1. Appeal against conviction and sentence under Section 363 IPC and Section 11/12 POCSO Act for offences against a minor. (Para 1 )
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2026 Supreme(Raj) 570
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
ASHOK KUMAR JAIN, J.
Suraj Kushwah @ Rambabu @ Pachchis S/o Tulsiram – Appellant
Versus
State of Rajasthan – Respondent
S.B. Criminal Misc. 2nd Suspension of Sentence Application No. 1189 of 2025, S.B. Criminal Appeal No. 1291 of 2024
Decided On : 10-03-2026
Advocates Appeared:
For the Appellant : Vikas Bunkar
For the Respondent: Rajendra Singh Shekhawat
For the Appellant : Vikas Bunkar
For the Respondent: Rajendra Singh Shekhawat
Courts should adopt a liberal approach toward the suspension of sentence and grant of bail in cases where a fixed-term sentence has been awarded and the appellant has already served a substantial portion of that sentence.
Headnote:(A) Indian Penal Code - Section 363 - Protection of Children from Sexual Offences (POCSO) Act - Sections 11 and 12 - Bharatiya Nagarik Suraksha Sanhita (B.N.S.S.) - Section 430(1) - Suspension of Sentence - Fixed term sentence - Period of custody - When a fixed term sentence is awarded and the prisoner is in custody due to long detention or has served a substantial part of the sentence, the approach of the court must be liberal in considering the grant of bail and suspension of sentence. (Paras 8, 10)
(B) Criminal Appeal - Suspension of Sentence - Scope - While the court may not express an opinion on the merits of the case at the stage of an application for suspension of sentence, the period of custody served can be a primary ground for enlarging the appellant on bail, especially when a substantial part of a fixed term has been served. (Paras 7, 9, 10)
Facts of the case:
The appellant was convicted under Section 363 of the Indian Penal Code and Sections 11 and 12 of the POCSO Act, receiving a maximum sentence of three years. At the time of the second application for suspension of sentence, the appellant had undergone more than two years, four months, and ten days of the awarded sentence. A previous application for suspension of sentence had been dismissed based on the testimony of witnesses and the appellant's criminal antecedents.
Findings of Court:
The court found that although the merits of the case did not strongly favor the appellant and the previous application was dismissed due to criminal history, the substantial period of custody already served makes the appellant a fit candidate for enlargement on bail.
Issues: Whether the appellant is entitled to the suspension of his sentence and release on bail on the ground of having served a substantial portion of a fixed-term sentence.
Ratio Decidendi: In cases where a fixed-term sentence is awarded, the court should adopt a liberal approach toward bail and suspension of sentence applications if the prisoner has served a substantial part of the sentence, as focusing on the period of custody helps in preventing excessive detention. (Para 8)
Result: Application allowed and sentence suspended till disposal of appeal.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Appellant argued trial court overlooked contradictions and relied on interested witnesses. Maximum sentence three years, substantial custody served. (Para 2 , 3 )
3. Court noted no case on merits but considered substantial custody served and Supreme Court's liberal approach for fixed-term sentences. (Para 6 , 7 , 8 )
4. Liberal approach must be taken in bail/SOS applications where a prisoner has served substantial part of a fixed-term sentence. (Para 8 )
5. SOS application allowed; sentence suspended and appellant enlarged on bail subject to stringent conditions. (Para 10 )
6. What factors are considered when granting bail or suspension of sentence for a fixed-term sentence?
Courts should adopt a liberal approach, especially where the prisoner has served a substantial part of the fixed-term sentence, as per Supreme Court directives. (Para 7 , 8 )
7. Can a bail or SOS application be reconsidered solely based on the period of custody already served?
Yes, the court may consider the period of custody alone as a ground to reconsider a previously dismissed SOS application, even if no case is made out on merits. (Para 7 )
8. What conditions may be imposed when granting bail in cases involving offences against minors?
Conditions may include no direct or indirect contact with the victim or family, attendance at police station, annual court appearance, and no involvement in criminal activity. (Para 10 )
9. What is the effect of criminal antecedents on a bail application?
The court noted the existence of criminal antecedents (13 cases) but did not let that alone bar the bail, as the focus was on the substantial custody served. (Para 6 )
ORDER :
1. This second suspension of sentence application is preferred by appellant-accused in criminal appeal admitted on 11.07.2024 and filed aggrieved from order of conviction and sentence dated 04.04.2024 in sessions case No. 21/2022 passed by learned Special Judge, POCSO Act Cases No.1, Baran wherein appellant-accused was convicted and sentenced under Section 363 IPC and 11/12 POCSO Act.
2. Learned counsel for the appellant while relying upon grounds of appeal submitted that without observing principle of law learned trial court has arrived at a conclusion of conviction. He further submitted that learned trial court has overlooked material contradictions and discrepancies, which goes to root of the matter. He further submitted that the entire case of prosecution rests on testimony of interested witness and no independent witness was examined to corroborate the story of prosecution.
3. Learned counsel for appellant submits that maximum sentence awarded to appellant is three years whereas the appellant has undergone sentence of more than two years four months and ten days out of said sentence. He further undertakes that if appellant being released on bail, he will not indulge in direct or indirect contact with victim or her family members and if he indulged in contact then, bail may be recalled.
4. Aforesaid contentions were opposed by learned Public Prosecutor. He submitted that the complainant has already been informed.
5. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record.
6. First SOS application was dismissed by this Court on 06.08.2024 wherein we have noticed the fact that the statement of PW-1 was supported by her sister PW-5. The parents have also supported the case of victim. The maximum sentence awarded to present petitioner was three years. There was criminal antecedent report placed on record to show that 13 criminal cases were registered against the appellant. Herein also, after considering the entire material, there is no case on merits.
7. Now comes the period of custody and only on the ground of period of custody we are considering the instant SOS application.
8. In Suo Moto Writ Petition (Criminal) No. 4/2021 in Re Policy Strategy for Grant of Bail on 08.05.2025, Hon’ble Supreme Court while considering judgments in case of Bhagwan Ram Shinde Gosai Vs. State of Gujarat , (1999) 4 SCC 421, NCB Vs. Lakwinder Singh , 2025 SCC Online SC 366 and Atul @ Ashutosh Vs. State of U.P. 2024 (3) SCC 663 has focused upon pro-active consideration of bail and SOS applications, where prisoners are in custody due to long detention or facing period of custody for fixed term sentence awarded to them. It was held that the approach of the Court must be liberal in cases, where a fixed term sentence is awarded. Herein, this case the appellant has served substantial part of sentence and the matter requires consideration.
9. At this stage, it is not possible for us to express any opinion on merits of the case, but looking to the facts and circumstances of the case, it is a fit case to enlarge appellant on bail.
10. Having taken note of the period of custody and also the grievance of the victim, it is appropriate to allow the SOS application subject to stringent conditions, therefore, without expressing any opinion on merits, I am of considered view that it is a fit case wherein appellant can be enlarged on bail. The application under Section 430(1) B.N.S.S. is allowed and sentence of appellant accused-Suraj Kushwah @ Rambabu @ Pachchis S/o Tulsiram is suspended till disposal of appeal with the condition that he would executes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 19.05.2026 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
1. After release of appellant on bail, he will not indulge in any criminal activity and if it is found that he is invol
