RATAN BARMAN v. THE STATE OF ASSAM AND ANR.

ORDER

15.09.2025

1. Heard Mr. H. R. A. Choudhury, learned senior counsel assisted by Mr. Page No.# 2/5 I. U. Choudhury, learned counsel for the applicant/appellant as well as Mr. P. Borthakur, learned Addl. P.P., Assam appearing for the State respondent No. 1.

2. By this interlocutory application under Section 430 BNSS (389 Cr.P.C.), the applicant/appellant has prayed for suspending judgment and order, dated 05.07.2024 passed by the learned Special Judge (POCSO), Kokrajhar in Special Case No. 30/2021, convicting the accused/appellant under section 4 of the POCSO Act R/W Section 366 of IPC and sentencing him to undergo RI for ten years and also to pay a fine of Rs.15,000/- (i/d of fine SI for three months under Section 4 of POCSO Act) and SI for three years and also to pay fine of Rs.5000/- (in default, simple imprisonment for one month) under section 366 of IPC.

3. The learned Senior Counsel has drawn my attention to the testimony of the prosecution adduced in the trial and also submitted that appellant has spent about 1 year 2 months serving out of the sentence.

4. The Prosecutor represented by learned additional Mr. Borthakur, learned Additional Public Prosecutor has drawn my attention to the written objection filed by the State objecting to the grant of bail, and any suspension of sentence. It is submitted that prime facie there is no infirmity in the impugned judgment and order. Also heard Ms. M. Barman, learned Legal Aid counsel for the informant who supports the contentions and submissions of the prosecution and submits that it may not be correct to grant bail to the appellant.

5. I have gone through the testimony of the prosecutrix as PW-3 during the trial. One of her statements in the deposition is that she stayed in the Page No.# 3/5 house of the accused for four months and there was a regular physical relationship between her and the accused. It has also been testified that her mother had told the accused person to marry her but the accused denied and that, in spite of his denial she lived in the house of the accused for about four months.

6. Suspension of sentence and bail, pursuant to a conviction, stands on a different footing than a regular bail during investigation or trial/in the latter, the presumption of innocence in favour accused/ convict no longer available. However, the admission of an appeal would definitely mean reopening the question of guilt of the convict and determining on the basis of law and facts as to whether the conviction was correctly recorded and if so, whether the sentence is also appropriate.

7. Further, at the stage of adjudicating a bail pending appeal, the considerations and concerns might be somewhat different from the conventional considerations taken into account by the court while adjudicating a bail during trial or investigation.

8. Therefore, in my considered view, at the stage of adjudicating a bail pending appeal, some of the important considerations could be – abscondence of the convict; any possibility of the of the convict inflicting self harm; any possibility or risk of the convict committing any harm or a vindictive act against the informant or victim or prosecution witnesses who may have deposed against him in the trial.

9. In the event of an appellant being denied bail at the stage of appeal. If there would be a corresponding duty to expeditiously dispose of the appeal if the appellant undergoes a substantive part of his sentence Page No.# 4/5 before his appeal is adjudicated - the same would constitute a violation of his human rights and constitutional rights under Article 21 of the Constitution of India. At the same time, there may be situations in appeals, where there are bona fide apprehensions about abscondence or safety of victim and witnesses.

10. Therefore, various competing interests have to be balanced while adjudicating such a bail pending appeal. To go back to the earlier point, if the appellant undergoes a substantive part of the sentence before his appeal is adjudicated, - the same, apart from violating the constitutional rights of the appellant - would also damage the credibility of the criminal justice system, including that of the Court.

11. Coming back to the facts of the present case, the present appeal having been filed in 2024 is in the queue for hearing and needless to say that there are many matters ahead in this appeal in the queue, including old pending matters. It cannot be denied that perhaps there is no immediate possibility of the disposal of the instant appeal.

12. Without expressing any view on the merits of the depositions, some aspects of the testimony of the victim during the trial cannot also be overlooked.

13. In the light of all facts and circumstances, I am considered that despite objections from the prosecution and the informant side, the appellant should be allowed to go on bail suspension of the sentence and by imposing suitable conditions to address the legitimate concerns.

14. Consequently – in the given facts and in the backdrop of the above discussion the execution of the order of sentence dated 05.07.2024 Page No.# 5/5 passed by the learned Special Judge (POCSO), Kokrajhar in Special Case No. 30/2021 is hereby suspended till disposal of the appeal. The applicant/accused is also directed to be released on bail of Rs.30,000/- (Rupees Thirty Thousand) with one surety of like amount to the satisfaction of the learned Special Judge, Kokrajhar. Further, the following conditions are imposed. (i) The appellant shall not abscond. (ii) The appellant shall record his presence before the learned trial court once every 3(three) months. The learned trial court would be at liberty to fix any specific date of the month for such appearance and also modify the time frame of such appearance. (iii) The convict appellant shall not inflict any harm upon himself (iv) The convict appellant shall not harass or cause any harm to the informant/victim and family. (v) The convict appellant shall not cause any harm or harassment to any prosecution witnesses, especially non official witnesses.

15. In case of violation of the bail conditions, the prosecution and/or the informant side shall be at liberty to approach this court or the Special Court, for cancellation of the bail.

16. Accordingly, the interlocutory application stands allowed and disposed of. Comparing Assistant JUDGE