Sikkim High Court
Sushan Darjee (Hingmang) vs State Of Sikkim on 28 October, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
DATED : 28th October, 2024
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DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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I.A. No.01 of 2024 in Crl.A. No.27 of 2024
Appellant/Petitioner : Sushan Darjee (Hingmang)
versus
Respondent : State of Sikkim
Application under Section 389(1)
of the Code of Criminal Procedure, 1973
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Appearance
Mr. Madan Sundas, Advocate (Legal Aid Counsel) for the
Petitioner.
Mr. Yadev Sharma, Additional Public Prosecutor for the State-
Respondent.
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ORDER
Meenakshi Madan Rai, J.
1. Heard on I.A. No.01 of 2024 which is an application
under Section 389(1) of the Code of Criminal Procedure, 1973
(hereinafter, "Cr.P.C."), filed by the Petitioner/Appellant/Convict,
seeking suspension of the sentence imposed on the Petitioner by
the Learned Trial Court and his enlargement on Bail. The
Prosecution has filed its response to the Bail application.
2. Learned Counsel for the Petitioner submits that an
Appeal has been filed before this Court by the Petitioner, assailing
the Judgment dated 30-07-2024 and Order on Sentence dated
31-07-2024 of the Court of the Learned Special Judge (POCSO
Act, 2012) in S.T. (POCSO) Case No.24 of 2021, whereby the
Petitioner was convicted under Section 376(1) of the Indian Penal
Code, 1860 (hereinafter, "IPC"). He was sentenced to
imprisonment and fine vide the impugned Order on Sentence.
Sushan Darjee (Hingmang) vs. State of Sikkim
Learned Counsel submitted that an FIR was registered against the
Petitioner on 14-05-2021 and he was arrested on 15-05-2021.
The victim was allegedly sexually assaulted by the Petitioner on
12-04-2021. On 23-04-2021 when a pregnancy test was carried
out by her with the assistance of a Pregnancy Test Kit, she tested
positive for pregnancy. Both the Petitioner and the victim then
eloped on 12-05-2021 and returned home after three days to
complete the customary rites of elopement, but the Petitioner was
arrested instead. That, the Petitioner upon his conviction was
taken into custody on 30-07-2024 and is presently lodged at the
Central Prison, Rongyek. That, the Petitioner has a prima facie
good case of succeeding in the Appeal as the Prosecution failed to
prove its case beyond reasonable doubt, regardless of which the
Learned Trial Court pronounced the impugned Judgment on
hypothesis and conjectures. That, the Prosecution failed to
establish that the victim was a minor. However, the provisions of
Section 222(2) of the Cr.P.C. was invoked on the Petitioner
convicted by the offence of rape under Section 376(1) of the IPC
as the act was consensual and in the absence of proof of age of
the victim, the Petitioner could not have been convicted of the
offences (supra). The Petitioner was twenty-two years of age and
both were in fact in a romantic relationship. Besides, the
Prosecution failed to establish the case of sexual assault against
the Petitioner under Sections 5(j)(ii), 5(l) and 5(q) of the
Protection of Children from Sexual Offences Act, 2012, punishable
under Section 6 of the same Act read with Sections 376(2)(n),
376(2)(h) and 376(3) of the IPC. That, in the interregnum the
victim married another person and the Petitioner now has a wife
Sushan Darjee (Hingmang) vs. State of Sikkim
and a child of twenty months and he is the only bread winner in
his family. That, his wife is from West Bengal and as she is
unemployed she would be reduced to vagrancy if the Petitioner
continues to be incarcerated. That, he will abide by all conditions
imposed by the Court and will not abscond if enlarged on Bail.
That, in view of the said circumstances, the Petition be considered
and allowed.
3. Learned Public Prosecutor objected to the Petition for
Bail and contended that the Petitioner has been found guilty of a
heinous offence by the Learned Trial Court and therefore the
question of him being entitled to Bail does not arise. That, the
Supreme Court in Preet Pal Singh vs. State of Uttar Pradesh and
Another had observed that there is a difference between grant of
Bail under Section 439 of the Cr.P.C. in case of pre-trial arrest
and suspension of sentence under Section 389 Cr.P.C. and grant
of Bail, post conviction. That, in the earlier case, there may be a
presumption of innocence, which is a fundamental postulate of
criminal jurisprudence and the Courts may be liberal, depending
on the facts and circumstances of the case, on the ground that
Bail is the rule and jail is an exception. That, 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. The principle of Bail being the rule and
jail an exception is not attracted, once there is conviction upon
trial. In such a circumstance, Bail is granted only if there are
strong and compelling reasons, notwithstanding an order of
conviction.
(2020) 8 SCC 645
Sushan Darjee (Hingmang) vs. State of Sikkim
4. Having given due consideration to the submissions
advanced before us, although it is alleged that the relationship
was a romantic one and the act alleged to be sexual assault was
in fact consensual sex, these issues would be tested when the
Appeal is heard. For now we are not inclined to either suspend
the sentence or enlarge the Petitioner on Bail.
5. I.A. No.01 of 2024 is accordingly rejected and
disposed of.
6. The observations made hereinabove are confined to
the purposes of the instant Bail application and shall in no manner
be construed as findings on the merits of the Appeal.
7. A copy of this Order be forwarded to the Learned Trial
Court for information.
8. Copy of this Order also be made over to the Petitioner
through the Jail Superintendent, Central Prison, Rongyek and to
the Jail Authority at the Central Prison, Rongyek, for information.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
28-10-2024 28-10-2024
Approved for reporting : Yes
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