The central legal point established in the judgment is the consideration of the percentage of sentence served, family circumstances, and the likelihood of an early appeal hearing in determining the suspension of sentence.

JUDGMENT

Jasmeet Singh, J. (Oral) -

Crl. M. (Bail) 379/2022

1. This is an application seeking interim suspension of sentence.

2. The appellant was convicted under Section 354/451 IPC read with Section 10 of POCSO Act in FIR No. 205/2016, registered at Police Station-Madhu Vihar, Delhi and sentenced to Rigorous Imprisonment for a period of 5 years.

3. It is submitted that the applicant is a married person, aged about 48 years having a family consisting of wife, two unmarried sons and one married daughter. It is submitted that on account of the long custody of the applicant, the family of the applicant is virtually at the stage of starvation as the applicant is the only earning member of the family. The two sons of the applicant are still studying and are unable to earn any money.

4. In Gavade Kisan Bapu v. Union of India, 2022 SCC OnLine Del 960, the petitioner filed an application for suspension of sentence before this court. He was convicted under Section 45 of National Security Guard Act, 1986, read with Section 10 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to 'POCSO Act') and he was sentenced to undergo imprisonment for a term of 5 years and was also dismissed from service. The petitioner was the sole bread earning member in his family; he had two minor children, who were completely dependent on the petitioner for their survival; and they were in a pitiful and very bad condition, as there was no one to take care of them. This court observed in the case that:

'15. The counsel for the applicant rightly pointed out that in the said case before Madras High Court, the conviction was under Section 5(1) read with Section 6 of POCSO Act, being a case of penetrative sexual assault on the victim by the petitioner. However, charges in the present case are not so grave. In the said case, 10 years rigorous imprisonment was awarded under Section 5(1) read with Section 6 of POCSO Act, apart from other punishments. Whereas, in the present case, the punishment of 5 years was awarded, out of which the present petitioner/applicant has already completed 4 years and 8 months of incarceration. I agree with this submission of the learned counsel for applicant.

16. Keeping in view the judgment of the Hon'ble Supreme Court in the matter of Mossa Koya KP v. State (NCT of Delhi) (Supra), where the petitioner had undergone 8 years imprisonment out of 10 years awarded sentence in a heinous crime under NDPS Act, and the appeal was unlikely to be heard early, the Court was pleased to grant the prayer of the application for suspending the sentence, I am inclined to consider the present application favourably.

17. Moreover, in Haji Mul v. State (NCT of Delhi), a coordinate bench of this court, considered the fact that the appellant was sentenced under Section 8 of POCSO Act to undergo rigorous imprisonment for 3 years with fine of Rs. 1,000/- and he had remained in custody for 1 year and 10 months and 11 days besides earning remission for 5 months and he was not a previous convict, so, he was granted suspension of sentence till disposal of the appeal. Similarly, in the matter of Deepu v. State, the sentence awarded was rigorous imprisonment for 10 years with fine of Rs. 10,000/- for offence punishable under Section 377 IPC and in default of payment of fine, further SI for a period of 6 months and he has been sentenced to undergo RI for a period of 10 years with fine of Rs. 10,000/- for offence punishable under Section 6 of POCSO Act and in default of payment of fine, further SI for a period of six months. He was further sentenced to undergo RI for a period of 5 years with fine of Rs. 1,000/- for offence under Section 363 IPC and in default of payment of fine, further SI for a period of 1 month. He was also sentenced to undergo RI for a period of one year for offence punishable under Section 342 IPC. He was also sentenced to undergo RI for a period of 1 year for offence punishable under Section 506 (Part I) IPC. Out of this p