Showing posts with label Justice Abhay Thipsay. Show all posts
Showing posts with label Justice Abhay Thipsay. Show all posts
Bombay High Court suspends Salman Khan's sentence; grants bail
9:32 AM
HC Asks Why Kamaal Khan Wasn't Examined As Witness
Swati Deshpande & Rebecca Samervel (THE TIMES OF INDIA; May 9, 2015)
Two days after his
conviction, actor Salman Khan again walked out from the same sessions
court premises in Fort, relief writ large on his face this time.
The Bombay High Court on Friday admitted his appeal against conviction for culpable homicide not amounting to murder for killing one person and injuring four in 2002 when his Land Cruiser crashed into a Bandra bakery, suspended his sentence of five years' rigorous imprisonment and released him on bail on a bond of Rs 30,000.
Observing that application of the charge of culpable homicide against Khan requires serious consideration, Justice Abhay Thipsay asked public prosecutor Sandeep Shinde: “Why will this case not be a case of only rash driving?“ The judge observed that “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 IPC is bailable, and invites a lesser punishment.“
Justice Thipsay admitted Khan's appeal soon after the matter got called. An appeal against a trial court verdict is usually admitted as a statutory right of a convict, and the public prosecutor did not oppose it. However, he opposed a plea by Salman's counsel Amit Desai to suspend his sentence and grant bail. Well before the judge could arrive, the ac courtroom was packed with media and lawyers, leaving no room for Salman's counsel Desai and advocate Shrikant Shivade or prosecutor Shinde to walk in. Lawyers, without matters of their own at the time, had perhaps come to see Desai tear at the trial court verdict.
Soon after the judge made it clear that the appeal was admitted, Desai launched into a blitzkrieg against blunders that the probe, prosecution and the judgment itself, he said, revealed. He began by disputing the conclusion that the car had only three occupants. “Ravindra Patil, the complainant, said there were three persons in the car, we said four. The fourth was the driver Ashok Singh. It was known to the prosecution from 2002 itself,“ Desai said, questioning the criticism over the “late introduction“ of the driver as witness in the case. “It is not as if Salman Khan took this as an afterthought,“ he said.
The other point Desai stressed on was the complete acceptance by sessions judge D W Deshpande of Patil's deposition as witness before the magistrate during the earlier trial for the lesser charge of rash driving. “Patil was a reluctant witness, because he was asked to say certain things. His deposition was so artificial. His statement about Salman being drunk or driving at a speed of 90-100 kmph was demolished, yet the judge accepted it.“ Desai said “the verdict is perverse... at many places, the judge merely says he finds no reason to disbelieve witnesses“.
Justice Thipsay asked if only Patil was examined as a witness and questioned why singer Kamaal Khan, the other occupant of the car, wasn't. While Desai said it was the prosecution's discretion, Shinde said he wasn't called since he was a British citizen who had returned to England and that “there was other evidence to prove the case“. Desai said the offence of culpable homicide was not made out. “The evidence produced during trial was not satisfactory,“ he pointed out.
The HC order noted, “It is also submitted there was some evidence to indicate the accident occurred due to bursting of a tyre... it is also submitted that evidence about the applicant being drunk was not satisfactory.“ Desai said though the prosecution's job is to prove beyond reasonable doubt its case, it failed badly.
Asked by the judge why Ashok Singh was not examined, Shinde said it was perhaps because Patil had said he was their day-time driver and at night, Salman drove himself. Shinde said the case against Khan was proved as he “knew the topography and knew people sleep on pavements, yet (he) drove drunk“. He called the fourth person theory “baseless“.
Throughout, Justice Thipsay posed questions to the defence and prosecution and observed, “Why should Salman's rights suffer just because his appeal is pending?“ He said, “We cannot pass an order against the accused just because it is asked for by the prosecution.“ When Shinde objected to the suspension of the sentence, the judge said, “Normally when sentence is less than seven years, 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.“
The judge said he thus directs that the appeal be heard expeditiously and posted it for hearing in July. He also said since Khan has been on bail throughout the trial, including the one for the graver charge of culpable homicide, it was unlikely he would abscond. “This is not a case where in spite of admission of 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,“ he said in the order.
