Arvind and another vs. State of HP Cr. Appeal No. 430 of 2025 Reserved on: 22.9.2025 18.11.2025 Present: Mr Dibender Ghosh, Advocate, for the appellants. Mr Jitender Sharma, Additional Advocate General, for the respondent/State. Cr. MP No. 3323 of 2025 The present application has been 昀椀led by the appellant/applicant Vishal for suspending the sentence awarded by the learned Additional Sessions Judge, Fast Track, Special Court (Rape/POCSO), Kinnaur at Rampur Bushahr, District Shimla, H.P. It has been asserted that the applicants have a prima facie arguable case in their favour. The very purpose of 昀椀ling the appeal would be frustrated in case the sentence awarded by the learned Trial Court is not suspended. Hence the application. 2. The application is opposed by 昀椀ling a separate reply making preliminary submissions regarding the lack of maintainability. It was asserted that the prosecution had proved its case beyond a reasonable doubt. The learned Trial Court sentenced the applicants/appellants to undergo simple imprisonment for one year, pay a 昀椀ne of ₹2,000/- for the commission of an o昀昀ence punishable under Section 12 of the Protection of Children from Sexual O昀昀ences Act (POCSO) and to undergo further imprisonment for 15 days in default of payment of 昀椀ne. The applicant does not deserve any leniency from the Court. The applicant does not have any arguable case in his favour. Hence, it was prayed that the application be dismissed. 3. Rejoinder denying the contents of the reply and a昀케rming those of the application was 昀椀led. 4. Heard. 5. The maximum sentence imposed by the learned Trial Court upon the applicant Vishal is one year, which is less than three years. Being a 昀椀xed-term sentence of less than three years, the applicant is entitled to its suspension as a matter of right. Therefore, the present application is allowed, and the order dated 31.7.2025 is made absolute till the disposal of the appeal. 6. Application stands disposed of. Cr. MP No. 3255 of 2025 7. Applicant Arvind has 昀椀led the present application seeking suspension of the sentence awarded by the learned Trial Court. It has been asserted that the applicant has a prima facie case in his favour. The purpose of 昀椀ling an appeal would be frustrated in case the sentence awarded by the learned Trial Court is not suspended during the pendency of the appeal. Hence, it was prayed that the present application be allowed. 8. The application was opposed by 昀椀ling a reply making preliminary submissions regarding the lack of maintainability. It was asserted that the applicant committed house trespass after having made preparations to assault the victim in the kitchen. He outraged the modesty of the victim. He was sentenced by the learned Trial Court to undergo simple imprisonment for 昀椀ve years and to pay a 昀椀ne of ₹10,000/- for the commission of an o昀昀ence punishable under Section 8 of the POCSO Act. He was sentenced to undergo simple imprisonment for three years, pay a 昀椀ne of ₹5,000/- and, in default of payment of 昀椀ne, to further undergo simple imprisonment for one month for the commission of an o昀昀ence punishable under Section 452 of IPC. He was sentenced to undergo simple imprisonment for one year, pay a 昀椀ne of ₹2,000/- and, in default of payment of 昀椀ne to undergo further simple imprisonment for 15 days for the commission of an o昀昀ence punishable under Section 12 of the POCSO Act. The o昀昀ences are heinous and a昀昀ect society at large. The applicant was involved in multiple FIRs. He does not deserve to be released on bail because of his criminal antecedents. Hence, it was prayed that the present application be dismissed. 9. I have heard Mr Debinder Ghosh, learned counsel for the applicants and Mr Jitender K. Sharma, learned Additional Advocate General, for the respondent- State. 10. Mr Debinder Ghosh, learned counsel for the applicants, submitted that the applicant-Arvind is innocent and he was falsely implicated. The appeal is not likely to be heard soon, and the very purpose of 昀椀ling the appeal would be frustrated in case the sentence awarded by the learned Trial Court is not suspended. Hence, he prayed that the present application be allowed and the sentence imposed by the learned Trial Court be suspended during the pendency of the appeal. 11. Mr Jitender Sharma, learned Additional Advocate General for the respondent-State, submitted that the applicant was involved in the commission of a heinous o昀昀ence and he would indulge in the commission of a similar crime in case of his release on bail. Hence, he prayed that the present application be dismissed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. It was submitted that the applicant was on bail during the trial and he did not misuse the liberty extended to him; therefore, he is entitled to the bail as a matter of right. