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

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.”

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Judgment reviewed by Bipasha Kundu

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