Division Bench cites fixed-term sentence, consensual relationship findings, birth of child, and absence of State’s objection in writing
The Sikkim High Court has suspended the 20-year sentence of a man convicted under the Protection of Children from Sexual Offences (POCSO) Act and granted him bail pending the hearing of his criminal appeal.
A Division Bench comprising Chief Justice A. Muhamed Mustaque and Justice Bhaskar Raj Pradhan passed the order on October 28, 2026, in I.A. No. 2 of 2026 in Criminal Appeal No. 21 of 2026, filed by appellant Dev Limboo against the State of Sikkim.
The appellant had been convicted by a Special Judge on May 25, 2026, for an offence under Section 5(j)(ii), punishable under Section 6 of the POCSO Act, and sentenced to rigorous imprisonment for 20 years along with a fine of Rs. 50,000. In default of payment of fine, he was directed to undergo a further six months’ simple imprisonment.
Seeking relief under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant asked the High Court to suspend the sentence and release him on bail during the pendency of his appeal. His counsel argued that he had remained on bail during the trial and that the case arose out of a love relationship between him and the victim.
According to the application, the appellant and the victim were in a romantic relationship before the FIR was lodged. They were stated to have married in 2023, and a baby boy was later born to them. The FIR, the defence said, was filed by the victim’s father after the victim left the appellant along with the child following a misunderstanding.
The High Court noted that although the appeal had already been admitted on September 29, 2026, the State failed to file any written response opposing the plea for suspension of sentence, despite being given a further opportunity. The Bench said that even after an additional chance was granted to the prosecution to show cause in writing, no response had been filed.
Explaining the legal position, the court observed that while considering an application under Section 430 of the BNSS, the appellate court must examine whether the sentence should be suspended during the appeal, whether the convict should be released on bail, and what conditions are necessary to secure his presence and compliance.
A significant factor in the court’s reasoning was the trial court’s own finding that the appellant and the victim had been in a love affair, had engaged in consensual sexual relations several times, had lived together with the appellant’s parents, and had a child born on January 23, 2024.
The Bench also took note of the appellant’s age and educational status. It was submitted that the 24-year-old had not completed his studies and needed to attend college to maintain sufficient attendance to sit for his bachelor’s degree examination.
The court emphasized that the sentence imposed was for a fixed term of 20 years. It held that where a sentence is for a fixed term, appellate courts may ordinarily exercise their discretion liberally in favour of suspending the sentence, unless exceptional circumstances exist. In the present case, the State had not pointed to any such exceptional circumstance from the record.
In view of the nature of the relationship between the parties, the birth of their child, the appellant’s educational needs, and the lack of any written objection from the State, the High Court concluded that it would be appropriate to suspend the sentence and release the appellant on bail.
The court accordingly suspended the sentence order dated May 25, 2026, and directed that the appellant be released on bail subject to conditions. He has been ordered to report to the Station House Officer of the jurisdictional police station once every fortnight until disposal of the appeal. The police are required to maintain a record of his attendance and make it available to the court when required.
The Bench further directed the appellant to furnish a bail bond of Rs. 10,000 with two reliable sureties to the satisfaction of the Special Judge. One of the sureties must be the appellant’s father, who was present in court and expressed willingness to stand surety.
The interim application was allowed, and copies of the order were directed to be sent to the Special Judge, POCSO, Gyalshing, and the Jail Superintendent, Rongyek, Gangtok.
Bottom Line:
Suspension of sentence and grant of bail pending appeal under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 - In case of conviction under Section 5(j)(ii) punishable under Section 6 of the POCSO Act, where sentence is for a fixed term of twenty years, appellate Court may ordinarily exercise discretion liberally to suspend sentence unless exceptional circumstances exist - Absence of response from State and circumstances showing consensual relationship, birth of child and appellant's desire to continue education considered relevant.
Statutory provision(s): Section 430(1), Bharatiya Nagarik Suraksha Sanhita, 2023; Section 5(j)(ii), Protection of Children from Sexual Offences Act, 2012; Section 6, Protection of Children from Sexual Offences Act, 2012
Dev Limboo v. State of Sikkim, (Sikkim)(DB) : Law Finder Doc id # 3008387
