Shailender Vs State of Hp

( 2024:HHC:14808 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP No. 4288 of 2024 in Cr.Appeal No.273 of 2024 Date of decision: 16th December, 2024

Shailender Sharma Versus	…Petitioner/appellant
State of HP	…Respondents.
*Coram*
*Hon’ble Mr. Justice Vivek Singh Thakur, Judge.*
*Hon’ble Mr. Justice Rakesh Kainthla, Judge.*

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Whether approved for reporting? Yes

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For the Petitioner/appellant: Mr. Karan Kapoor, Advocate.

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For the Respondent : Mr. Ajay Kumar, Advocate.

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Vivek Singh Thakur, Judge (Oral)

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This application has been preferred on behalf of appellant under Section 430 of Bharatiya Nagrik Suraksha Sanhita (BNSS) 2023, seeking suspension of sentence imposed upon the appellant.

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2 Appellant was arrested on 21.05.2019 and since then, till conviction he was in judicial custody and after conviction, vide judgment dated 18.4.2024 he is in detention as convict.

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3 The appellant has been convicted of having committed offences under Sections 363, 366 and 342 IPC and Section 6 of POCSO Act read with Section 376 IPC with sentence to undergo 3

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2 Cr.MP No. 4288 of 2024 in Cr.Appeal

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No.273 of 2024

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( 2024:HHC:14808 )

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years, 5 years, 1 year and 15 years rigorous as well as simple imprisonment respectively along with fine.

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4 The main and only ground pressed on behalf of appellant to enlarge him on bail by suspending his sentence is that he is first time offender and has been convicted and sentenced for maximum 15 years rigorous imprisonment under Section 6 of POCSO Act vide judgment/order dated 18.4.2024/19.4.2024 and including his detention as under-trial prisoner, he has served more than 5 years which is more than 1/3rd of maximum sentence awarded to him and being the first time offender, he is entitled for suspension of sentence, in terms of provisions of Section 479 of BNSS.

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5 We have gone through the provisions of Section 6 of POCSO Act and Section 479 of BNSS.

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6 Punishment under Section 6 of POCSO Act is that convict under Section 6 shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person or with death and convict shall also be liable to fine.

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7 It is not possible to calculate ½ or 1/3rd of imprisonment of life which means for remainder of natural life. Similarly, there cannot be ½ and 1/3 of capital/death penalty.

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8 Therefore, though Section 479 of BNSS provides the

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3 Cr.MP No. 4288 of 2024 in Cr.Appeal

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No.273 of 2024

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( 2024:HHC:14808 )

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maximum period for which undertrial prisoner can be detained, however with rider that if such offence is an offence for which punishment of death or life imprisonment has been specified as one of the punishment, provisions of Section 479 of BNSS shall not be applicable.

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9 Plea of appellant that ½ or 1/3rd period of sentence is to be counted on the basis of awarded sentence is also misconceived as Section 479 BNSS refers to the sentence specified for the offence but not awarded sentence. Sentence specified for the offence cannot be treated as sentence awarded for the offence.

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10 Therefore, neither provisions nor principles contained under Section 479 of BNSS Act are attracted in present case and thus, no ground on which suspension of sentence is being prayed for, is available to the appellant.

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Accordingly, we do not find any merit in application for suspending the sentence of appellant at this stage on the ground pleaded.

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Accordingly, the application is dismissed.

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(Vivek Singh Thakur), Judge.

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(Rakesh Kainthla),

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Judge.

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(ms)