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Judgment
Heard the parties through video conferencing.
It is submitted by the learned Senior Advocate appearing for the appellant-petitioner that this interlocutory application has been filed with a prayer for
releasing the appellant-Smt. Shobha Sinha on bail during the pendency of this appeal. It is next submitted that earlier the appellant-petitioner moved
before this Court in I.A. No.3266 of 2019 inter alia praying for suspension of sentence. The said interlocutory application stood dismissed as not
pressed vide order dated 15.10.2019 and thereafter, the appellant- petitioner filed I.A. No.1218 of 2020 for granting provisional bail for one month for
the reason that the son of the appellant is suffering from liver cirrhosis and required liver transplantation, provisional bail was granted to her vide order
dated 07.02.2020 and the appellant-petitioner was directed to surrender before the learned court below before 12.03.2020. It is then submitted that the
appellant-petitioner preferred I.A. No.2114 of 2020 for extension of provisional bail granted to the appellant-petitioner vide order dated 07.02.2020 and
this interlocutory application was allowed vide order dated 25.02.2020 by the predecessor bench with observation that the provisional bail of the
appellant-petitioner is extended for a period of two months from 12.03.2020 which would expire on 12.05.2020. It is next submitted that instead of
surrendering on 12.05.2020 in the learned trial court, the appellant- petitioner some days after 12.05.2020 filed I.A. No.5074 of 2020 for confirmation
of provisional bail by this Court vide order dated 07.02.2020 and this Court vide a reasoned order dated 12.10.2020 did not extend the period of
provisional bail of the appellant- petitioner which was already expired nor confirmed the same and the appellant-petitioner was directed to surrender
before the learned court below on 22.10.2020 failing which the learned court below was directed to take all coercive steps for apprehension of the
appellant-petitioner to and submit a report by 02.11.2020 as to whether the appellant has surrendered or not.
Being aggrieved and dissatisfied with the said order of this Court dated 12.10.2020, passed in I.A. No.5074 of 2020, the appellant moved before the
Hon'ble Supreme Court of India vide Special Leave Petition (Criminal) Diary No.23039 of 2020 and vide order dated 06.11.2020, the Hon'ble
Supreme Court of India allowed the application for exemption of the appellant-petitioner from surrendering. It is then submitted that Special Leave
Petition (Criminal) Diary No.23039 of 2020 was converted to Special Leave to Appeal (Cr.) No. 5566 of 2020 by the Hon'ble Supreme Court of India
and vide order dated 01.02.2021, the Hon'ble Supreme Court of India has dismissed the said special leave petition and further directed the appellant-
petitioner to surrender forthwith. It is then submitted that the Hon'ble Supreme Court of India left it open to the appellant-petitioner to seek bail before
this Court and observed that if such application is made, the same may be considered by this Court as early as possible, but not later than two weeks
from the date of filing in accordance with law. It is further submitted by learned Senior Advocate appearing for the appellant-petitioner that the
appellant-petitioner has served total sentence of 15 ½ months in custody and is aged about 68 years. It is then submitted that the main accused of
the present case Md. Ilyas Hussain @ Md Illiyas being an Ex-Minister was convicted in the present case and approached the Hon'ble Supreme Court
of India for grant of bail and bail was granted to the said Md. Ilyas Hussain @ Md Illiyas vide order dated 24.11.2020 in Cr. Appeal No.810 of 2020
arising out of Special Leave Petition (Cr.) No.5022 of 2020. It is further submitted that the appellant-petitioner surrendered before the trial court in
connection with R.C. Case No.02 (A)/1997 (R) as per the direction of Hon'ble Supreme Court of India in connection with Special Leave to Appeal
(Cr.) No.5566 of 2020. It is further submitted by the learned Senior Advocate appearing for the appellant-petitioner that there is more chance of the
appellant- petitioner being infected with Covid-19 if she remains in custody and she has never misused the privilege of provisional bail. It is further
submitted by the learned Senior Advocate appearing for the appellant-petitioner that the appellant-petitioner does not want to press the averments
made in paragraph no.12 of this interlocutory application as the same has wrongly been printed. Though it is not a word in this interlocutory application
yet it is then submitted that the learned trial court has not properly appreciated the evidence against the appellant-petitioner and at best, the appellant-
petitioner can be said to have committed misconduct but she has not committed any crime. Hence, it is submitted that the appellant- petitioner be
admitted to bail.
