APPA-1311-11.sxw v. The State of Maharashtra

Mr. Aniket Vagal, Advocate, for the applicant. Mrs. P.P.Shinde, APP for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 7th October, 2011. P.C.

The applicant, who is original accused No.2, has preferred an appeal against the order of conviction under Section 307 read with Sec. 120B of IPC and under Section 3(i)(ii), under section 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (MCOC Act for short). For the offence under Section 307 of IPC, he was awarded R.I. for seven years with fine of Rs.5,000/-, while under Section 3(2) of the MCOC Act, he was awarded R.I. for five years with fine of Rs.5 lakh and in default to pay fine, to undergo R.I. for one year. The substantive sentence of imprisonment on both counts was to run concurrently. 2 APPA-1311-11.sxw The applicant contends that he has already undergone substantive sentence of imprisonment and at present he is undergoing the sentence in default to pay fine. According to him, the appeal will become infructuous if it is not decided before that sentence is over and, therefore, by filing this application, he seeks bail pending the appeal.

Admittedly, the substantive sentence of imprisonment on both counts is already completed and the applicant is in jail to undergo the sentence of imprisonment in default to pay fine. On the previous date, it was pointed out that under Section 3(i) of the MCOC Act, if such offence has resulted in the death of any person, he shall be punished with death or imprisonment for life and shall also be liable to pay fine, subject to a minimum of Rs.1 lakh and under Sec. 3(ii) in any other case the offence is punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum of Rs.5 lakh. It was pointed out that for the serious offence resulting in death, the minimum fine is Rs. 1 lakh while for the lesser offence minimum fine prescribed by law is Rs.5 lakh. Prima facie, it appears to be inconsistent and when this was brought to the notice of the learned APP, she took time to consult the Government and it is conceded that this inconsistency has crept in at the time of drafting the Act. The learned 3 APPA-1311-11.sxw APP, on instructions from the Home Department, Government of Maharashtra, makes a statement that the Government intends to make suitable amendment in MCOC Act not only in respect of this discrepancy, but also about some other matters but it will take some time. In view of the above circumstances, in my opinion, it is a fit case to grant bail to the applicant pending the appeal.

As both the accused are granted bail, their Appeal Nos. 1167/2011 and 194/2010 be listed before the appropriate Court.

(J.H.BHATIA,J.)