THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Appellate Jurisdiction)

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SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE

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I.A. No.01 of 2025

IN

Crl. A. No. 21 of 2025

Mr. Buddha Raj Rai,

Aged about 33 years,

S/o Late Ram Bahadur Rai,

R/o Lower Aho, Pakyong, Sikkim.

(Presently at State Central Jail Rongyek).

….. Applicant

Versus

State of Sikkim.

….. Respondent

An application for Bail and suspension of sentence under Section

430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Appearance:

Ms. Neha Gupta, Advocate for the Applicant.

Mr. Thinlay Dorjee Bhutia, Public Prosecutor.

Mr. Yadev Sharma, Additional Public Prosecutor for

the State-Respondent.

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Date of Hearing : 16.09.2025

Date of Order : 16.09.2025

O R D E R (ORAL)

Bhaskar Raj Pradhan, J.

1. An application for suspension of sentence and bail

under Section 430(1) of the Bharatiya Nagarik Suraksha

Sanhita, 2023 (the BNSS) has been filed by the applicant

on 05.07.2025 on the following grounds:-

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Buddha Raj Rai vs. State of Sikkim

(i) That the applicant has been convicted under

section 9(l) of the Protection of Children from Sexual

Offences Act, 2012 (the POCSO) and sentenced to a

fixed term of five years and to pay a fine of Rs.2000/-

vide sentence dated 27.06.2025.

(ii) That the applicant is a permanent resident of

Sikkim having his home at Lower Aho, Pakyong,

Sikkim.

(iii) That during the trial of the case the applicant

was on bail and he did not violate any of the condition

of bail.

(iv) That the applicant has a good case to succeed on

merits and shall suffer irreparable loss if he is not

allowed bail and his sentence suspended.

(v) That the applicant is a driver by occupation and

is the only bread-winner in his family.

(vi) That the applicant has a wife, minor daughter

and ailing aged mother who recently had undergone

surgery for removal of gall bladder stone and she also

suffers from diabetes, hypertension and is under

constant medications.

(vii) That the applicant being the sole bread winner

had been looking after his ailing mother and taking

care of her.

(viii) That the applicant would not abscond if granted

bail.

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Buddha Raj Rai vs. State of Sikkim

2. The application is accompanied and supported by

several documents including the final diagnosis of the

Department of General Surgery of Central Referral

Hospital, Sikkim Manipal University dated 10.02.2025

relating to Mrs. Ran Maya Rai and other connected medical

papers of the applicant’s mother.

3. The applicant has also placed on record his Certificate

of Identification, transfer certificate issued by the Head

Master of the Government Secondary School, Aho Shanti

and ‘parcha khatiyan’ of the land recorded in the name of

his father.

4. The learned Public Prosecutor appearing for the State-

respondent objects to this application. It is pointed out that

the victim was a minor during the time of the commission

of sexual assault and that the applicant has been convicted

on examination of the evidence.

5. The learned Public Prosecutor relies upon the

judgment of the Supreme Court in Preet Pal Singh vs. State

of Uttar Pradesh & Anr.

1 in which it has been held as under:

“35. There is a difference between grant of bail under

Section 439 CrPC in case of pre -trial arrest and

1

(2020) 8 SCC 645

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Buddha Raj Rai vs. State of Sikkim

suspension of sentence under Section 389 CrPC and grant

of bail, post conviction. In the earlier case, there may be

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

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 comp elling

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) CrPC.”

6. Per contra the learned counsel for the applicant cites

Bhupatji Sartajji Jabraji Thakor vs. The State of Gujarat

2 in

which vide order dated 05.07.2024 the Supreme Court has

held:

“7. There is a fine distinction between a sentence imposed

by the trial court for a fixed term and sentence life

imprisonment. If a sentence is for a fixed term, ordinarily,

the appellate court may exercise its discretion to suspend

the operation of the same liberally unless there are any

exceptional circumstances emerging from the record to

decline. However, when it is a case of life imprisonment,

the only legal test which the Court should apply is to

ascertain whether there is anything palpable or apparent

on the face of the record on the basis of which the court

can come to the conclusion that the conviction is not

sustainable in law and that the convict has very fair

chances of succeeding in his appeal. For applying such

test, it is also not permissible for the court to undertake

the exercise of re-appreciating the evidence. The emphasis

is on the word “palpable” and the expression “apparent on

the face of the record”.

