Sikkim High Court
Sandeep Gajmer @ Sandeep Gazmer vs State Of Sikkim on 30 October, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
DATED : 30th 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.30 of 2024
Appellant/Petitioner : Sandeep Gajmer @
Sandeep Gazmer
versus
Respondent : State of Sikkim
Application under Sections 389(1) and (2)
of the Code of Criminal Procedure, 1973
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Appearance
Mr. N. Rai, Senior Advocate with Mr. Yozan Rai, Advocate for the
Appellant/Petitioner.
Mr. Thinlay Dorjee Bhutia, Public Prosecutor with Mr. Sujan
Sunwar, Assistant Government Advocate for the State-
Respondent.
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ORDER
Meenakshi Madan Rai, J.
1. I.A. No.01 of 2024 is an application under Section
389(1) and (2) of the Code of Criminal Procedure, 1973
(hereinafter, "Cr.P.C.") filed by the Petitioner/Appellant/Convict
seeking suspension of the sentence imposed on him by the
Learned Trial Court and his enlargement on Bail from this Court.
The Prosecution has filed its response to the Bail Application.
2. The Petitioner was convicted vide the impugned
Judgment, dated 21-08-2024 and Order on Sentence dated 22-
08-2024 by the Court of the Learned Special Judge (POCSO Act,
2012), under Section 376(1) of the Indian Penal Code, 1860, in
ST (POCSO) Case No.14 of 2022 (State of Sikkim vs. Sandeep
Gajmer alias Sandeep Gazmer).
3. Learned Senior Counsel for the Petitioner submits that
the Petitioner had been living with his elderly parents, both of
Sandeep Gajmer @ Sandeep Gazmer vs. State of Sikkim
whom are indisposed presently due to various ailments. That, his
elder brother is married and living with his own family separately.
The Petitioner's wife is an asthma patient and also suffering from
anxiety disorder. Hence, there is none to take care of his family.
That, the conviction was based on the sole testimony of the
victim, which the medical evidence did not support as the Doctor
who examined the victim was not produced by the Prosecution as
a witness. That, the documents of medical examination were thus
proved by another Doctor and not by the examining Doctors.
That, in view of the grounds put forth the Petitioner has a prima
facie good case of succeeding in the Appeal and he will abide by
all conditions imposed by the Court and will not abscond if
enlarged on Bail. Hence, the Petition be considered and allowed.
4. Learned Public Prosecutor objects to the Petition on
grounds that in fact the Petitioner by his own averment in the
Petition admitted that he has an elder brother who can thus step
in and take care of their ailing parents, apart from which the
arrest memo indicates that the Petitioner while on Bail had failed
to appear when required hence, the conduct of the Petitioner
being unreliable ought not to be enlarged on Bail having been
convicted of a heinous offence. That in this context, the Supreme
Court in Preet Pal Singh vs. State of Uttar Pradesh and Another1 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
(2020) 8 SCC 645
Sandeep Gajmer @ Sandeep Gazmer vs. State of Sikkim
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.
5. Having heard the Learned Counsel for the parties and
considering the other grounds advanced before this Court as
elucidated supra, we are not inclined to grant the Bail.
6. I.A. No.01 of 2024 is accordingly rejected and
disposed of.
7. 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.
8. A copy of this Order be forwarded to the Learned Trial
Court for information.
9. 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
30-10-2024 30-10-2024
Approved for reporting : Yes
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