Page No.# 1/10 GAHC010182582024 2025:GAU-AS:3601 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/166/2025 AKHIRUL ISLAM S/O MD. LEHAZUR RAHMAN @ NEHAJUR RAHMAN, VILL.- SANTOSHPUR, P.S- CHAPAR, DIST.- DHUBRI, ASSAM, PIN- 783348. VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:SAJEDA KHATUN D/O SAHAR ALI VILL.- SANTOSHPUR P.S.- CHAPAR DIST.- DHUBRI ASSAM PIN- 783348 Advocate for the Petitioner : MR H R A CHOUDHURY, MR. A AHMED,MR. I U CHOWDHURY Advocate for the Respondent : PP, ASSAM, Page No.# 2/10 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER 7.03.2025 Heard Mr. A. Ahmed, learned counsel for the applicant. Also heard Ms. N. Das, learned Additional Public Prosecutor for the State respondent No.1 and Mr. M. Ahmed, learned counsel for the respondent No.2. 2. This application is filed under Section 389 of the Code of Criminal Procedure, 1973, praying for the suspension of the sentence passed in Criminal Appeal Case No. 253/2022, vide the impugned Judgment and Order dated 30.08.2022, by the learned Special Judge, Bilasipara, Dhubri, in Special (POCSO) Case No. 06/2020, whereby the accused/appellant/present applicant was convicted under Section 4 of the POCSO Act and sentenced to rigorous imprisonment for 10 years along with a fine of Rs. 10,000/-, in default of payment, to undergo rigorous imprisonment for an another three months and also to suffer simple imprisonment for six months for the offence under Section 448 of the IPC, as well as to release the applicant on bail during the pendency of the connected Criminal Appeal Case No. 253/2022. 3. Mr. Ahmed, learned counsel for the applicant, has submitted that this is the second interlocutory application filed by the applicant, as the earlier interlocutory application, numbered as I.A. (Crl) Case No. 615/2022, was rejected vide order dated 19.07.2023, with a direction to hear the connected Criminal Appeal Case No. 253/2022 on the next date fixed. However, he submits that the main appeal has not yet been heard. Therefore, he submits that if the hearing does not take place within one year, the applicant may be released on Page No.# 3/10 bail till the pendency of the main appeal. 4. In this regard, he relies on the decision rendered by a Co-ordinate Bench of this Court in Habibur Rahman vs. The State of Assam [Misc. Case No. 195/2001, dated 15.10.2001], wherein, in paragraph 3 of the said judgment, it was held that: “3. However, the main plank of Mr. Mazumdar's argument is the delay in disposal of the appeal. Which according to him, entities the accused-appellants to be released on bail in view of Article 21 of the Constitution. Mr. Mazumdar points out that the instant appeal was admitted as far back as 18.8.2000, more than a year ago; and the paper book has not been prepared as yet. In Anurag Baitha's case MANU/BH/0028/1987 : 1987 Cri.L.J. 2037, the accused-Appellant was convicted under Sections 302/34/333 IPC read with Section 27 of the Arms Act and was sentenced to life imprisonment on the capital charge. In appeal, the High Court refused bail to him. More than a year thereafter he renewed his prayer for bail. Noticing the two competing principles, namely, one which is applied when the prayed for bail is refused on merits; and the other arising on account of the long Incarceration of the accused and the inevitable delay in hearing of his appeal, the matter was referred to a larger bench. The Full Bench held: Article 21 does not stop short at the end of the trial but continues to extend its protective shield even after the post-conviction stage. Equally it has to be borne in mind that in the event of later acquittal by the appellate court the long incarceration in jail during the pendency of the appeals is inherently incompenstable in terms of money. Even assuming that Section 389 does not envisage the questions of delay, the applicability of Article 21 and the right of speedy trial and Page No.# 4/10 expeditious hearing of substantive appeals cannot be possibly excluded from this area. Barring exceptions the reasonable period of time for the hearing of substantive appeals on capital charges pending in the High Court must be broadly one year. Once this is so fixed, a convict would become entitled to claim bail on the ground of the delay in hearing the appeal itself unless there are cogent grounds for acting otherwise. To the following horrendous capital crimes (categorization is not exhaustive) which are shocking to the conscience of society, the general rule stated above shall not apply: (a) Multiple and mass murders on caste and tribal considerations.- (b) Dacoity coupled with murder. (c) Rape with murder. (d) Bride Burning. (e) Terrorist crime. (f) Daylight bank robbery; abduction for ransom followed by murder; indiscriminate use of firearms and bombs in murders disturbing public order. 5. Citing the above-referred judgment, Mr. Ahmed, learned counsel for the applicant, submits that in the instant case, the accused/applicant has already been in custody for three years. The connected appeal was filed in 2022, and this Court rejected the applicant’s plea on 19.07.2023, which was more than one year and six months ago. Although the appeal was fixed for hearing, it has not yet been heard. Therefore, he submits that, considering this delay, the applicant’s prayer for suspension of sentence along with bail till the disposal of the appeal may be considered at this stage. Furthermore, he submits that the alleged victim has subsequently filed another FIR against a different person regarding the sexual assault. Page No.