Directing Khan's release on bail, the judge said, “When an appeal is admitted... it would be rather unreasonable to suggest that even where arguable points needing consideration have been raised, appellant must be detained in custody.“
As directed by the HC, Khan then surrendered before sessions court. Close at hand were the two constant faces from his team, sister Alvira Khan Agnihotri and manager Reshma Shetty. His lawyer Shrikant Shivade furnished the fresh bail bond as the actor stood silently beside him. When judge Deshpande said Khan would need to comply and furnish surety within two weeks, he smiled and relaxed. At 5.48pm, as he exited the court premises, a beaming Alvira told TOI, “I am relieved that he is out.“
Law a passion for advocate Desai
For Amit Desai, a senior counsel who represented Salman Khan in the HC, practising criminal law is a passion that is evident to others when he appears in court often to demolish what a prosecution may claim is a water-tight case or to win brownie points, even a sympathetic ear from a strict judge, and a laughter-filled banter that his experience and legal might permits him to have with a judge while waiting for a hearing to begin in earnest. Desai has been appearing for many biggies, some of whom are now facing the 2G trials in Delhi. He appears for ex-CM Ashok Chavan in the Adarsh case where the current battle is now in the Supreme Court against a Bombay HC order not dropping his name. Some legal battles are tough and some are a breeze, some are long and unwieldy and some get him into knots over law points that need interpretation. He has appeared in all such cases, and in any courtroom he appears with a smile, behind which lies his knowledge of the law and quiet determination to beat the opponent in court.
The Bombay High Court on Friday admitted his appeal against conviction for culpable homicide not amounting to murder for killing one person and injuring four in 2002 when his Land Cruiser crashed into a Bandra bakery, suspended his sentence of five years' rigorous imprisonment and released him on bail on a bond of Rs 30,000.
Observing that application of the charge of culpable homicide against Khan requires serious consideration, Justice Abhay Thipsay asked public prosecutor Sandeep Shinde: “Why will this case not be a case of only rash driving?“ The judge observed that “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 IPC is bailable, and invites a lesser punishment.“
Justice Thipsay admitted Khan's appeal soon after the matter got called. An appeal against a trial court verdict is usually admitted as a statutory right of a convict, and the public prosecutor did not oppose it. However, he opposed a plea by Salman's counsel Amit Desai to suspend his sentence and grant bail. Well before the judge could arrive, the ac courtroom was packed with media and lawyers, leaving no room for Salman's counsel Desai and advocate Shrikant Shivade or prosecutor Shinde to walk in. Lawyers, without matters of their own at the time, had perhaps come to see Desai tear at the trial court verdict.
Soon after the judge made it clear that the appeal was admitted, Desai launched into a blitzkrieg against blunders that the probe, prosecution and the judgment itself, he said, revealed. He began by disputing the conclusion that the car had only three occupants. “Ravindra Patil, the complainant, said there were three persons in the car, we said four. The fourth was the driver Ashok Singh. It was known to the prosecution from 2002 itself,“ Desai said, questioning the criticism over the “late introduction“ of the driver as witness in the case. “It is not as if Salman Khan took this as an afterthought,“ he said.
The other point Desai stressed on was the complete acceptance by sessions judge D W Deshpande of Patil's deposition as witness before the magistrate during the earlier trial for the lesser charge of rash driving. “Patil was a reluctant witness, because he was asked to say certain things. His deposition was so artificial. His statement about Salman being drunk or driving at a speed of 90-100 kmph was demolished, yet the judge accepted it.“ Desai said “the verdict is perverse... at many places, the judge merely says he finds no reason to disbelieve witnesses“.
Justice Thipsay asked if only Patil was examined as a witness and questioned why singer Kamaal Khan, the other occupant of the car, wasn't. While Desai said it was the prosecution's discretion, Shinde said he wasn't called since he was a British citizen who had returned to England and that “there was other evidence to prove the case“. Desai said the offence of culpable homicide was not made out. “The evidence produced during trial was not satisfactory,“ he pointed out.
The HC order noted, “It is also submitted there was some evidence to indicate the accident occurred due to bursting of a tyre... it is also submitted that evidence about the applicant being drunk was not satisfactory.“ Desai said though the prosecution's job is to prove beyond reasonable doubt its case, it failed badly.
Asked by the judge why Ashok Singh was not examined, Shinde said it was perhaps because Patil had said he was their day-time driver and at night, Salman drove himself. Shinde said the case against Khan was proved as he “knew the topography and knew people sleep on pavements, yet (he) drove drunk“. He called the fourth person theory “baseless“.
Throughout, Justice Thipsay posed questions to the defence and prosecution and observed, “Why should Salman's rights suffer just because his appeal is pending?“ He said, “We cannot pass an order against the accused just because it is asked for by the prosecution.“ When Shinde objected to the suspension of the sentence, the judge said, “Normally when sentence is less than seven years, 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.“
The judge said he thus directs that the appeal be heard expeditiously and posted it for hearing in July. He also said since Khan has been on bail throughout the trial, including the one for the graver charge of culpable homicide, it was unlikely he would abscond. “This is not a case where in spite of admission of 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,“ he said in the order.
