conditions. Hence, the following

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order :

:: O R D E R ::

i. During pendency and final disposal of Criminal Appeal No.995/2022, the applicant is directed to be released on bail on his furnishing P.R. bond in the sum of Rs.30,000/- (Rupees Thirty Thousand Only) with one or two sureties in the like amount. ii. The applicant shall attend the concerned police station once a fortnight for a period of one year from today.

iii. Interim Application is disposed of accordingly. (SARANG V. KOTWAL, J.) Deshmane (PS)