Page No.# 1/5 GAHC010123182024 2025:GAU-AS:14337 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/578/2024 JAMALUDDIN @ MD. JAMALUDDIN S/O HAREJ ALI , RESIDENT OF VILLAGE AMOLAPAM, TEZPUR, DIST SONITPUR, ASSAM, 784208 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY PP ASSAM 2:ABDUL KALAM S/O LATE NEKBOR ALI RESIDENT OF VILLAGE AMOLAPAM TEZPUR DIST SONITPUR ASSAM 78420 Advocate for the Petitioner : MR. S C BISWAS, MS. K L R YANTHAN,MR. S C BISWAS,MR. P KATAKI Advocate for the Respondent : PP, ASSAM, MR. SURAJIT DAS, AMICUS CURIAE(R-2) Page No.# 2/5 B E F O R E HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 27.10.2025 This I.A. has been preferred seeking suspension of the sentence imposed by the learned Trial Court vide Judgment & Order dated 19.04.2021 passed in Special POCSO Case No. 53/2018 convicting the applicant under Section 342 of IPC and Section 6 of the POCSO Act and sentencing him to undergo Rigorous Imprisonment for 1 month and 10 years respectively alongwith fine. 2. Mr. P. Katakai, learned counsel for the applicant submits that there are glaring errors in the impugned Judgment in as much as the age of the victim could not be established properly by the prosecution and the whole medical evidence was wrongfully discarded by the learned Trial Court, which if relied upon, would have taken the case out of the ambit of the POCSO Act. It is further submitted that the evidence of the PW Nos. 2 and 3 would go to show that they had made no such statements before the I.O. previously. 3. The brother of the victim who was claimed to be an eye witness was also not examined and further, no injury was found on the victim. In the meantime, the accused had already spent 4 and a half years out of a sentence of 10 years Rigorous Imprisonment. 4. The learned counsel for the petitioner has relied upon the decision of the Hon’ble Supreme Court in Kiran Kumar Vs. State of M.P., reported in (2001) 9 SCC 211, wherein it has been held that the normal rule is that when the appeal of a person convicted and sentenced is pending, the sentence passed on him Page No.# 3/5 should be suspended unless any exceptional reason existing therein requires the denial of the same. 5. Reference was made to Bhagwan Rama Shinde Gosai Vs. State of Gujarat, reported in (1999) 4 SCC 421, wherein the Hon’ble Supreme Court held that when a person is sentenced to a short-term imprisonment, the normal rule is that pending disposal of the appeal, the sentence should be suspended and rejection is only by way of exception. 6. In Supreme Court Legal Aid Committee representing Undertrial Prisoners Vs. Union of India & Ors, reported in (1994) 6 SCC 731, it was held as follows: “15. We, therefore, direct as under: (i) Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount. (ii) Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs 50,000 Page No.# 4/5 with two sureties for like amount. 7. In Narcotic Control Bureau Vs. Lakhwinder Singh, 2025 INSC 190, the Hon’ble Supreme Court held that the above Judgment does not take away the power of the Court to grant regular bail even if the period undergone by a prisoner is less than what is provided in the said judgment. It was further held that 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. 8. As already stated, the petitioner/applicant has already spent 4 and a half years behind bars out of the total sentence of 10 years and in view of the submissions of the learned counsel for the applicant with regard to the merits of the appeal, and in view of the law laid down by the Hon’ble Apex Court has adverted to above, I am of the considered opinion that this is a fit case where the execution of the remaining part of the sentence imposed by the impugned Judgment may be suspended. It is accordingly so ordered. 10. Further, during the pendency of the connected criminal appeal, the petitioner is allowed to go on bail of Rs. 50,000/- with one surety of like amount subject to the satisfaction of the learned Additional Session Judge, Sonitpur in Special POCSO Case No. 53/2018 with a condition that, in the event of dismissal of the connected Criminal Appeal No. 40 of 2022, the petitioner shall surrender before the Trial Court to serve out the remaining part of his sentence imposed by the impugned judgment or as may be directed by the Appellate Court. Page No.# 5/5 11. The Interlocutory Application is accordingly disposed of. JUDGE Comparing Assistant