The court may suspend a sentence pending appeal when practical reasons delay the hearing, emphasizing special concern for such cases.

IA ORDER

(PER : HONOURABLE MS. JUSTICE S.V. PINTO)

1. By way of the present application under Section 389 of the Code of Criminal Procedure , 1973, the applicant - accused no. 3 is seeking suspension of sentence and release on regular bail during pendency of the present appeal against the judgment and order of conviction dated 23.07.2024 passed in Special POCSO Case No. 17/2022 by the learned Special (POCSO), Kalol, whereby, the present applicant – accused no. 3 was sentenced to seven years rigorous imprisonment and fine of Rs. 2,000/- and in default, three months simple imprisonment for the offence punishable under Section 363 of the IPC and seven years rigorous imprisonment and fine of Rs. 2,000/- and in default, three months simple imprisonment for the offence punishable under Section 354(a) and 354(b) read with Section 12 of the The Prevention of Children from Sexual Offences Act . The learned Trial Court was further pleased to order that both the sentences shall run concurrently.

2. Learned Advocate Mr. Jay Thakkar for the applicant submits that the applicant has been convicted for a fixed period of seven years and the applicant has a good prima facie case on merits to succeed in the appeal. That pending the trial, the applicant was granted anticipatory bail by this Hon’ble Court as the applicant had filed Criminal Misc. Application No. 23319/2018 and by an order dated 24.12.2018, the applicant was granted anticipatory bail. That the applicant has not misused the liberty while he was on anticipatory bail. That after the judgement and order of conviction, the applicant is in jail serving the sentence. That the order of sentence qua the main co-accused –

Viral Hareshbhai Vaghela who has been sentenced for a period of ten years, has been suspended by an order of this Court dated 01.10.2024. That the learned Trial Court has properly considered the oral and documentary evidence and there is no allegation regarding any aggravated sexual assault by the applicant. That in fact, the victim herself has stated that the applicant and the victim were friendly with each other and considering the fact that the co-accused who has been sentenced for a period of ten years, has been released on bail and his sentence has been suspended, parity may be granted to the applicant and the application may be allowed and the applicant be enlarged on bail pending the hearing and final disposal of the captioned Criminal Appeal.

3. Learned APP for the respondent – State has strongly objected to the submissions made by the learned advocate for the applicant and has submitted that learned Trial Court has rightly convicted the present applicant as he has been involved in a very serious offence and has requested this Court to dismiss the present application.

4. Having heard learned advocate Mr. Jay Thakkar for the applicant as well as learned APP Mr. Jay Mehta for the respondent – State, it appears that Criminal Appeal against the sentence preferred by the applicant has been admitted by this court and the said Criminal Appeal is not likely to be heard within near future. As per the contention of the learned advocate for the applicant, the applicant has a good case on merits.

5. At this juncture, it would also be fit to refer to the judgment of the Apex Court in the case Bhagwan Rama Shinde Gosai Vs. State of Gujarat reported in (1999) 4 SCC 421 , wherein, it has been held that when the appellants have been sentenced for a fixed period and when the appellate Court finds that due to practical reasons such appeal cannot be disposed of expeditiously the appellate Court must bestow special concern in the matters of suspending the sentence. And without entering into the merits of the case, we are of the opinion that the application requires consideration and accordingly, is allowed. The execution of the sentence in the judgment and order of conviction dated 23.07.2024 passed in Special POCSO Case No. 17/2022 by the learned Special (POCSO), Kalol is suspended during