There is a difference between grant of bail under section 439 Cr.P.C. and grant of bail, post-conviction: Sikkim High Court

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appeal Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE I.A. No. 21 Crl. Appeal No. 121 Pema Tshering Bhutia S o Pempa Bhutia Permanent Resident of Phensong P.S. Mangan North Sikkim. ….. Appellant State of Sikkim Application under Section 389(1) of the Code of Criminal Procedure Code 1973. Ms. Zola Megi Advocate for the Appellant. Mr. S.K. Chettri Additional Public Prosecutor and Ms. Pema Bhutia Assistant Public Prosecutor for the State respondent. Date of hearing : O R D E RBhaskar Raj Pradhan J. This is an application under section 389(1) of the Code of Criminal Procedure 1973 for suspension of sentence and grant of bail pending disposal of the appeal. 2 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim Ms. Zola Megi learned counsel for the appellant submits that the order on sentence was passed on 31.08.2021 by which the appellant has been sentenced to one year each under section 354 and 506 of the Indian Penal Code 1860 Cr.P.C. is not applicable. 3 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim In Preet Pal Singh vs. State of Uttar Pradesh1 the Supreme Court held that there is a difference between grant of bail under section 439 Cr.P.C. and grant of bail post conviction. the earlier case there may be presumption of innocence which is a postulate of criminal jurisprudence and 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. 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. Nor is the principle of bail being the rule and jail an exception attracted once there is 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 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) Cr.P.C. It was further held that in considering an application for suspension of sentence the Appellate Court is only to examine if there is such patent infirmity in the 18 SCC 645 4 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim order of conviction that renders the order of conviction prima facie erroneous. In Kiran Kumar vs. State of M.P.2 the Supreme Court noted its opinion in Bhagwan Rama Shinde Gosai vs. State of Gujarat3 in which it was held 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 can be considered by the Appellate Court liberally unless there are exceptional circumstances. If the short term sentence is allowed to run during the pending of the appeal the appeal itself will become for all practical purposes infructuous so far as the appellant is concerned. A note of caution was given by the Supreme Court that it did not mean that the Appellate Court should suspend the sentence if its consequence would be a danger to the society or any other similar difficulties. Considering the rival submissions and examining the impugned judgment and order on sentence along with the depositions of the prosecution witnesses this court is of the view that it is a fit case in which the appellant ought to be granted bail pending the final disposal of the appeal. The judgment rendered by the learned Special Judge POCSO Act) North Sikkim at Mangan9 SCC 211 34 SCC 421 5 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim Judge) dated 28.08.2021 has acquitted the appellant for the charge under section 7 of the POCSO Act holding that the prosecution is unable to prove it. The conviction under section 354 IPC and 506 IPC is for a year each and it has been directed to run concurrently. The appellant having already served more than seven months there is less than three months further for the appellant to complete the sentence awarded. The appeal having been admitted is unlikely to be heard within the period of three months as the lower court records must be called for paper books prepared and matter heard finally. If the appeal is not heard within the three months next it would be rendered infructuous. This court therefore deems it appropriate to suspend the sentence passed on the appellant during the pendency of the appeal and direct him to be released on bail on his executing a bond with two solvent sureties to the satisfaction of the learned Special Judge. Additionally he shall appear personally on every date of hearing before this court stay away from the victim and not leave Sikkim without the permission from the learned Special Judge. He shall also provide his active mobile number as well as his active email addressto the registry of this court as well as the court of the learned Special Judge before whom he shall be produced on Monday 15.11.2021. 6 I.A. No. 021 IN Crl. Appeal No. 121 Pema Tshering Bhutia vs. State of Sikkim The application for suspension of sentence and bail is accordingly allowed and disposed. This order in addition the regular mode shall also be communicated electronically to all concerned. Bhaskar Raj Pradhan ) Judge Approved for reporting : Yes : Yes Internet 

Summary: If the short-term sentence is allowed to run during the pending of the appeal, the appeal itself will become for all practical purposes, infructuous, so far as the appellant is concerned. Such an opinion was held by The Hon’ble High Court of Sikkim before The Hon’ble Mr. Justice Bhaskar Raj Pradhan in the matter of Pema Tshering Bhutia Vs. State of Sikkim [I.A. No. 1 of 2021 in Crl. Appeal No. 13 of 2021]. The facts of the case were associated with an application for suspension of sentence and grant of bail pending disposal of the appeal under section 389(1) of the Code of Criminal Procedure, 1973 (Cr.P.C.). The counsel representing the appellant stated that according to the order, the appellant was sentenced to one year each under sections 354 and 506 of the Indian Penal Code, 1860 (IPC). The PP for the state submitted that the appellant was convicted by the learned Trial Court and therefore the sentence must not be suspended. A previous case in Preet Pal Singh vs. State of Uttar Pradesh1 was referred wherein The Hon’ble Supreme Court held that assumption of innocence was a significant postulate of criminal jurisprudence, and courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail was the rule and jail was an exception. It was also stated that during post-conviction bail if guilt was found and the question of presumption of innocence did not rise, then suspension of operation of the sentence could be considered. It was also submitted that the court considered the prima-facie merits of the appeal with other factors. The Hon’ble Court opined that the Appellate Court must examine if there was an order of conviction that rendered the order of conviction prima facie being erroneous.  Considering all the facts The Hon’ble Court ruled that “… Considering the rival submissions and examining the impugned judgment and order on sentence along with the depositions of the prosecution witnesses, this court is of the view that it is a fit case in which the appellant ought to be granted bail pending the final disposal of the appeal… The application for suspension of sentence and bail is accordingly allowed and disposed of. This order in addition to the regular mode shall also be communicated electronically to all concerned.”