# 5/10 6. Mr. Ahmed, learned counsel for the petitioner has further submitted that the accused/applicant has undergone substantial part of his sentence and considering this aspect, he may be released on bail. He relies on the decision passed by the Hon’ble Supreme Court in Narcotic Control Bureau vs. Lakhwinder Singh [Criminal Appeal No. 475/2025, arising out of SLP (Crl) No. 5215/2021], specifically relying on paragraphs 6 and 7 of the said judgment, which read as follows: “6. In the case of fixed-term sentences, if the Courts start adopting a rigid approach, in a large number of cases, till the appeal reaches the stage of the final hearing, the accused would undergo the entire sentence. This will be a violation of the rights of the accused under Article 21 of the Constitution. Moreover, it will defeat the right of appeal. 7. At this stage, the learned ASG appearing for the petitioner submitted that the power of the Court was constrained by Section 37 of the NDPS Act, which is applicable even at the stage of an appeal. He relies upon a decision of this Court in the case of Dadu vs. State of Maharashtra2. There is no dispute about the fact that the Appellate Court is bound by constraints of Section 37 of the NDPS Act while considering the prayer for the grant of bail during the pendency of an appeal. However, if, in the facts of the case, an accused has undergone a substantial part of the substantive sentence and, considering the pendency of criminal appeals, his appeal is not likely to be heard before the accused undergoes the entire sentence, the Appellate Court can exercise the power of 2 (2000) 8 SCC 437 releasing the accused on bail pending the appeal. If the relief of bail is denied in such a factual situation only on the grounds of Section 37 of the NDPS Act, it will amount to the violation of the rights of the accused under Article 21 of the Constitution of India.” 7. He also submits that there may not be any dispute regarding the age of the victim during the trial, and the birth certificate was not exhibited in the instant case. Thus, relying on the judgment passed by this Court in Criminal Appeal No. 64/2020 (Manirul Islam vs. State of Assam), decided on 09.04.2021, he submits that even though the age was not disputed at trial, the Page No.# 6/10 prosecution is still required to prove it in the manner prescribed by law. In this regard, he emphasizes paragraph 32 of the said judgment, which reads as follows: 32. In the present case, the prosecution had made an attempt to prove the document Ext-A through PW-1 and it appears that the defense side did not raise any objection when the document was marked as an exhibit. Therefore, in so far the admissibility of Ext-A is concerned, the said question must be answered in favour of the prosecution. That, however, would not automatically absolve the prosecution from the requirement in law to establish the truthfulness of its contents. The PW-1 being the informant in this case, had nothing to do with the birth of the child or the Department of Health Services, Assam. Therefore, in our opinion, he was not competent to prove the contents of Ext.-A. Viewed from that perspective, the PW-1 could not have vouched for the truthfulness of the contents of Ext-A. Therefore, in the light of the doctor's opinion (PW-5), which is to the effect that the age of the victim was between 18 years to 20 years, we are of the view that the prosecution has failed to show that the victim was below 18 (eighteen) years on the date of occurrence. 8. Since the victim’s age was not proven beyond a reasonable doubt, the applicant’s conviction under Section 4 of the POCSO Act is not tenable. The impugned conviction and sentence passed by the learned Trial Court is unsustainable in law. The Trial Court erred in appreciating the evidence on record and based its judgment on presumptions, inferences, and assumptions. Therefore, the interference of this Court is warranted. 9. He also submitted that there are sufficient grounds for succeeding the present criminal appeal and accordingly, he prays to suspend the conviction and allow the accused/applicant to remain on previous bail till disposal of the said criminal appeal. He further submits that there is no chance of absconding, if the same is allowed. 10. On the other hand, Ms. Das, the learned Additional Public Prosecutor, has Page No.# 7/10 submitted that, with regard to the material facts of the case, the evidence of the victim is corroborated by P.W. Nos. 3 and 4, who were eyewitnesses to the incident. Furthermore, there is no evidence on record to suggest that the victim and P.W. Nos. 3 and 4 had any enmity with the accused/applicant. Thus, it is evident that the accused/applicant trespassed into the victim's house and committed rape on her. She further submitted that the accused/applicant has not completed three years of custody and, therefore, raised an objection to the prayer made by the learned counsel for the applicant. 11. In this context, Mr. Ahmed, the learned counsel for the applicant, has submitted that the applicant has completed three years of custody. The applicant was in custody for three months and 10 days during the investigation and he is behind bar for more than 2 years, 6 months, and 22 days, from the date of his conviction. 