Directing Khan's release on bail, the judge said, “When an appeal is admitted... it would be rather unreasonable to suggest that even where arguable points needing consideration have been raised, appellant must be detained in custody.“
As directed by the HC, Khan then surrendered before sessions court. Close at hand were the two constant faces from his team, sister Alvira Khan Agnihotri and manager Reshma Shetty. His lawyer Shrikant Shivade furnished the fresh bail bond as the actor stood silently beside him. When judge Deshpande said Khan would need to comply and furnish surety within two weeks, he smiled and relaxed. At 5.48pm, as he exited the court premises, a beaming Alvira told TOI, “I am relieved that he is out.“
Law a passion for advocate Desai
For Amit Desai, a senior counsel who represented Salman Khan in the HC, practising criminal law is a passion that is evident to others when he appears in court often to demolish what a prosecution may claim is a water-tight case or to win brownie points, even a sympathetic ear from a strict judge, and a laughter-filled banter that his experience and legal might permits him to have with a judge while waiting for a hearing to begin in earnest. Desai has been appearing for many biggies, some of whom are now facing the 2G trials in Delhi. He appears for ex-CM Ashok Chavan in the Adarsh case where the current battle is now in the Supreme Court against a Bombay HC order not dropping his name. Some legal battles are tough and some are a breeze, some are long and unwieldy and some get him into knots over law points that need interpretation. He has appeared in all such cases, and in any courtroom he appears with a smile, behind which lies his knowledge of the law and quiet determination to beat the opponent in court.
Salman Khan gets 5 years in jail in 2002 hit-and-run case; secures two-day bail
7:54 AM
Sunil Baghel & Sharmeen Hakim Indorewala (MUMBAI MIRROR; May 7, 2015)
Right after sessions court Judge D W Deshpande went into his chamber after he had pronounced his "guilty" verdict in the Salman Khan hit and run case, the actor's sisters rushed to him. Amid the hullabaloo of curious onlookers, fans and female lawyers, special public prosecutor Pradeep Gharat also approached Salman, held his shoulder and said with utmost sincerity: "I didn't want to meet you this way, don't feel bad." Salman held Gharat's arm, and said: "No sir, you're doing your job."
But just hours after the sessions court sentenced him to five years in jail for culpable homicide not amounting to murder for the death of a homeless man, the mood changed as Salman secured interim bail from the Bombay High Court.
The courtroom was packed by 10.15 am. Salman's brother Sohail Khan, Congress MLA Baba Siddique and Salman's brother-in-law Atul Agnihotri (who sported a Being Human cap) were the first to arrive from the family, followed by Arbaaz. They sat in the second row of seating for litigants. The rest of family, including Salman's sisters Alvira and Arpita, along with an unshaven Salman in a white shirt and rugged blue jeans - driven by his driver Ashok Singh with bodyguard Shera and two others by his side - entered court at around 10.50 am.
Judge Deshpande sat on the dais at 11.05 am. Salman took to the witness box, head slightly bowed, looking straight at the judge. His brothers and brother in-law stood up to listen.
At 11.10, Judge Deshpande held Salman guilty for the incident on September 28, 2002, dismissing his defence's points. "It is not probable that anyone but you was driving the car. I have also come to a conclusion you were intoxicated while driving the vehicle and that the cause of death of the victim was the incident itself and not the defence taken by your lawyers," the judge said. The actor seemed taken completely aback.
"You've been found guilty on all counts. The maximum sentence provided is of 10 years, what do you have to say," the judge asked Salman.
"Whatever you say is correct, sir. My lawyer will say whatever I have to say," Salman replied.
At 1.25 pm, when the judge finally sentenced Salman to five years' imprisonment, the entire courtroom gasped.
Usually a drab courtroom with piles of case papers, today was different for Room No 52 of the City Civil and Sessions Court. With more than 100 police officers lining all the way from the ground floor to the courtroom, the buzz was palpable. More than 150 pairs of eyes were fixed on the front left corner of the courtroom where Salman sat. The actor, who seemed calmer than usual, was surrounded by family the entire day.
Immediately after the sentence was pronounced, his family members went into a huddle before their lawyers briefed them. Salman's sister Alvira and her manager along with the lawyers rushed to the Bombay High Court. Remarkably, even before the judgment copy could be made available to the actor, his lawyers filed an appeal in the high court contesting the exact points on which the sessions convicted him. They returned, smiling, at around 5 pm. For the first time since the morning, the family looked relieved.
