The court may exercise judicial discretion to suspend a sentence pending appeal if the accused was on bail during the trial, the parties were in a relationship, and there is no prospect of an early hearing of the appeal.

IA ORDER

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. Rule. Learned advocates appearing for the respective respondents waive service of Rule on behalf of respective respondents. By consent, Rule is fixed forthwith.

2. By way of this application under Section 430(1) of BNSS, 2023, the applicant Parmar Nirmalsinh Bharatsinh, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 137(2), 87, 64(2)(m) and 65(1) of BNSS, 2023 and Sections 4(2), 5(l) read with Section 6, 8 and 12 of POCSO Act.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 18.09.2025 and order of sentence passed in Special (POCSO) Case No.02 of 2025, whereby, the applicant herein was convicted and sentenced as under:

4. Facts and circumstances giving rise to file appeal as well as this application are that, on 09.11.2024, on the mobile, the accused called the victim at specific place and then took her at Himmatnagar and they stayed together for about 10 days at Himmatnagar. On the basis of FIR and chargesheet, the accused was put on trial and on conclusion of trial, he found guilty for the offences referred above.

5. Learned advocate Mr. Kamlesh Kotai, appearing on behalf of the applicant while praying for suspension of sentence contended that, the age of the victim is in dispute as the prosecution failed to prove the age by admissible and conclusive proof. This is a case of love affair and the victim herself left her home and stayed with the accused as husband and wife for a considerable time. In such circumstances, it is prayed that, when there are no possibilities of early hearing of the appeal and considering the merits in the appeal, the prayer may be considered.

6. On the other hand, Mr. Manan Maheta, learned Additional Public Prosecutor as well as Dr. Hardik K. Raval, learned advocate for original complainant have supported the impugned judgment and order of conviction as passed by the trial Court and contended that, the victim was admittedly minor at the time of incident and her consent is no consent in eye of law and thus, trial court has rightly convicted the accused and in absence of any exceptional circumstances, the prayer may not be entertained.

7. Issue arises for our determination, as to whether the applicant has made out a case for suspension of sentence?

8. We have carefully examined the case records and considered the submissions made at the bar. We take notice of the fact that, the victim and accused were in relations and that is why, they stayed together for 10 days and more at Himmatnagar. The accused was throughout on bail and chances and there is no possibility of early hearing of the appeal. In such circumstances, we are persuaded to exercise our judicial discretion in favour of the applicant.

9. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 18.09.2025 by the learned Add