12. Mr. Ahmed, the learned counsel for respondent No. 2, has submitted that the applicant is primarily arguing on the grounds of prolonged incarceration and the delay in hearing the connected appeal. In this regard, he submits that the Appellate Court should not re-appreciate the evidence at the stage of hearing a petition under Section 389 of Cr. P.C. and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach. In support of this argument, he relies on the judgment passed by the Hon’ble Supreme Court in Omprakash Sahni vs. Jai Shankar Chaudhary, reported in 2023 LiveLaw (SC) 389. “33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above said question is to be in the Page No.# 8/10 affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Appellate Court should not re-appreciate the evidence at the stage of Section 389 of the Cr.P.C and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach.” 13. He further submits that the mere fact of incarceration for a particular period, in a case where life imprisonment has been imposed, cannot be a ground for invoking the power under Section 389 of the Cr.P.C. without considering relevant factors. In this regard, he relies on the decision passed by the Hon’ble Supreme Court in Shivani vs. State of U.P. & Anr., reported in 2024 0 Supreme (SC) 386. 14. By referring to the aforementioned judgments, Mr. Ahmed, the learned counsel for respondent No. 2, has submitted that since the applicant has undergone only three years of incarceration, the bail prayer of the applicant may not be considered at this stage. 15. Considering the submissions made by the learned counsels for both sides, I have perused the case record along with the annexures filed with the petition. From the record, it is revealed that the applicant’s earlier bail application, filed under Section 389 of Cr. P.C., was rejected by this Court vide order dated 19.07.2023, wherein the details of the case was discussed, and accordingly, the prayer for bail was rejected. In the said order, it was also observed that both Page No.# 9/10 parties would proceed with the hearing on the next date fixed. However, it is an admitted fact that, to date, the hearing of the connected appeal has not been initiated, even after the lapse of 1 year and 8 months from the order dated 19.07.2023. 16. In the present petition, the primary emphasis is on the point of incarceration, as the accused/applicant has been in custody for three years, including the period of detention during the investigation. The learned counsel for the applicant has relied on the case of Habibur Rahman (Supra), where this Court observed that due to the long incarceration of the accused/applicant and the inevitable delay in the hearing of the appeal, the matter was referred to a larger Bench. The Full Bench expressed the view that “Article 21 does not stop short at the end of the trial but continues to extend its protective shield even at the post-conviction stage. Equally, it has to be borne in mind that in the event of a later acquittal by the Appellate Court, the long incarceration in jail during the pendency of the appeal is inherently incompensable in terms of money.” 17. Furthermore, it is a settled principle of law that in cases where life imprisonment has been imposed, long incarceration alone cannot be a ground for invoking the power under Section 389 of Cr. P.C. without considering other relevant factors. However, in the instant case, the conviction was for a specific period, i.e., 10 years, and it cannot be denied that the petitioner has already undergone substantial incarceration, amounting to three years. Despite the order passed by this Court on 19.07.2023, the appeal has not been heard due to various reasons. The accused/applicant has been behind bar for the last three years, including the period of judicial custody. 18. It is also a settled principle of law that, while dealing with a petition under Section 389 of Cr. P.C., the Court should not re-appreciate the evidence or Page No.# 10/10 rectify the prosecution’s loopholes but should consider that there is something which is palpable in the face of record for deciding the application. While passing the earlier order rejecting the bail prayer of the present applicant, the merits of the case was discussed, and it was observed that the applicant could not demonstrate any error or mistake committed by the learned Trial Court that is apparent on the face of the record. However, the present petition has been filed solely on the ground of the applicant’s prolonged incarceration, which now amounts to nearly three years, without pressing other merits of the case. 19. Accordingly, it cannot be conclusively held that there are grounds for succeeding of the connected appeal, but it also cannot be denied that the accused/applicant has already undergone a substantial part of his sentence. Moreover, this is not a case of life imprisonment but rather a conviction for a specific period. In view of the above, and considering the observations of the Hon’ble Supreme Court as well as this Court, I find it appropriate to allow this interlocutory application. Accordingly, the operation of impugned Judgment and Order dated 30.08.2022, passed by the learned Special Judge, Bilasipara, Dhubri, in Special (POCSO) Case No. 06/2020, stands stayed/suspended till disposal of the connected appeal being Criminal Appeal Case No. 253/2022. 20. Further, the applicant is hereby allowed to go on bail on his executing a bond of Rs. 30,000/- (Rupees thirty thousand) only with one surety of like amount to the satisfaction of the learned Special Judge, Bilasipara, Dhubri. 21. The interlocutory application stands disposed of in terms above. JUDGE Comparing Assistant