The main legal point established in the judgment is that the Appellate Court has the power to suspend the sentence by releasing the Appellant on bail during the pendency of an appeal, after considering the gravity of the offence, nature of the crime, and the Appellant's family condition.

ORDER :

1. On a joint trial conducted of the three convicted persons the learned Special Judge, (POCSO), West Sikkim at Gyalshing vide judgment dated 09.11.2017 convicted all of them including the present Applicant.

2. An appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.) was preferred by the Applicant on 28.03.2018.

3. The present application under Section 389 of the Code of Criminal Procedure, 1973 for suspension of sentence pending the appeal was preferred by the Applicant on 28.03.2018 itself. The Applicant pleads that he is the only earning member of his family consisting of himself, his wife and two minor children who has been in judicial custody since 11.02.2017. The Applicant also pleads that although there was no material against the Applicant he was convicted under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and under Section 506 of the Indian Penal Code, 1860 (IPC). It is pleaded that since the appeal may take considerable time for final disposal he may be released on bail. The Applicant is willing to appear before this Court on every date of hearing and abide by any stringent terms and conditions imposed. The Applicant is also ready to produce reliable sureties to the satisfaction of this Court.

4. On 04.05.2018 the appeal was admitted for hearing.

5. On 10.05.2018 a reply to the said application was filed by the State-Respondent. The State-Respondent alleges that the offences are heinous and there are sufficient materials against the Applicant who was convicted not only for sexual assault upon the victim but also for criminally intimidating and threatening the victim.

6. On 08.10.2018 the connected matters on the joint request of the parties was listed for hearing on 18.04.2019.

7. Heard Ms. Gita Bista, learned legal aid counsel for the Applicant and Mr. Karma Thinlay Namgyal, learned Additional Public Prosecutor for the State-Respondent.

8. Ms. Gita Bista would point out that the Applicant although not named in the First Information Report (FIR) lodged against the other convicts was charge-sheeted nevertheless by the Investigating Officer in the same case on the basis of a statement of the victim recorded under Section 164 Cr.P.C. pursuant to the FIR lodged against the other two convicts. It is also submitted that the allegation in the statement of the victim recorded under Section 164 Cr.P.C. would reveal that the alleged incident was unconnected with the said FIR lodged against the other convicts. It is submitted therefore, that the entire prosecution against the Applicant was faulty relying upon a Division Bench judgment of this Court in re: Taraman Kami vs. State of Sikkim, SLR (2017) SIKKIM 781, in which it was held that if the Investigating Officer had during investigation of a particular case against a particular person stumbled upon an offence of the like nature committed against the victim by another it was his duty to record the facts stated, treat it as a fresh complaint and carry out investigation into the matter, the alleged offence being independent of the offence being investigated previously.

9. Ms. Gita Bista would also submit that in view of the fact that the connected matters would be listed for hearing only on 18.04.2019 the Applicant may be released on bail as it is causing immense hardship to his family.

10. A bare reading of Section 389 Cr.P.C. makes it evident that during the pendency of an appeal, an Appellate Court has the requisite power to suspend sentence on the Appellant by releasing him on bail. However, this power can be exercised after affording opportunity to the Public Prosecutor in case of offence punishable with death or imprisonment for life or imprisonment for 10 years or more and after recording reasons in writing.

11. The Applicant was convicted by the learned Special Judge for commission of sexual assault upon the victim under Section 8 of the POCSO Act, 2012 and for criminal intimidation and threatening the child under S