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in State of Haryana v. Hasmat, (2004) 6 SCC 175: 2004 SCC (Cri) 1757: 2004 SCC OnLine SC 741 that the mere fact that the accused was on bail during the trial and he had not misused his liberty is no reason to suspend the sentence. It was observed at page 177: “8. The learned Sessions Judge, Gurgaon, by a judgment dated 24-10-2001, had found the accused-respondent guilty. Criminal Appeal No. 100- DB of 2002 was 昀椀led by the respondent. The fact that during the pendency of the appeal, the accused-respondent was on parole goes to show that initially, the accused-respondent was not given the bene昀椀t of suspension of execution of the sentence. The mere fact that during the period of parole, the accused has not misused the liberties does not per se warrant suspension of execution of the sentence and grant of bail. What was really necessary to be considered by the High Court was whether reasons existed to suspend the execution of the sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view.” (Emphasis supplied) 14. It was submitted that the learned Trial Court had sentenced the accused to undergo a 昀椀xed term sentence, and such a sentence should be suspended as a matter of right. This submission is not acceptable. This Court dealt with a similar argument in CrMP no. 4659 of 2023 titled Raju vs State, decided on 27.06.2024 and held that the 昀椀xed term sentence up to three years can be suspended as a matter of right, but the accused has to show a fair chance of acquittal for serious o昀昀ences. It was observed: “13. Therefore, in the case of a short-term sentence of three years provided in the statute, bail is the rule and jail is the exception. However, in serious o昀昀ences, the Court has to consider the circumstances of the case and the likelihood of early disposal of the case. Where the case is not taken up expeditiously and the person has spent more than half of the sentence, the person is entitled to be released on bail.” 15. This order was assailed before the Hon’ble Supreme Court of India in Special Leave to Appeal (Crl.) No.10110/2024 titled Raju vs State decided on 05.08.2024. The Hon’ble Supreme Court was not inclined to admit the SLP, and it was dismissed as withdrawn. It was observed: “1. After arguing the case for some time and on our expressing reservations in entertaining the Special Leave Petition, learned counsel appearing for the petitioner seeks permission to withdraw the said Petition. 2. The permission as sought is granted. 3. The Special Leave Petition is, accordingly, dismissed as withdrawn.” 16. It was held in Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6 SCC 123: 2023 SCC OnLine SC 551that the Court should consider the gravity of the o昀昀ence while considering an application for bail under Section 389 of Cr. P.C. It was observed: “21. Suspension conveys postponement or temporarily prevents a state of a昀昀airs from continuing. According to Black's Law Dictionary (Seventh Edition), the word “suspend” means, inter alia, to interrupt; postpone; or defer. Black's Law Dictionary (Seventh Edition) describes the word “suspension” to mean, inter alia, an act of temporarily delaying, interrupting or terminating something. Attributing the same meaning to the word “suspend” as pointed out above, the New Oxford Dictionary of English (1998 Edition) describes suspending as temporarily preventing from continuing or being enforced or given e昀昀ect or deferring or delay an action, event or judgment. 22. Thus, when we speak of suspension of sentence after conviction, the idea is to defer or postpone the execution of the sentence. The purpose of postponement of sentence cannot be achieved by detaining the convict in jail; hence, as a natural consequence of postponement of execution, the convict may be enlarged on bail till further orders. 23. The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent till he is held guilty by a court of competent jurisdiction. Once the accused is found guilty, the presumption of innocence is erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further forti昀椀ed. 24. From a perusal of Section 389 CrPC, it is evident that save and except the matter falling under the category of sub-section (3) neither any speci昀椀c principle of law is laid down nor any criteria has been 昀椀xed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of competent jurisdiction, and in the aforesaid background, there happens to be a 昀椀ne distinction between the prayer for bail at the pre-conviction as well as the post-conviction stage viz. Sections 437, 438, 439 and 389(1) CrPC.” 17. It was further held that while deciding the application for suspension of the sentence, the Court should consider whether the applicant has a fair chance of acquittal. It was observed: 33. Bearing in mind the aforementioned principles of law, the endeavour on the part of the court, therefore, should be to see 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 abovesaid question is to be in the a昀케rmative, 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 takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has a fair chance 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, based on which the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach.” 18. A similar view was taken in Jamnalal v. State of Rajasthan, 2025 SCC OnLine SC 1641, wherein it was observed: “10. One would have expected the High Court hearing an application under Section 389 of the Cr. P.C.for suspension of sentence to examine whether, prima facie, there was anything palpable on the record to indicate if the accused had a fair chance of overturning the conviction. Xxxx 12. Taking into account the fact that the High Court has not adverted to any of the relevant factors for considering the case for suspension under Section 389 and keeping in mind the antecedents, we are of the opinion that the High Court was not justi昀椀ed in suspending the sentence.” 