Mr. Rohit Sinha, learned counsel for the C.B.I. on the other hand opposes the prayer for bail and draws attention of this Court to the order no.7 dated
15.10.2019 passed by the predecessor bench, paragraph no.3, 4 and 5 of which reads as under:-
After some argument, counsel appearing on behalf of the appellant submits that he may not press I.A. No. 3266 of 2019 for suspension of
sentence, if the case is fixed for final disposal. He submits that the main point which would be argued by him in the instant case is that file noting on
the basis of which the procurement of bitumen was made was not exhibited in original and in fact the Investigating Officer had produced only the
photocopy of the same which were marked as X- series and the same could not have been taken into consideration for the purposes of conviction of
the present appellant particularly Exhibits X-25 to X-28.
Counsel appearing on behalf of the CBI has no objection if the case is fixed for Final Disposal. However, he submits that the aforesaid aspect of
the matter has been considered by the learned court below while considering the fact that prosecution has taken all steps for the purposes of
procurement of original document or certified copy of the same, but they failed, so the photocopies which were marked 2 for identification as Exhibit
X series were taken into consideration by the learned court below and these are admissible as secondary evidence. He submits that as the entire case
before the learned court below, it was not in dispute that the appellant had initiated the file for procurement of bitumen. He also submits that there was
neither any remaining budgetary allocation nor there was any requirement for procurement of bitumen.
Considering the aforesaid submissions, I.A. No. 3266 of 2019 is dismissed as not pressed at this stage. Counsel for the parties have agreed for final
disposal of the instant case
And submits that the parties have already agreed way back in October, 2019 for final disposal of the instant appeal and the C.B.I. is ready and willing
for final hearing of the appeal on merits on any day suitable to the appellant-petitioner. Hence, the appellant-petitioner ought not be admitted to bail as
there is every chance of the appellant-petitioner absconding as she has not surrendered on the date stipulated by the Court in the extension order of
provisional bail granted to her nor she is getting ready for final hearing of the appeal and only interested to be released on bail on one ground or the
other to avoid serving out the sentence but of course after the order of the Hon'ble Supreme Court of India she has surrendered much after the time
stipulated by this Court in the extension order of the provisional bail granted to her.
Having heard the submissions made at the Bar, it is pertinent to mention here that it is a settled principle of law as has been reiterated by the Hon'ble
Supreme Court of India in the case of Shiv Kumar v. State (NCT of Delhi), reported in (2008) 17 SCC 122, paragraph no.7 of which reads as under :-
This Court has observed in several cases that where the accused is convicted for offence punishable under the Act, it would not be prudent and
desirable to give protection under Section 389 of ""the Code"". However, taking into account the peculiar circumstances of the case we request the
High Court to dispose of the appeal as early as practicable.
that where the accused is convicted for offence punishable under the Prevention of Corruption Act, it would not be prudent and desirable to give
protection to the convict under Section 389 of ""the Code of Criminal Procedure"". It is pertinent to mention here that this Court can hear and dispose of
this appeal on merits on any day which is suitable to the appellant-petitioner. It is pertinent to mention here that this Court has heard and disposed of all
such a appeals under the roster heading P.C.Act cases in which the appellants were ready for final hearing of the appeal and even several appeals
filed in the year 2020 have already been finally disposed of hence this appeal can also be disposed of as and when the appellant gets ready for hearing
of the appeal on merits.
