THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Appellate Jurisdiction)

-------------------------------------------------------------------------------

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

-----------------------------------------------------------------------------------------------------------------

I.A. No. 01 of 2025

IN

Criminal Appeal No. 20 of 2025

Sachin Rai,

Aged about 32 years,

Son of Late Harka Bahadur Rai,

Resident of Upper Rakdong Silling,

District Gangtok, Sikkim.

At present: Sikkim State Central Jail, Rongyek, Sikkim.

….. Applicant

Versus

State of Sikkim.

…..Respondent

Application for bail and suspension of sentence under

section 430(1) of the Bharatiya Nagarik Suraksha Sanhita

2023.

----------------------------------------------------------------------------------------

Appearance:

Mr. N. Rai, Senior Advocate with Ms. Tara Devi

Chettri, Advocate for the Applicant.

Mr. Yadev Sharma, Additional Public Prosecutor for the

State-Respondent.

----------------------------------------------------------------------

Date of Hearing : 30.10.2025

Date of Order : 30.10.2025

Date on which uploaded : 31.10.2025

O R D E R (ORAL)

Bhaskar Raj Pradhan, J.

1. The applicant has filed an appeal under section 415(2)

of the Bharatiya Nagarik Suraksha Sanhita, 2023 (the BNSS) .

2

I.A. NO. 01 of 2025

IN

Crl Appeal No. 20 of 2025

Sachin Rai vs. State of Sikkim

He has been convicted vide impugned judgment dated

27.05.2025 and sentenced vide order dated 30.05.2025 to

undergo rigorous imprisonment for a term of three years and

fine of Rs.2000/- for the offence under section 7 punishable

under section 8 of the Protection of Children from Sexual

Offences Act, 2012 (POCSO Act).

2. As the applicant was convicted by the learned Special

Judge on 27.05.2025 and he was taken into custody on

27.05.2025. He has been in custody since then.

3. The application for suspension of sentence is under

section 430(1) of the BNSS, 2023 which provides that pending

any appeal by a convicted person, the Appellate Court may, for

reasons to be recorded by it in writing, order that the execution

of the sentence or order appealed against be suspended and,

also, if he is in confinement, that he be released on bail, or on

his own bond or bail bond.

4. The learned Senior Counsel for the applicant submits that

conviction of the applicant is for having committed sexual

assault and not for any graver offence under the POCSO Act. He

submits that in such cases the suspension of sentence can be

considered by the Appellate Court liberally unless there are

exceptional circumstances. In support of his submissions he

3

I.A. NO. 01 of 2025

IN

Crl Appeal No. 20 of 2025

Sachin Rai vs. State of Sikkim

cites the judgment of the Supreme Court in Bhagwan Rama

Shinde Gosal & Anr. vs. State of Gujarat

1.

5. Vehemently objecting the suspension of the applicant’s

sentence and his release on bail, Mr. Yadev Sharma, learned

Additional Public Prosecutor cites yet another judgment of the

Supreme Court in AAsif @ Pasha vs. The State of U.P. & Ors.

2 in

which it was held:

“19. It is unfortunate that the High Court while passing

the impugned order failed to take into consideration the

well-settled principles of law governing the plea of

suspension of sentence on fixed term is concerned. What

the High Court did was to reiterate the entire case of the

prosecution and the oral evidence which has come on

record.

20. That is not the correct approach.

21. The High Court should have been mindful of the fact

that the appeal is of the year 2024. Appeal of 2024 is not

likely to be taken up in near future. Ultimately, if 4 years

are to elapse in jail the same would render the appeal

infructuous and that would be travesty of justice.

22. In such circumstances, referred to above, we set aside

the impugned order and remand the matter to the High

Court for fresh consideration of the plea of the appellant -

herein for suspension of the substantive order of sentence

keeping in mind the principles of law as explained by us

aforesaid. The High Court shall keep in mind that the

sentence is for a fixed term, i.e. 4 years and it is only if

there are any compelling circumstances on record to

indicate that the release of the appellant would not be in

public interest that the Court may order accordingly.”

6. The learned Additional Public Prosecutor submitted that

this was a case of a conviction under section 7 punishable

under section 8 of the POCSO Act for sexual assault on a 14

years old child and therefore that itself would be compelling

1

(1999) 4 SCC 421

2

2025 INSC 944

4

I.A. NO. 01 of 2025

IN

Crl Appeal No. 20 of 2025

Sachin Rai vs. State of Sikkim

circumstance on record that the release of the applicant would

not be in public interest. The learned Additional Public

Prosecutor submits that both the victim and the applicant are

neighbours hailing from the same village and therefore,

releasing the applicant would disturb the society and also the

victim. The learned Senior Counsel for the applicant submits

that the applicant has a relative who stays in Gangtok and he is

ready to stay with him until the case is finally decided.

7. The record reveals that since his conviction on 27.05.2025

the applicant has been in jail for five months. The appeal is

unlikely to be heard before the 14.12.2025 from which date this

Court goes on winter vacation. As the conviction of the

applicant is for a fixed term of three years only prejudice would

be exceptional if the applicant succeeds on a reversal which

could be determined only on final hearing. The applicant has

been convicted for touching the victim inappropriately. The

victim’s statement is questioned by the learned Senior Advocate

on the ground that it conflicts with her statement recorded

under section 164 Cr.P.C. The appeal needs to be examined and

the evidence scrutinised.

8. The learned Additional Public Prosecutor could not point

any other compelling circumstances on record to indicate that

the release of the applicant would not be in public interest.

Thus keeping in mind the parameters of the law laid down by

the Supreme Court the provision of law, this Court is of the view

5

I.A. NO. 01 of 2025

IN

Crl Appeal No. 20 of 2025

Sachin Rai vs. State of Sikkim

that the applicant’s sentence may be suspended and he be

released on bail on the following conditions:

(1) The applicant shall furnish bail bond of Rs.50,000/-

with two reliable sureties 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 at the earliest.

(2) The applicant shall not make any attempt to meet or

influence the victim or any of her relatives or close

ones.

(3) 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, Gangtok.

(4) The applicant shall attend and appear before this

Court on the next date of hearing, as and when

required and certainly on the judgment day for

which he shall keep in touch with his counsel.

(5) The applicant shall report to the Station House

Officer (SHO) Sadar Police Station, Gangtok on every

alternate Monday from the date of the release till the

pronouncement of judgment.

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

accordingly.

10. 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

6

I.A. NO. 01 of 2025

IN

Crl Appeal No. 20 of 2025

Sachin Rai vs. State of Sikkim

counsel for the applicant to enable him to provide effective

assistance to the applicant.

( Bhaskar Raj Pradhan )

Judge

Approved for reporting : Yes

Internet : Yes

to/