The completion of 50% of the sentence is one of the factors to be considered for suspension of sentence but not the only factor. The court must also consider other aspects such as gravity of offence committed, nature of crime, quantum of punishment, and the likelihood of the appellant succeeding in the appeal before granting suspension of sentence.

JUDGMENT

CRL.M.(BAIL) 711/2023 (for suspension of sentence)

1. By way of the present application, the appellant seeks regular suspension of sentence during the pendency of the appeal filed by the appellant against the judgment of conviction dated 18th February, 2020, and the order on sentence dated 3rd September, 2020, passed by the learned ASJ (POCSO), Rohini Courts (North), New Delhi in SC Case No.385/2017 under Sections 376(2)(f) and 376(2)(i) of the Indian Penal Code, 1860 (IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

2. Vide judgment dated 18th February, 2020, the appellant was convicted for the offences under Sections 376(2)(f) and 376(2)(i) of the IPC and Section 6 of the POCSO Act and vide order on sentence dated 3rd September, 2020, the appellant was sentenced to undergo twelve years rigorous imprisonment and pay a combined fine of Rs.15,000/-.

3. Senior counsel appearing on behalf of the appellant submits that the appellant has undergone 50% of the total sentence awarded to him and therefore, he is entitled to suspension of sentence. In this regard, reliance has been placed on the following judgments:

(i) Satender Kumar Antil v. Central Bureau of Investigation, (2022) SCC OnLine SC 825;

(ii) Vijay Madanlal Choudhary v. Union of India, (2022) SCC OnLine SC 929.

4. Additionally, the senior counsel appearing on behalf of the appellant states that the appellant was granted interim bail on multiple occasions and has complied with the bail conditions and surrendered on time.

5. The learned APP appearing on behalf of the State submits that the appellant has been convicted of a serious offence under Section 6 of the POCSO Act and has been awarded a sentence of 12 years. It is stated that having undergone 50% of the sentence, by itself, cannot be a ground to grant suspension of sentence. It is further stated that none of the judgments cited on behalf of the appellant lay down an absolute proposition of law that in all offences the appellant has to be released upon completion of 50% of the sentence. Reliance is placed on the judgment of the Supreme Court in Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6 SCC 123.

6. After hearing the counsels for the parties, the judgment was reserved on 2nd August, 2023, and the counsels have filed written submissions along with judgments in support.

7. I have heard the counsels for the parties and perused the material on record.

8. In Satender Kumar Antil (supra), it has been held as under:

"55. Section 389 of the Code concerns itself with circumstances pending appeal leading to the release of the appellant on bail. The power exercisable under Section 389 is different from that of the one either under Section 437 or under Section 439 of the Code, pending trial. This is for the reason that "presumption of innocence" and "bail is the rule and jail is the exception" may not be available to the appellant who has suffered a conviction. A mere pendency of an appeal per se would not be a factor.

56. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available under Section 436-A would also be considered, the courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the appellant.

57. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred under Section 436-A of the Code among other factors ought to be considered for a favourable release on bail.

9. A perusal of the aforesaid paragraphs demonstrates that delay in taking up the main appeal for hearing would be one of the factors for granting suspension of sentence. However, the Court would have to see other relevant factors for gran