It is also a settled principle of law that for granting of post-conviction bail to a convict under Section 389 of Code of Criminal Procedure, there has to
be strong and compelling reasons for grant of bail and such strong and compelling reason must be recorded in the order granting bail as has been
observed by the Hon'ble Supreme Court of India in the case of Preet Pal Singh v. State of U.P. and Anr. reported in (2020) 8 SCC 645, paragraph
no.35 of which reads as under:-
Xxxxxxxxxxxx However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of
presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial.
Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled
with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and
this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC.""(Emphasis supplied) So far as the
order of granting of bail by the Hon'ble Supreme Court of India to the co-accused- Ex-Minister Md. Ilyas Hussain @ Md Illiyas in Cr. Appeal No.810
of 2020 arising out of Special Leave Petition (Cr.) No.5022 of 2020 is concerned, perusal of the said order reveals that in the said order, it has been
mentioned that an application under Section 389 of Code of Criminal Procedure was filed by the co-convict- Md. Ilyas Hussain @ Md Illiyas and the
prayer in that behalf was rejected by this Court and out of maximum imprisonment of 5 years, the said appellant- petitioner has completed more than 2
years and 5 months of actual imprisonment and on that account, the trial court was directed to release the co-accused- Md. Ilyas Hussain @ Md.
Illiyas subject to the such condition as the trial court may deem fit.
It is pertinent to mention here that the co-convict- Md. Ilyas Hussain @ Md. Illiyas filed I.A. No.4795 of 2020 before this Court in Cr. Appeal (SJ)
No.444 of 2019 with a prayer for releasing him on provisional bail for three months and the said interlocutory application is still pending and has not yet
been disposed of by this Court hence this Court has never rejected any application under Section 389 of Code of Criminal Procedure of the co-
convict- Md. Ilyas Hussain @ Md. Illiyas. Perusal of the order dated 22.09.2020, passed in the said I.A. No.4795 of 2020 reveals that on the day the
learned counsel for the said Md. Ilyas Hussain @ Md. Illiyas prayed for time to advance arguments as to why the principle of law reiterated by the
Hon'ble Supreme Court of India in the case of Shiv Kumar vs. State (NCT of Delhi) reported in (2008) 17 SCC 122 (supra) will not be applicable to
the facts of this case and co- convict-Md. Ilyas Hussain @ Md Illiyas has not even filed any petition for suspension of sentence before this court in his
connected appeal arising out of the same impugned judgment against which this appeal has also been preferred.
Be that as it may, so far as the ground for releasing the appellant-convict on bail because of danger of infection from COVID- 19 is concerned; in
view of the order dated 01.03.2021 passed by the Hon'ble Supreme Court of India in Special Leave to Appeal (C) No(s). 13021/2020 (Arising out of
impugned final judgment and order dated 20-10-2020 in WPC No. 3037/2020 passed by the High Court Of Delhi At New Delhi) NATIONAL
FORUM ON PRISON REFORMS VERSUS GOVERNMENT OF NCT OF DELHI & ORS. Directing the prisoner's who were released from jail
on the ground of COVID-19 to surrender within 15 days in view of the improved situation and in the state of Jharkhand also the prisoners who were
granted provisional bail on the ground of COVID-19 pandemic have already surrendered; this court is of the considered view that the same is not a
strong or compelling reason to admit the appellant-convict-petitioner on bail. Considering the serious nature of offence for which the appellant-
petitioner has been convicted which has already been mentioned in the order number 7 dated 15.10.2019 by the predecessor bench as already
mentioned above in this order and though it is evident from the said order that the appellant-petitioner agreed to be ready for final disposal of the
appeal and other connected appeals can be finally disposed of as and when the appellant-petitioner gets ready for hearing, this Court is of the
considered view that this is not a fit case where the appellant-petitioner be admitted to bail and the sentence of the appellant-petitioner be suspended.
Accordingly, this interlocutory application being without any merit is rejected.