19. This position was reiterated in Dashrath Singh v. State of M.P., 2025 SCC OnLine SC 1967, wherein it was observed: “It would be proper and appropriate for the High Courts to be mindful of the law laid down in this context by this Court in its decisions, such as “Angana v. State of Rajasthan (2009) 3 SCC 767” and the more recent “Omprakash Sahni v. Jai Shankar Chaudhary etc. (2023) 6 SCC 123” (particularly, paragraph 33 thereof). 20. It was held in (NCT of Delhi) v. Lokesh Chadha, (2021) 5 SCC 724: (2021) 2 SCC (Cri) 704: 2021 SCC OnLine SC 178, that while granting bail under Section 439 Cr.P.C., the Courts are liberal and apply the principle that bail is a rule and jail is an exception; however, in case of post- conviction bail, there is a 昀椀nding of guilt and the question of presumption of innocence does not arise. It was observed: “10. At this stage, we will refer to the decision of a two-judge Bench of this Court in Preet Pal Singh v. State of U.P. [Preet Pal Singh v. State of U.P., (2020) 8 SCC 645: (2020) 3 SCC (Cri) 897] where Indira Banerjee, J., speaking for the Court, observed as follows: (SCC p. 655, para 35) “35. There is a di昀昀erence between the grant of bail under Section 439 CrPC in case of pre- trial arrest and suspension of sentence under Section 389 CrPC, and the grant of bail, post-conviction. 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 principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] However, in case of post- conviction bail, by suspension of operation of the sentence, there is a 昀椀nding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception, once there is a conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong, compelling reasons for the grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC.” 21. This position was reiterated in Shivani Tyagi v. State of U.P., 2024 SCC OnLine SC 842, wherein it was observed: “7. Even on a cursory perusal, the High Court's order shows complete non-application of mind. Though a detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a Court dealing with the bail application should be satis昀椀ed as to whether there is a prima facie case, but an exhaustive exploration of the merits of the case is not necessary. The Court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. 8. There is a need to indicate in the order the reasons for prima facie concluding why bail was being granted, particularly where an accused was charged with having committed a serious o昀昀ence. It is necessary for the Courts dealing with applications for bail to consider, among other circumstances, the following factors before granting bail, they are: 1. The nature of the accusation and the severity of punishment in case of conviction, and the nature of supporting evidence; 2. Reasonable apprehension of tampering with the witness or apprehension of a threat to the complainant; 3. Prima facie satisfaction of the Court in support of the charge. Any order dehors of such reasons su昀昀ers from non- application of mind, as was noted by this Court in Rama Govind Upadhyay. Sudarshan Singh (2002) 3 SCC 598, Puran v. Rambilas(2001) 6 SCC 33 and in Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528.” 22. It was further held that the suspension is to be granted by recording the reasons, and it is impermissible to release the accused simply because the appeal was not likely to be heard soon. It was observed: “9. We have already referred to the mandate under Section 389Cr. P.C. that the order passed invoking the said provision should re昀氀ect the reason for concluding that the convicts are entitled to get their sentence suspended and consequential release on bail. In the decision in State of Haryana v. Hasmat (2019) 5 SCC 373: 2019 INSC 377, this Court held that in an appeal against conviction involving a serious o昀昀ence like murder punishable under Section 302, IPC, the prayer for suspension of sentence and grant of bail should be considered with reference to the relevant factors mentioned thereunder, though not exhaustively. On its perusal, we are of the opinion that factors like the nature of the o昀昀ence held to have been committed, the manner of their commission, the gravity of the o昀昀ence, and also the desirability of releasing the convict on bail are to be considered objectively and such consideration should re昀氀ect in the consequential order passed under Section 389, Cr. P.C. It is also relevant to state that the mere factum of su昀昀erance of incarceration for a particular period, in a case where life imprisonment is imposed, cannot be a reason for invocation of power under Section 389Cr. P.C. without referring to the relevant