2

2024 SCC OnLine SC 3320

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Buddha Raj Rai vs. State of Sikkim

7. On reading the two opinions of the Supreme Court it

is apparent that in a case of post conviction bail and

suspension of sentence what is to be considered is prima

facie merits of the appeal coupled with other factors and

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. It is also necessary to

consider that if a sentence is for a fixed term, the Court

may exercise its discretion to suspend the operation of the

same unless there are exceptional circumstances emerging

from the record to decline the same.

8. The learned counsel for the applicant took this Court

through the deposition of the victim as well as the mother

which has been placed on record and pointed out various

discrepancies in their depositions. The learned counsel also

pointed out that various material objects have not been

identified by the victim and search and seizure not proved.

9. It is seen that the conviction of the applicant under

section 9(l) of the POCSO Act is based on the statement of

the victim that he had touched her breast twice in his taxi

in the same journey. Section 9(l) of the POCSO Act relates

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Buddha Raj Rai vs. State of Sikkim

to offences of sexual assault on a child more than once or

repeatedly. The applicant has been sentence for fixed term

of five years only. It is settled law 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 can be considered by the appellate court liberally

unless there are exceptional circumstances. There are no

exceptional circumstances available on record compelling

this Court not to consider suspension of sentence liberally.

There are no statutory restrictions against suspension of

sentence on the facts of this case ingrained in section 430

of the BNSS. It is not a sentence of life imprisonment where

the consideration of suspension of sentence could be

differently approached. Although criminal appeals are

heard expeditiously it would certainly take some time

before the appeal is finally decided. The criminal appeal

has been filed by the applicant with the hope that the

impugned judgment would be reversed. Finally when the

criminal appeal is heard and decided if it leads to a reversal

of the conviction the time suffered by the applicant would

be irreversible. Therefore, to make the appeal right ,

meaningful and effective, this Court is of the opinion that

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Buddha Raj Rai vs. State of Sikkim

this is a fit case to liberally consider suspension of the

applicant’s sentence.

10. The applicant has also made out a strong case for

grant of bail. The judgment of the learned Special Judge is

dated 26.06.2025. The appeal was filed on 05.07.2025. The

applicant has been convicted for aggravated sexual assault

on the victim under section 9( l) of the POCSO Act

punishable under section 10 of the POCSO Act for

inappropriately touching the victim. He has been sentenced

for an imprisonment for a term of five years and fine of

Rs.2000/-. As the criminal appeal has been recently filed

paper-books have yet not been prepared and it would take

some time to do so. It is apparent that the applicant has an

ailing mother and there is no compelling reason to doubt

his assertion that he also has a wife and a minor daughter

to take care of. The applicant asserts that he is a

permanent resident of Sikkim which is also reflected in the

certificate of identification filed by him. It is apparent that

his family is based in Sikkim and has landed property here

as well. The applicant asserts that he is a driver by

profession and the sole bread-winner of his family. The

applicant’s prayer for grant of bail seems a genuine one

considering the above multiple factors. The sentence

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Buddha Raj Rai vs. State of Sikkim

against the applicant is dated 27.06.2025 which means

that he has already served more than two and half months

of the five years sentence. The applicant would have

suffered incarcination during the period of investigation

and trial which has been directed by the learned Special

Judge to be set off. As it is a fixed term of five years

sentence, considering the over all aspects of the case, this

Court is of the view that the sentence may be suspended

and bail should be granted so that he is able to contest this

appeal more effectively. It is so ordered.

11. It is directed that the applicant shall be released on

bail on the following conditions:-

(i) During the period of bail the applicant shall not

travel beyond the jurisdiction of the State of Sikkim

without written orders of the concerned learned

Special Judge.

(ii) The applicant shall not make any attempt to

meet or influence the victim or any of her relatives or

close ones.

(iii) The applicant shall attend and appear before this

Court as and when required and certainly on the

Judgment day for which he shall keep in touch with

his counsel.

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Buddha Raj Rai vs. State of Sikkim

(iv) He shall present himself every fortnight till the

disposal of the present appeal before the jurisdictional

Station House Officer, Ranipool, Police Station who

shall keep a record and make it available to the court.

(v) The applicant shall furnish bail bond of

Rs.10,000/- with two reliable sureities to the

satisfaction of the learned Special Judge and for the

said purpose the jail authorities shall present the

applicant before the learned Special Judge as soon as

possible and latest by 18.09.2025.

12. I.A. No.01 of 2025 is allowed and stands disposed of

accordingly.

13. A copy of this order shall be forwarded to the learned

Special Judge POCSO, Gangtok , as well as the Jail

Superintendent, Rongyek, Gangtok both by email as well as

in the usual course. A copy shall also be granted to the

learned counsel for the applicant to enable her to provide

effective assistance to the applicant.

( Bhaskar Raj Pradhan )

Judge

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