Gauhati High Court
Page No.# 1/9 vs The State Of Assam on 26 September, 2025
Page No.# 1/9
GAHC010170662025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./302/2025
ABDUR RASHID AND 3 ORS.
S/O. LT. ABDUL JALIL, R/O. NO. 2 GORAIMARI, P/S. PANBARI, DIST.
CHIRANG, ASSAM
2: RAHIM BADSHA
S/O. ABDUR RASHID
R/O. NO. 2 GORAIMARI
P/S. PANBARI
DIST. CHIRANG
ASSAM
3: RUKIYA BIBI
W/O. ABDUR RASHID
R/O. NO. 2 GORAIMARI
P/S. PANBARI
DIST. CHIRANG
ASSAM
4: AMIR HAMJA
S/O. ABDUR RASHID
R/O. NO. 2 GORAIMARI
P/S. PANBARI
DIST. CHIRANG
ASSA
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : B BARMAN, MR. H ALI,MR. I A HAZARIKA,MR. I U
CHOWDHURY,MR H R A CHOUDHURY
Page No.# 2/9
Advocate for the Respondent : PP, ASSAM,
Linked Case : I.A.(Crl.)/856/2025
ABDUR RASHID AND 2 ORS.
S/O. LT. ABDUL JALIL
R/O. NO. 2 GORAIMARI
P/S. PANBARI
DIST. CHIRANG
ASSAM
2: RAHIM BADSHA
S/O. ABDUR RASHID
R/O. NO. 2 GORAIMARI
P/S. PANBARI
DIST. CHIRANG
ASSAM
3: AMIR HAMJA
S/O. ABDUR RASHID
R/O. NO. 2 GORAIMARI
P/S. PANBARI
DIST. CHIRANG
ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP
ASSAM
------------
Advocate for : B BARMAN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
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BEFORE
HONOURABLE MR. JUSTICE PRANJAL DAS
ORDER
Date : 26.09.2025
Heard Mr. H.R.A. Choudhury, learned Senior counsel assisted by Mr. I.A.
Hazarika, learned counsel for the applicants; Mr. P. Borthakur, learned Additional
Public Prosecutor/respondent No.1.
2. The instant application under Section 430 Bharatiya Nagarik Suraksha
Sanhita, 2023 is preferred by the applicants-appellants seeking suspension of
execution of the sentence passed against them and for their release on bail.
3. The applicants as the appellants have preferred the accompanying criminal
appeal, Criminal Appeal no. 302/2025 against a Judgment and Order dated
11.07.2025 passed by the Court of learned Additional Sessions Judge, Bijni at
Chirang ['the Trial Court', for short] in Sessions Case no. 22 [P]/2021 and
Sessions Case no. 12 [P]/2022. By the Judgment and Order dated 11.07.2025,
the applicants-appellants have been convicted for the offences under Section
304 Part-II/308/323, Indian Penal Code [IPC] read with Section 34, IPC. For the
offence under Section 304 Part-II, IPC read with Section 34, IPC, the applicants-
appellants have been sentenced to rigorous imprisonment for 7 [seven] years
and to pay a fine of Rs. 20,000/- with default stipulations. For the offence under
Section 308, IPC read with Section 34, IPC, the applicants-appellants have been
sentenced to undergo rigorous imprisonment for 3 [three] years and to pay a
fine of Rs. 10,000/- with default stipulations. For the offence under Section 323,
IPC read with Section 34, IPC, the applicants-appellants have been sentenced to
undergo rigorous imprisonment for 1 [one] year and to pay a fine of Rs.
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10,000/-, with default stipulations. All the sentences are ordered to run
concurrently.
4. The learned Senior counsel for the applicants has taken the Court through
some portions of the prosecution evidence and contends that the parts of the
prosecution suffers from infirmities which will have to bearing on the outcome of
the accompanying criminal appeal. It is also submitted that the learned trial
court has erroneously recorded the conviction of the applicants and sentenced
him accordingly. It is also submitted by the learned Senior counsel that it is
uncertain that when the appeal would be disposed of. Summing up his
submissions, the learned Senior counsel for the applicants contends that the
sentence may be suspended and the applicants may be allowed to go on bail. It
is also submitted on behalf of the applicants that the applicants will abide by
any condition imposed and shall not abscond.
5. On the other hand, the learned Additional Public Prosecutor for the State
submits that there is no infirmity in the impugned judgment and order and that,
the learned trial court has rightly passed the same. He has further submitted
that the prosecution evidence does not suffer from any fettle infirmity and that
the evidence on record is cogent and proves the guilt of the
applicants/appellant. It is also submitted that the applicants should not be given
bail at this stage.
6. I have perused the relevant portion and considered the submissions.
7. Since the sentences are concurrent, therefore the highest sentence that
the applicants will have to undergo is seven years which has been imposed for
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his conviction under Section 304 Part-II. The applicants is stated to be
undergoing the sentence since 11.07.2025 i.e. from the date of their conviction
and sentence.
