THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
DATED : 19th October, 2023
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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I.A. No.01 of 2023 in Crl.A. No.26 of 2023
Appellant/Petitioner : Anga Bahadur Gurung
versus
Respondent : State of Sikkim
Application under Section 389(1) read with
Section 482 of the Code of Criminal Procedure, 1973
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Appearance
Mr. Umesh Ranpal, Advocate (Legal Aid Counsel) for the
Petitioner.
Mr. S. K. Chettri, Additional Public Prosecutor for the State-
Respondent.
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ORDER (ORAL)
Meenakshi Madan Rai, J.
1. Heard on I.A. No.01 of 2023 which is application filed
by the Appellant under Section 389(1) read with Section 482 of the
Code of Criminal Procedure, 1973, seeking suspension of the
execution of the impugned Judgment and Order on Sentence, both
dated 29-08-2023, passed by the Learned Special Judge (POCSO),
West Sikkim, at Gyalshing, in S.T. (POCSO) Case No.08 of 2022
(State of Sikkim vs. Anga Bahadur Gurung).
2. The Petitioner was convicted under Section 7
punishable under Section 8 of the Protection of Children from
Sexual Offences Act, 2012 and sentenced to three years simple
imprisonment with fine of ₹ 5,000/- (Rupees five thousand) only,
with default clause of imprisonment. For Section 354A(2) of the
Indian Penal Code, 1860, the Appellant was sentenced to undergo
rigorous imprisonment for one year. The allegation therein was
that the Appellant had sexually harassed the minor victim. I.A. No.01 of 2023 in Crl.A. No.26 of 2023 2
Anga Bahadur Gurung vs. State of Sikkim
3. Learned Counsel for the Appellant submits that during
the course of trial the Appellant unerringly appeared before the
Learned Trial Court on all dates fixed for trial, as he was on bail.
That, he is the only earning member in his family working in the
Horticulture Department, Government of Sikkim and that if he is
taken into custody his family shall suffer irreparably. That, in
consideration of the conduct of the Appellant during the trial he
may be enlarged on bail and he is willing to abide by all the terms
and conditions imposed.
4. Learned Additional Public Prosecutor for the State-
Respondent while vehemently objecting to the Petition for bail
contended that the offence is a heinous offence committed by an
adult on a minor, who was a school going student. That, the
Learned Trial Court has convicted him of the offence and in such
circumstances, the Petition for bail deserves no consideration and
the same be dismissed.
5. I have heard the submissions and considered the
grounds put forth by Learned Counsel for the parties.
6. In Bhagwan Rama Shinde Gosai and Others vs. State of 1 Gujarat it was held that when a convicted person is sentenced for a
fixed period 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.
7. In view of the facts placed before me and considering
the conduct of the Petitioner, viz., that while on bail during trial he
continued to appear before the Learned Trial Court, I am of the
considered opinion that this is a fit case where the Petitioner can
be enlarged on bail, subject to the following conditions;
1
(1999) 4 SCC 421 I.A. No.01 of 2023 in Crl.A. No.26 of 2023 3
Anga Bahadur Gurung vs. State of Sikkim
(i) The Petitioner shall furnish PB&SB of ₹ 50,000/- (Rupees
fifty thousand) only, each, with one solvent surety, to the
satisfaction of the Learned Special Judge (POCSO), West
Sikkim, at Gyalshing.
(ii) He shall, however, not leave the station without the prior
permission of the Learned Special Judge (POCSO), West
Sikkim, at Gyalshing.
(iii) He shall appear before this Court on all dates fixed.
(iv) Should the Petitioner fail to report to this Court on the dates
fixed, his bail bonds stand cancelled and he shall be taken
into custody forthwith.
8. Sentence imposed by the Learned Trial Court against
the Petitioner stands suspended till further orders.
9. The observations made hereinabove are only for the
purposes of the instant bail application and shall in no manner be
construed as findings on the merits of the Appeal.
10. I.A. No.01 of 2023 is allowed and disposed of
accordingly.
11. A copy of this Order be forwarded to the Learned Trial
Court for information and compliance.
( Meenakshi Madan Rai ) Judge 19-10-2023
Approved for reporting : Yes ds/sdl
