Gauhati High Court
Badshah Ali vs The State Of Assam And Anr on 8 January, 2024
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GAHC010062932020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case : I.A.(Crl.)/267/2020
BADSHAH ALI
S/O- LATE SAFAR ALI
VILL.- 1/2 BARUAJHAR
P.S. AND DIST.- DALGAON
ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
TO BE REP. BY THE PUBLIC PROSECUTOR
ASSAM.
2:KHALEDA JIA
D/O- ABDUL KALAM @ BADSHAH
VILL.- NO. 1/2 BARUAJHAR
P.O. JANGALPARAP.S. DALGAON
DIST.- DARRANG
ASSAMPIN- 784116.
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Advocate for : MR H R A CHOUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
08.01.2024
Heard Mr. H. R. A. Choudhury, learned Sr. counsel for the petitioner assisted by
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Ms. H. Ahmed, learned counsel for the applicant. Also heard Mr. B. B. Gogoi,
learned Additional Public Prosecutor, Assam.
2. This application is filed under Section 389 Cr.P.C. praying for suspension of
the judgment and order of conviction and sentence, dated 20.01.2020 passed
by the learned Sessions Judge, Darrang, Mangaldoi in Special (POCSO) Case No.
12/2017 convicting the accused/appellant under Section 4 of the POCSO Act
and to undergo R.I. for 10 years and to pay fine of Rs.5000/- in default RI for
another six months.
3. Heard Mr. B. B. Gogoi, learned Additional Public Prosecutor who has
submitted an objection against the bail petition.
4. Notice was issued to respondent No.2 but none has appeared. Office note
dated 04.01.2024 in Crl. Appeal No. 118/2020 reflects that notice was served on
respondent No.2.
5. It is submitted by the learned counsel for the petitioner that the petitioner
is behind the bars since 10.11.2019.
6. The evidence of medical officer as PW-1 reflects that the radiological
examination reveals that the age of the victim is approximately between 16 to
17 years. The higher side by two years ought to be considered. It is submitted
that this is not a case of POCSO Act. If the radiological age of the victim is taken
into consideration, this case may be under Section 376 of the IPC. It is also
submitted that there is every possibility that the applicant will be acquitted in
connection with the connected appeal. It is also submitted that there was an
inexplicable delay of three months in lodging the FIR.
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7. The learned Senior counsel has taken this Court through the cross-
examination of the witnesses and the questions posed during the cross-
examination of the witnesses. Learned Senior counsel also relied on a decision
of Hon'ble the Supreme Court in Criminal Appeal No. 3415/2023 in Vishnubhai
Ganpatbhai Patel & Another vs State of Gujarat , wherein it has been observed
that:
"We may note here something about the approach of the High court while
dealing with the application for suspension of sentence. Before the High Court,
surprisingly, a submission was made on behalf of the State that sentence
undergo only post conviction should be considered and therefore, a submission
was made that the appellants had undergone only 05 months and 27 days. The
High Court has accepted the said submission by recording that the appellants
have not even completed 01 year of sentence. Apart from the fact that the said
approach is incorrect, we may note here that there is no hard and fast rule
which requires an accused to undergo sentence for a particular period before
his prayer for suspension of sentence is considered.
Accordingly, the appeal is allowed."
8. I have considered the submissions at the bar and relied on the decision
of Vishnubhai Ganpathai (supra). The appeal has been pending since 2020 and
it has not come up for hearing and it is not likely that the appeal will be
disposed of sometime soon. The merits of the case are not at all taken into
consideration at this juncture.
9. Considering the peculiar and unique nature of this case, the operation of
the order of conviction and sentence dated 20.01.2020 of the learned Sessions
Judge, Darrang, Mangaldoi in Special (POCSO) Case No. 12/2017 is stayed until
further order and the applicant is enlarged on bail of Rs.50,000/- with one
suitable surety of like amount to the satisfaction of the trial court. The trial court
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may impose any bail conditions which the trial court deems fit and proper.
10. In view of above this Interlocutory Applications stands disposed of.
JUDGE
Comparing Assistant