8. Before proceeding further, reference may made to a decision of Hon'ble
Supreme Court rendered in the case of Bhagwan Rama Shinde Gosai &
Ors. Vs. State of Gujarat, reported in (1999) 4 SCC 421. A reference may
be made to para 2 thereof, wherein, it has been stated inter alia that, "when a
convicted person is sentenced to fixed period of sentence and when he files
appeal under any statutory right, suspension of sentence can be considered by
the appellate court liberally unless there are exceptional circumstances. On
course if there is any statutory restriction against suspension of sentence it is a
different matter. Similarly, when the sentence is life imprisonment the
consideration for suspension of sentence could be of a different approach. But if
for any reason the sentence of limited duration cannot be suspended every
endeavour should be made to dispose of the appeal on merits more so when
motion for expeditious hearing the appeal is made in such cases. Otherwise the
very valuable right of appeal would be an exercise in futility by efflux of time.
When the appellate court finds that due to practical reasons such appeals
cannot be disposed of expeditiously the appellate court must bestow special
concern in the matter of suspending the sentence. So as to make the appeal
right meaningful and effective. Of course appellate courts can impose similar
conditions when bail is granted.
9. From the applicants' side, it is submitted that the present applicants are in
custody since 11-07-2025. While considering a question of suspension of
sentence and bail in a criminal appeal, two of the most important considerations
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for the court would be as to whether the convict appellants will be available to
receive the appellate judgment and whether the convict appellants after being
granted bail might risk causing any harm to the witnesses, informant etc.
Though some broad possibilities on merits can perhaps be looked at, while
adjudicating suspension of sentence and bail, but in terms of the settled law of
the Hon'ble Supreme Court - certainly no full hearing on merits can be
undertaken. The same may also prejudice the appellants. Nevertheless, in a
situation where some glaring defect in the trial court judgment is noticed, that
might be a relevant factor in the adjudication in a matter of this kind.
10. Another relevant factor to consider is what is the possibility of the appeal
coming up for final hearing in the future. Alternatively, it can be said that how
long after registration of the case, the appeal is likely to come up for hearing
from the queue in the normal course would certainly be a relevant factor also.
11. Needless to say that, if the convict appellants undergoes a whole or
substantial part of the sentence and ultimately his appeal results in acquittal -
the same could not only be violative of his constitutional rights, but could also
damage the credibility and prestige of the institution of the criminal justice
system, including most importantly the credibility/prestige of the institution of
appellate courts. Of course, that does not mean that in applications filed for
suspension of sentence and bail, the same shall be allowed in every case as a
matter of course. In most such adjudications, various factors have to be
balanced to arrive at a decision which is believed to be most in conformity with
justice.
12. From the principles laid down by the Hon'ble Supreme Court in the case of
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Bhagwan Rama Shinde (supra), generally speaking, the Hon'ble Apex court
has encouraged invocation of power of suspension of sentence and bail in case
of fixed sentences i.e. sentences other than life imprisonment with remission.
13. The present criminal appeal has been registered in the year 2025 and at
this stage it is not possible to hazard a guess as to when it can come for hearing
in the normal course. This Court while deciding this matter does not have data
about the approximate number of criminal appeals ahead of the present criminal
appeal in the queue waiting for their turn of hearing in the normal course.
14. The prosecution has undoubtedly made some serious contentions on
merits of the trial court judgment and has contended the possibility of the
impugned judgment passing the test of appeal. Nevertheless, the other aspects
of the matter as indicated also cannot be brushed aside. More importantly, the
guidelines and principles indicated and laid down by the Hon'ble Supreme Court
have to be kept in mind by this Court and that this court is bound to do so in
the interest of justice and judicial discipline. It cannot be overlooked that the
present sentence of 7 years is not a short term sentence. It would probably fall
in the category of a medium sentence. The possibility and the risks attended
with releasing the appellants on bail at this stage are always there.
15. It also has to be kept in mind that presumption of innocence would not be
applicable at this stage. However, it cannot be denied that admission of a
criminal appeal means that the appellate court has agreed to re-look at the
question of guilt of the appellants as recorded by the learned trial court.
16. In the entire facts and circumstances, I am of the considered view that if
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the two basic concerns of the court as indicated in the earlier part of the order
can be taken care of by imposing conditions - then perhaps, the convict
appellants can be released on bail at this stage by suspending the sentence.
17. Consequently, accepting this interlocutory application, it is directed that
execution of sentence imposed vide order dated 11-07-2025 passed by the
learned Additional Sessions Judge, Bijni in Sessions Case No. 12[P]/2022, is
hereby suspended till disposal of the appeal. Further, the applicants, namely,
Abdul Rashid, Rahim Badsha and Amir Hamja, shall be released on bail of
Rs. 50,000/- each with one surety each of the like amount, to the satisfaction
of the learned trial court. Further the following conditions are imposed -
(i) The applicants shall not abscond;
(ii) That the applicants shall be available to receive the appellate
judgment;
(iii) The applicants shall appear before the learned trial court once in
three months; the learned trial court shall be at liberty to fix specific
dates for the same and also modify the time frame fixed;
(iv) The applicants shall not in any manner cause any harm to the
informant or the victim;
(v) The applicants shall not cause any harassment or harm to any of the
witnesses who might have adduced evidence during the trial;
18. In case of any violation of the bail conditions, the learned prosecution or
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informant side shall be at liberty to seek cancellation of the bails.
19. Though the name of convict appellant Rukia Bibi is mentioned in the
cause title but upon perusing the case record, I found that her sentence was
suspended and she was granted bail vide order dated 11.08.2025 passed in I.A.
(Crl.) 857/2025.
20. Nothing in this order shall be construed as an expression of opinion on the
merits of the pending criminal appeal.
21. In view of the above, interlocutory application stands allowed and
disposed of.
JUDGE
Comparing Assistant
