In cases involving a fixed-term sentence, appellate courts should exercise discretion to suspend the sentence and grant bail liberally unless exceptional circumstances exist. This approach ensures the effective exercise of the right to appeal and prevents potential irreparable harm caused by incarceration before the appellate process is concluded.

ORDER :

Bhaskar Raj Pradhan, J.

1. An application for suspension of sentence and bail under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (the BNSS) has been filed by the applicant on 05.07.2025 on the following grounds:-

(i) That the applicant has been convicted under section 9(l) of the Protection of Children from Sexual Offences Act, 2012 (the POCSO) and sentenced to a fixed term of five years and to pay a fine of Rs.2000/- vide sentence dated 27.06.2025.

(ii) That the applicant is a permanent resident of Sikkim having his home at Lower Aho, Pakyong, Sikkim.

(iii) That during the trial of the case the applicant was on bail and he did not violate any of the condition of bail.

(iv) That the applicant has a good case to succeed on merits and shall suffer irreparable loss if he is not allowed bail and his sentence suspended.

(v) That the applicant is a driver by occupation and is the only bread-winner in his family.

(vi) That the applicant has a wife, minor daughter and ailing aged mother who recently had undergone surgery for removal of gall bladder stone and she also suffers from diabetes, hypertension and is under constant medications.

(vii) That the applicant being the sole bread winner had been looking after his ailing mother and taking care of her.

(viii) That the applicant would not abscond if granted bail.

2. The application is accompanied and supported by several documents including the final diagnosis of the Department of General Surgery of Central Referral Hospital, Sikkim Manipal University dated 10.02.2025 relating to Mrs. Ran Maya Rai and other connected medical papers of the applicant’s mother.

3. The applicant has also placed on record his Certificate of Identification, transfer certificate issued by the Head Master of the Government Secondary School, Aho Shanti and ‘parcha khatiyan’ of the land recorded in the name of his father.

4. The learned Public Prosecutor appearing for the State- respondent objects to this application. It is pointed out that the victim was a minor during the time of the commission of sexual assault and that the applicant has been convicted on examination of the evidence.

5. The learned Public Prosecutor relies upon the judgment of the Supreme Court in Preet Pal Singh vs. State of Uttar Pradesh & Anr., (2020) 8 SCC 645 in which it has been held as under:

“35. There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of bail, post conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in t