Page No.# 1/5 GAHC010187672025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/948/2025 MD SAMADUL ALI S/O. MD. BABEL ALI @ BABAR VILL.- PUBPAR JATIA BHANGARA P/S. BAIHATA CHARALI DIST. KAMRUP ASSAM. VERSUS THE STATE OF ASSAM REP BY THE PP ASSAM 2:PRANITA DEKA W/O. ATUL DEKA R/O. VILL.- BIHDIA P/S. BAIHATA CHARIALI DIST. KAMRUP ASSAM. ------------ Advocate for : MS N SULTANA Advocate for : PP ASSAM appearing for THE STATE OF ASSAM Page No.# 2/5 BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 09.12.2025 Heard learned counsel Ms. S. K. Nargis for the applicant, Md Samadul Ali who has filed this application under Section 430 of the BNSS, 2023 with prayer for suspension of sentence and with prayer for bail during the pendency of this appeal. 2. Heard learned counsel Mr. S. Choudhury appearing for the informant/respondent No. 2. Also heard learned Additional Public Prosecutor, Mr. B. Sarma for the respondent State. 3. Learned Additional Public Prosecutor has raised serious objection stating that the applicant is not entitled to bail as he has been convicted under a serious offence. 4. It is submitted that the argument on behalf of the learned counsel for the applicant that the victim eloped with the petitioner on her own volition cannot be accepted because consent of a minor is not a consent at all. The applicant is held guilty of offence and is sentenced to undergo rigorous imprisonment for 7 years with payment of fine of Rs. 10,000/- under Section 4 of the POCSO Act. 5. On the contrary, the learned counsel for the applicant has submitted that the victim is married to another person and after her marriage, the victim has come before this Court and she has revealed the truth that she has eloped with the applicant on her own volition. The victim's mother has also stated as PW-2 that the victim eloped with the applicant on her own volition as they had a love Page No.# 3/5 affair. Due to the stringent provisions of the POCSO Act, the applicant was convicted under the POCSO Act. It is further submitted that during trial, the applicant always co-operated with the trial despite the fact that he was on bail. It is further submitted that the applicant will face the consequences of the final decision of this case. 6. It is further submitted that the applicant has not violated any bail conditions during trial. It is submitted that for a crime not committed by him, the applicant has been behind bars for more than 8 months. It is further submitted that this is a good case of acquittal. It is submitted that on careful scrutiny of evidence, there is every possibility that the applicant may be acquitted after the conclusion of the appeal as this case is based on a love relationship between the applicant and the victim. 7. Learned Additional Public Prosecutor has submitted that there is no infirmity in the judgment and the consent of the minor is no consent at all. 8. It is submitted that the learned Trial Court has elaborately discussed the evidence which led to the conviction of the applicant. 9. Learned Additional Public Prosecutor has prayed to dismiss the application of prayer for suspension of sentence and the prayer for bail. 10. Here, in this case, the learned counsel for the respondent No. 2 has no objection if the order of conviction and sentence is suspended and if the applicant is enlarged on bail. 11. The merits of this case are not brought to the fore as appeal is pending. 12. I have considered the submissions at the Bar with circumspection. It is true that the victim is a minor and her consent is no consent at all. Page No.# 4/5 13. I have relied on the decision of the Hon'ble Supreme Court in Aasif @ Pasha Vs. The State of U.P. and Ors, reported in 2025 Supreme (SC) 1168, wherein it has been observed that:- “12. Way back in 1999, this Court in " Bhagwan Rama Shinde Gosai and Others v. State of Gujarat" reported in (1999) 4 SCC 421 stated that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence should be considered by the Appellate Court liberally unless there are exceptional circumstances. 17. When the Appellate Court finds that due to practical reasons, such appeals cannot be disposed of expeditiously, the Appellate Court must show special concern in the matter of suspending the sentence so as to make the appeal right, meaningful and effective. At the same time, the appellate courts can impose similar conditions when appeal is granted. 18. In" Omprakash Sahni vs. Jai Shankar Chaudhary and Anr. (2023) 6 SCC 123, this Court while considering the scope of 389 CrPC in cases of life imprisonment held as under:- (5) The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused- respondents were on bail.” 14. In the light of the decision of the Hon'ble Supreme Court in Aasif @ Pasha's case (Supra), the operation of the order of conviction and sentence dated 10.07.2025 is stayed until further orders. 15. Meanwhile, the applicant/appellant is enlarged on bail of Rs. 50,000/- with Page No.# 5/5 a suitable surety of like amount to the satisfaction of the learned Trial Court who may impose conditions for bail which the Court deems fit and appropriate. 16. In terms of the above observation, this application stands disposed of. JUDGE Comparing Assistant