Bombay High Court suspends sentence; grants bail to actor Salman Khan

In a huge relief to Bollywood actor Salman Khan, the Bombay High Court on Friday suspended the sentence awarded to him by the Mumbai Sessions Court in the ‘2002 hit-and-run case’ and granted him bail pending disposal of his appeal against the conviction and sentence. By late evening, the actor was released on his executing a cash bail bond of Rs. 30,000 with one surety in like amount.

His release comes two days after the sessions court sentenced him to five-years’ rigorous imprisonment in the ‘2002 hit-and-run case’ under Sections 304 II, 338 and 337 of the IPC and offences punishable under the Motor Vehicles Act. He was granted interim bail immediately thereafter by the Bombay High Court for two days.

Senior Advocate Mr. Amit Desai appearing for the applicant, Salman Khan inter alia, submitted that the offence punishable under section 304 II of the IPC, was not made out against the applicant/appellant. He submitted that the evidence to show that the applicant/appellant was driving the vehicle in question at the material time, as was adduced during the trial, was not satisfactory. He further submitted that there was some evidence to indicate that the accident occurred due to the bursting of tyre, which evidence was not taken into consideration by the learned trial Judge. Mr. Desai also contended that the evidence about Salman Khan being drunk at the material time, was not satisfactory. He also contended that the facts of the prosecution case revealed that, at the material time, there were four persons in the offending vehicle, but the prosecution did not choose to throw light on as to who the fourth person was.

Appearing for the State, the Public Prosecutor did not oppose the admission of the Appeal, but he opposed the application for the suspension of the sentence. He submitted that there was sufficient evidence to indicate that the applicant was driving the vehicle in question at the material time;  that the evidence of bursting of the tyre was of no consequence, as that had happened as a result of the accident itself and that the evidence clearly established that the applicant was drunk at the material time, and further that the applicant did possess a degree of knowledge which would bring the offence committed by him under the penal provisions of section 304 II of the IPC.

The Public Prosecutor also submitted that the theory of there being a fourth person present in the offending vehicle, at the material time, is baseless and introduced as an after­thought. He also contended that there were valid reasons for not examining Kamaal Khan as a witness for the prosecution.

The arguments of the State however did not find favour with Justice Abhay Thipsay.

Admitting the appeal, and suspending Salman Khan’s sentence, Justice Abhay Thipsay said, “It is the normal rule that if the sentence is below seven years, it can be suspended after the appeal is admitted,”

“The sentence has to be suspended. We can’t take pleasure in seeing somebody [incarcerated] till his appeal is decided. Even on the basis that he was driving, it is a case for suspension of sentence. This is not a case where in spite of the admission of the appeal, the appellant [Salman] should be kept in detention till the appeal is decided. It would be proper to suspend the sentence during the pendency of the appeal.”

The High Court observed in its order that Salman Khan was on bail throughout the trial. Even after the addition of the charge of an offence punishable under section 304 II of the IPC, his liberty was not disturbed. “The applicant is not likely to abscond, if released on bail during the pendency of the Appeal – and there is not even a suggestion to that effect,” said Justice Thipsay.

Allowing the application to suspend the sentence, Justice Thipsay said, “ Under these circumstances, even on the basis that there is sufficient evidence to indicate that the applicant was driving the vehicle in question, at the material time, certainly, a number of arguable points have been raised, which need serious consideration. Among other things, whether the offence allegedly committed by the applicant, would amount to an offence punishable under section 304 II of the IPC, – and not merely an offence punishable under section 304 A of the IPC, would also need examination. This would be of quite some importance as the offence punishable under section 304 A of the IPC, is bailable, and invites a lesser punishment. The applicant/appellant could not be dealt with under the provisions of section 389(3) of the Code of Criminal Procedure only because the sentence imposed upon him, is more than a period of three years which was possible only because of the conviction in respect of an offence punishable under section 304 II of the IPC. “

Justice Thipsay said that when an appeal had been admitted it would be unreasonable to suggest that the appellant-convict must be detained in custody in execution of the sentence till the appeal is heard. “When a statutory right to Appeal is conferred upon a convict, and when an Appeal is admitted, indicating that the correctness, legality and propriety of the judgment of the trial court would be examined by the Appellate Court, it would be rather unreasonable to suggest that even where arguable points needing consideration have been raised, the appellant must be detained in custody in execution of the sentence till the Appeal is heard.”

Holding that this was not a fit case for detaining the applicant till the disposal of the appeal, the Bombay High Court said, “This is not a case where in spite of the admission of the Appeal, the appellant should be kept in detention till the Appeal is decided. It would be proper to suspend the sentence during the pendency of the Appeal.”

In addition to the bail bond, the Bombay High Court directed Salman Khan to furnish a personal surety within two weeks

As per the High Court’s directions, Mr. Khan surrendered before the sessions court in the afternoon and executed necessary bail bonds in accordance with the High Court’s order.

Taking in to account the opposition of the State of Maharashtra to the suspension of sentence, Justice Thipsay said the appeal would be heard expeditiously, and directed the appeal to be listed on June 15, 2015 for directions. He said, “Normally, in such cases, the State does not oppose the suspension of sentence during the pendency of the Appeal in case of an accused who is on bail during the trial. However, in view of the fact that in this case, some opposition has been offered, I have considered the possibility of directing the Appeal to be expeditiously heard. Neither the learned Public Prosecutor, nor the learned counsel for the appellant has any objection to stipulate that the Appeal shall be heard and decided expeditiously.”

Justice Thipsay said the appeal would be heard in July 2015.

 

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Read the Judgment here.