The court may exercise its discretion to suspend a sentence and grant bail pending appeal by considering the age of the convict and the likelihood of significant delay in the final hearing of the appeal.

IA ORDER

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

1. Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.

2. By way of this application under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023, applicant, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Section 354(a)(i), 354(a)(ii), 354(a)(iv) of the Indian Penal Code and Section 8 of Protection of Children From Sexual Offences Act and Section 3(i)(w) of Atrocity Act .

3. The present appeal and the application for suspension of sentence arise from the judgment dated 13.05.2025 and order of sentence passed in Special POCSO Case No. 11 of 2019, whereby, the applicant herein was convicted and sentenced as under:

4. Facts and circumstances giving rise to file present application are that the accused herein being an owner of provision store, with sexual intent, touches the body part of the minor victim, when she came to his shop for purchase a grocery. The first incident was being occurred on 18.11.2018 in the noon hours and on the next day also, she was subjected to sexual assault as defined under Section 7 of the POCSO Act. In such circumstances, on filing of the FIR and chargesheet, the accused was put on trial and at the end, he has been found guilty for the offences referred above and sentenced to maximum 5 years sentence and directed to undergo the sentences consecutively, instead of concurrently.

5. Learned advocate Mr. Satyam Chhaya for Mr. N. H. Shah, learned advocate appearing on behalf of the applicant while praying for suspension of sentence contended that, the accused has undergone substantial sentence and sentence being a fixed term sentence, the Court may exercise discretion for granting relief as prayed for.

6. On the other hand, Mr. Ronak Raval, learned Additional Public Prosecutor and Mr. Bhavin Thakkar for Mr. V. K. Azad, learned advocate for respondent no. 2 have supported the impugned judgment and order of conviction as passed by the trial Court and contended that the offence proved is serious one and once the accused stood convicted for very serious offence, the presumption of innocence would no longer exist and therefore, no grounds exists for granting discretionary relief as prayed for.

7. Issue arises 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. In the facts of the present case, the age of the accused is 70 yrs. The maximum sentence imposed is 5 years. The convict was throughout on bail and since May, 2025, he is in judicial custody. It is an admitted fact that the appeal challenging the conviction may not likely to be listed for final hearing in near future. In such circumstances, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of suspension of sentence and grant of bail.

9. Accordingly, present application is allowed. Rule is made absolute to aforesaid e