In cases of fixed-term incarceration, appellate courts should exercise discretion to grant relief pending appeal if the duration of proceedings risks rendering the challenge infructuous, absent evidence that such release would be contrary to public interest.

ORDER (ORAL) :

Bhaskar Raj Pradhan, J.

1. The applicant has filed an appeal under section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (the BNSS). He has been convicted vide impugned judgment dated 27.05.2025 and sentenced vide order dated 30.05.2025 to undergo rigorous imprisonment for a term of three years and fine of Rs.2000/- for the offence under section 7 punishable under section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

2. As the applicant was convicted by the learned Special Judge on 27.05.2025 and he was taken into custody on 27.05.2025. He has been in custody since then.

3. The application for suspension of sentence is under section 430(1) of the BNSS, 2023 which provides that pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond or bail bond.

4. The learned Senior Counsel for the applicant submits that conviction of the applicant is for having committed sexual assault and not for any graver offence under the POCSO Act. He submits that in such cases the suspension of sentence can be considered by the Appellate Court liberally unless there are exceptional circumstances. In support of his submissions he cites the judgment of the Supreme Court in Bhagwan Rama Shinde Gosal & Anr. vs. State of Gujarat, (1999) 4 SCC 421

5. Vehemently objecting the suspension of the applicant’s sentence and his release on bail, Mr. Yadev Sharma, learned Additional Public Prosecutor cites yet another judgment of the Supreme Court in AAsif @ Pasha vs. The State of U.P. & Ors., 2025 INSC 944 in which it was held:

“19. It is unfortunate that the High Court while passing the impugned order failed to take into consideration the well-settled principles of law governing the plea of suspension of sentence on fixed term is concerned. What the High Court did was to reiterate the entire case of the prosecution and the oral evidence which has come on record.

20. That is not the correct approach.

21. The High Court should have been mindful of the fact that the appeal is of the year 2024. Appeal of 2024 is not likely to be taken up in near future. Ultimately, if 4 years are to elapse in jail the same would render the appeal infructuous and that would be travesty of justice.

22. In such circumstances, referred to above, we set aside the impugned order and remand the matter to the High Court for fresh consideration of the plea of the appellant - herein for suspension of the substantive order of sentence keeping in mind the principles of law as explained by us aforesaid. The High Court shall keep in mind that the sentence is for a fixed term, i.e. 4 years and it is only if there are any compelling circumstances on record to indicate that the release of the appellant would not be in public interest that the Court may order accordingly.”

6. The learned Additional Public Prosecutor submitted that this was a case of a conviction under section 7 punishable under section 8 of the POCSO Act for sexual assault on a 14 years old child and therefore that itself would be compelling circumstance on record that the release of the applicant would not be in public interest. The learned Additional Public Prosecutor submits that both the victim and the applicant are neighbours hailing from the same village and therefore, releasing the applicant would disturb the society and also the victim. The learned Senior Counsel for the applicant submits that the applicant has a relative who