factors. We say so because there cannot be any doubt with respect to the position that disposal of appeals against conviction (especially in cases where life imprisonment is imposed for serious o昀昀ences), within a short span of time, may not be possible in view of the number of pending cases. In such circumstances, if it is said that disregarding the other relevant factors and parameters for the exercise of power under Section 389, Cr. P.C., the likelihood of delay and incarceration for a particular period can be taken as a ground for suspension of sentence and to enlarge a convict on bail, then, in almost every such case, favourable invocation of said power would become inevitable. That certainly cannot be the legislative intention, as can be seen from the phraseology in Section 389Cr. P.C. Such an interpretation would also go against public interest and social security. In such cases, giving preference over appeals where the sentence is suspended, in the matter of hearing or adopting such other methods, making an early hearing possible could be resorted to. We shall not be understood to have held that, irrespective of inordinate delay in consideration of the appeal and long incarceration undergone, the power under the said provision cannot be invoked. In short, we are of the view that each case has to be examined on its own merits and based on the parameters, to 昀椀nd out whether the sentence imposed on the appellant(s) concerned should be suspended during the pendency of the appeal and the appellant(s) should be released on bail.” (Emphasis supplied) 23. Therefore, the applicant can be released on bail if it is shown that he has a fair chance of acquittal. 24. It was submitted that there was a delay in reporting the matter to the police, which casts a doubt regarding the prosecution’s case. These submissions cannot be accepted. The record shows that the applicant Arvind alias Vicky trespassed into the kitchen of the victim and committed sexual assault upon her on 6.4.2023. He and other co-accused followed the victim on 8.5.2023 and made obscene gestures/signals after seeing the child. The victim was alone on the dates of the incidents. She was a minor and frightened after the incident. She revealed the incident when she was followed and feared for her safety. A child victim is unable to comprehend the nature of the act and does not report the matter immediately to her relatives or other persons. Therefore, the delay in reporting the matter to the police cannot be prima facie held to be fatal. 25. It was submitted that the conduct of the child victim was unnatural and falsi昀椀ed the prosecution’s case. This submission cannot be prima facie accepted. Every person reacts di昀昀erently to the crime, and there is nothing called a natural reaction to the crime. Some people fear and withdraw, whereas others shout and report the matter to the police. In the present case, the victim did not narrate the incident to any person because of her fear and shame. Therefore, her conduct cannot be said to be prima facie inconsistent with the prosecution’s case. 26. It was submitted that there is a contradiction in the prosecution’s version because the victim’s father stated that the incident was narrated by the victim to her mother, whereas the victim stated that she had narrated the incident to her grandmother. This contradiction is prima facie insigni昀椀cant as it is a post-event detail which does not a昀昀ect the incident. Further, the victim was alone, and her father did not say that the victim had narrated the incident to her mother in his presence. Therefore, the testimony of the victim’s father would be hearsay and cannot be relied upon. 27. It was submitted that no independent witness was associated, and the learned Trial Court relied upon the statement of the victim. This submission will not help the petitioner. The incident occurred when the victim was alone, and nobody could have corroborated the victim’s testimony. In any case, the failure to associate the independent witness is not fatal to the prosecution’s case. 28. Therefore, the applicant has failed to make out of su昀케cient case for the suspension of the sentence awarded by the learned Trial Court. 29. It was submitted that the disposal of the appeal is likely to take some time, and the applicant cannot be kept behind the bars awaiting the decision of his appeal. This submission will not help the applicant. This Court has the Roster to hear the criminal appeal for the year 2024, and the appeals of the year 2025 are also likely to come up for hearing pretty soon. In any case, the applicant has the right to approach the Court if it is found out that his appeal is not being listed for hearing. However, the sentence cannot be suspended by presuming that the applicant’s appeal is not likely to be taken up for hearing soon. 30. No other point was urged. 31. In view of the above, the present application fails and the same is dismissed. 32. The observations made hereinabove are regarding the disposal of the application and will have no bearing, whatsoever, on the case's merits. (Rakesh Kainthla) Judge 18th November, 2025 (Chander)