Sikkim High Court
Pema Tshering Bhutia vs State Of Sikkim on 12 November, 2021
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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I.A. No. 1 of 2021
IN
Crl. Appeal No. 13 of 2021
Pema Tshering Bhutia,
S/o Pempa Bhutia,
Permanent Resident of Phensong,
P.S. Mangan,
North Sikkim.
(At present Rongyek Jail, Gangtok, East Sikkim)
..... Appellant
Versus
State of Sikkim
.....Respondent
Application under Section 389(1) of the Code of Criminal
Procedure Code, 1973.
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Appearance:
Ms. Zola Megi, Advocate for the Appellant.
Mr. S.K. Chettri, Additional Public Prosecutor and Ms.
Pema Bhutia, Assistant Public Prosecutor for the
State respondent.
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Date of hearing : 12.11.2021
O R D E R (ORAL)
Bhaskar Raj Pradhan, J.
1. This is an application under section 389(1) of the
Code of Criminal Procedure, 1973 (Cr.P.C.) for suspension
of sentence and grant of bail pending disposal of the
appeal.
I.A. No. 01 of 2021 IN Crl. Appeal No. 13 of 2021
Pema Tshering Bhutia vs. State of Sikkim
2. Ms. Zola Megi, learned counsel for the appellant
submits that the order on sentence was passed on
31.08.2021 by which the appellant has been sentenced to
one year each under section 354 and 506 of the Indian
Penal Code, 1860 (IPC). Both the sentences have been
directed to run concurrently. It is submitted that the
appellant was arrested on 06.04.2021 as per the arrest
memo and thus he has already undergone sentence of more
than seven months as on date. As statutory appeal has
been preferred against the impugned judgment dated
28.08.2021 and order on sentence which has now been
admitted for hearing, the appellant may be granted bail.
3. Mr. S.K. Chettri, learned Additional Public
Prosecutor submits that as the appellant has been
convicted by the learned Trial Court, his sentence ought
not to be suspended.
4. Section 389 of the Cr.P.C. provides that pending
any appeal by a convicted person, the Appellate Court may,
for reasons to be recorded by it in writing, order that the
execution of the sentence or order appealed against be
suspended and, also, if he is in confinement, that he be
released on bail, or on his own bond. As the appellant has
been sentenced to only a year the proviso to section 389(1)
Cr.P.C. is not applicable.
I.A. No. 01 of 2021 IN Crl. Appeal No. 13 of 2021
Pema Tshering Bhutia vs. State of Sikkim
5. In Preet Pal Singh vs. State of Uttar Pradesh1 the
Supreme Court held that there is a difference between
grant of bail under section 439 Cr.P.C. and grant of bail,
post-conviction. In the earlier case, there may be
presumption of innocence which is a fundamental
postulate of criminal jurisprudence, and courts may be
liberal, depending on the facts and circumstances of the
case, on the principle that bail is the rule and jail is an
exception. However, in case of post-conviction bail, by
suspension of operation of the sentence, there is a finding
of guilt and the question of presumption of innocence does
not arise. Nor is the principle of bail being the rule and jail
an exception attracted, once there is conviction upon trial.
Rather, the court considering an application for suspension
of sentence and grant of bail is to consider the prima facie
merits of the appeal, coupled with other factors. There
should be strong compelling reasons for grant of bail,
notwithstanding an order of conviction, by suspension of
sentence, and this strong and compelling reason must be
recorded in the order granting bail, as mandated in section
389(1) Cr.P.C. It was further held that in considering an
application for suspension of sentence, the Appellate Court
is only to examine if there is such patent infirmity in the
1 (2020) 8 SCC 645
I.A. No. 01 of 2021 IN Crl. Appeal No. 13 of 2021
Pema Tshering Bhutia vs. State of Sikkim
order of conviction that renders the order of conviction
prima facie erroneous.
6. In Kiran Kumar vs. State of M.P.2 the Supreme Court
noted its opinion in Bhagwan Rama Shinde Gosai vs. State of
Gujarat3 in which it was held when a convicted person is
sentenced to a fixed period of sentence and when he files
an appeal under any statutory right, suspension of
sentence can be considered by the Appellate Court liberally
unless there are exceptional circumstances. If the short-
term sentence is allowed to run during the pending of the
appeal, the appeal itself will become for all practical
purposes, infructuous, so far as the appellant is concerned.
A note of caution was given by the Supreme Court that it
did not mean that the Appellate Court should suspend the
sentence, if its consequence would be a danger to the
society or any other similar difficulties.
7. Considering the rival submissions and examining
the impugned judgment and order on sentence along with
the depositions of the prosecution witnesses, this court is
of the view that it is a fit case in which the appellant ought
to be granted bail pending the final disposal of the appeal.
The judgment rendered by the learned Special Judge,
(POCSO, Act) North Sikkim at Mangan (the learned Special
2 (2001) 9 SCC 211
3 (1999) 4 SCC 421
I.A. No. 01 of 2021 IN Crl. Appeal No. 13 of 2021
Pema Tshering Bhutia vs. State of Sikkim
Judge) dated 28.08.2021 has acquitted the appellant for
the charge under section 7 of the POCSO Act holding that
the prosecution is unable to prove it. The conviction under
section 354 IPC and 506 IPC is for a year each and it has
been directed to run concurrently. The appellant having
already served more than seven months, there is less than
three months further for the appellant to complete the
sentence awarded. The appeal having been admitted is
unlikely to be heard within the period of three months as
the lower court records must be called for, paper books
prepared and matter heard finally. If the appeal is not
heard within the three months next, it would be rendered
infructuous. This court, therefore, deems it appropriate to
suspend the sentence passed on the appellant during the
pendency of the appeal and direct him to be released on
bail on his executing a bond with two solvent sureties to
the satisfaction of the learned Special Judge. Additionally,
he shall appear personally on every date of hearing before
this court, stay away from the victim and not leave Sikkim
without the permission from the learned Special Judge. He
shall also provide his active mobile number as well as his
active email address (if any) to the registry of this court as
well as the court of the learned Special Judge before whom
he shall be produced on Monday 15.11.2021.
I.A. No. 01 of 2021 IN Crl. Appeal No. 13 of 2021
Pema Tshering Bhutia vs. State of Sikkim
8. The application for suspension of sentence and bail
is accordingly allowed and disposed. This order in addition
to the regular mode shall also be communicated
electronically to all concerned.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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