"We have received relief from high court," Shivade said, panting.
Formalities were finally completed at 7 pm, when the entire Khan family left the court premises. Fans thronged outside, with some crowding the porches of nearby buildings.
Minutes after the judge held Salman guilty, the actor's manager and younger sister Arpita broke down. As the arguments on the quantum of punishment began, there was constant noise in the courtroom. Salman's lawyer could barely be heard. "Sir, arrest these people!" he told the judge, after which police enforcement was called in. Top rung of police officers including Addl CP Krishna Prakash and DCP Satyanarayan Choudhry kept making rounds of the courtroom.
Arguing for a lesser sentence, Salman's lawyer Shrikant Shivade said this would probably be the first case where a person has been held guilty for culpable homicide for causing just one death. The judge said that he had relied mainly on the Alistair Pereira and Sanjeev Nanda cases while convicting Salman for culpable homicide. Shivade then cited those very cases as precedent for not giving more than three years' sentence.
Shivade cited Nanda's case as one where the apex court had recognised the concept of community service. The Supreme Court asked Nanda to pay Rs 50 lakh (to be used for the welfare of victims of hit and run cases) and asked do community service for two years.
He cited that the alcohol content found in both Pereira and Nanda's blood was double than that of Salman and the number of deaths was much higher. Salman, Shivade pointed out, had paid Rs 19 lakh as compensation in 2002 itself unlike other cases where compensation was paid after conviction, and said that the actor was willing to pay more compensation.
Shivade also submitted a chart of "good work" done by Salman's Being Human foundation. "The foundation has spent Rs 42 crore in the past three years, close to 700 surgeries have been performed free on underprivileged children. All this will stop if he is sentenced," Shivade said.
He also pleaded that Salman not be made an example of. "Court is not a ramp for showcasing the sentencing policy. Every offender has to be treated equally," he said.
During the end of the hour-long argument that was sprinkled with interruptions, Shivade took out Salman's neurology reports and handed them over to the judge. This was the only time in the day that Salman looked upset. Cringing when his lawyer started reading out the report - pleading for leniency in view of Salman's health - Salman repeatedly indicated to his sister to make his lawyer stop. "Let it be," Salman muttered under his breath. Alvira stopped her lawyer from reading further.
Gharat stuck to his earlier submission that Salman should be given such a punishment that no one would repeat such a thing. "He is an actor. People not just watch his movies but follow him other things as well. The punishment should not only be deterrent but also exemplary," Gharat said, adding that the number of deaths can't be the criterion for deciding punishment.
Just after the arguments ended, the electricity went off. As the May heat engulfed the courtroom, tempers flared up among the gathered crowd.
Appeal calls judgment illegal
Challenging the sessions court order on 41 grounds, Salman Khan's appeal
to the Bombay High Court says that the lower court "failed to construe
the true scope of section 304 part II of the IPC (culpable homicide not
amounting to murder)." The appeal calls it an error on the part of the judge to not accept Salman's driver Ashok Singh's testimony that he was driving the car, and not accepting that pavement dweller Nurulla Meboob Sharif died during the rescue operation and not the accident.
The appeal challenges the sessions court's acceptance of Salman's police security person the late Ravindra Patil's evidence, saying that the defence could not get to cross-examine him in the new trial.
The appeal challenges evidence given by Patil, Kalpesh Verma (the valet parking guy at the bar where Salman was), Dr Shahsikant Pawar (who drew blood from Salman), Dattaray Bhalshankar (who tested Salman's blood sample) and Rajendra Keskar (the RTO inspector who examined Salman's car). It also calls it an error on the part of the lower court to not consider favourable evidence for Salman.
One of the main grounds why Salman's old bail order was continued by Justice Abhay Thipsay was that the actor was yet to receive the detailed order copy. This could well be precedentsetting, as there is hardly any case where the convict is supplied with a judgment copy immediately after the pronouncement.
"Though there is nothing illegal about it, but the court could have pronounced the order after the judgment was ready - may be tomorrow or day after," said Justice Thipsay.
Senior Advocate Harish Salve had submitted that a person can't be sent to jail without an order. "He should be released on interim bail till he gets the order copy," Salve submitted. Apart from the fact that Salman was on bail during the entire trial period, the bail application mentions that Salman is involved in two ongoing movie projects on which the livelihood of hundreds of people depends, and that Salman has a neurological condition that could aggravate in custody. The high court will hear the case on May 8.
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