NIRU SINGH v. STATE OF SIKKIM — 1995 DIGILAW 2 (SIK)

MALAY SENGUPTA, J. ( 1 ) THIS is a petition under section 440 of the Code of Criminal Procedure, 1973. ( 2 ) THE fact of the case is that one Ms. Chandra Maya Chettri of Munew Busty, West Sikkim was kidnapped by one Mr. Tilbahadur Chettri of Rumbuk Village on the pretext that she would be taken to Nepal. But ultimately Tilbahadur took her to Siliguri and made her over to Smt. Niru Singh, who is the petitioner before us. At that place Chandra Maya had to lead immoral life under the care of Niru Singh and she had to perform sexual acts with Tilbahadur Chettri and thereafter with many people of Siliguri area. The place where Chandra Maya was kept is known as Khalpara. This continued for one month till Chandra Maya was recovered by her father with the assistance of Police. ( 3 ) ACCUSED petitioner was arrested and produced before the Siliguri Court on 24. 6. 1995 and was sent to Siliguri Special Jail from there. Ultimately a charge sheet was submitted by Gyalshing P. S. Under sections 363/346/365/506 read with section 34 IPC together with Section 5 and 6 of the Suppression of Immoral Traffic in Women and Girls Act, 1956. ( 4 ) BAIL prayer was made before the Learned Sessions Judge (West and South), Gangtok. There the Ld. Public Prosecutor did not oppose the bail of this female accused (petitioner before us) but indicated that the amount of bail should be very high. ( 5 ) IN consideration of the nature of offence and in view of the fact that the accused petitioner was a resident of Siliguri, Ld. Sessions Judge ordered for her release on bail on furnishing a bond of Rs. 40,000/- with one reliable surety of like amount with further direction on the C. I. to see that the surety is a really reliable person. ( 6 ) BEING aggrieved by the aforesaid order, Niru Singh, the accused has put forward the present petition under section 440 Cr. P. C ( 7 ) HEARD both the sides. It has been contended on behalf of the petitioner that the charge-sheet had been wrongly submitted because there could not be any charge under section 376 IPC against the accused petitioner who is a female. P. C ( 7 ) HEARD both the sides. It has been contended on behalf of the petitioner that the charge-sheet had been wrongly submitted because there could not be any charge under section 376 IPC against the accused petitioner who is a female. It has been contended that charge under sections 5 and 6 of the Suppression of Immoral Traffic in Woman and Girls Act, 1956 was actually framed by the Ld. Sessions Judge only yesterday. There is, however, no documents to show that. Neither the learned Public Prosecutor appearing before us confirmed the same. However, let us proceed on the basis of the facts on record that the charge-sheet has been submitted as above. It has been urged by the Ld. Advocate for the petitioner that the petitioner is a poor woman and has left behind her minor son and daughter at her house and that very recently she has lost her husband in an accident. He submits further that she is unable to get any suitable surety at this place with such a big amount. He also argues that the petitioner is in custody since 24. 6. 1995 and that even after the bail was ordered for on 2 1. 10. 1995, she could not get herself released from the jail. ( 8 ) LEARNED Public Prosecutor while opposing the prayer of the petitioner submits that the alleged offence is serious in nature and that the victim was recovered from the residence of the accused herself. In such a case release of the accused on bail itself is a very risky job. If the amount is reduced the risk would be more grave. ( 9 ) IN consideration of the submissions made on behalf of the parties I make my observations as follows; In the FIR the victim girl has been shown as 15 years of age. But I find from the report of the hospital radiologist at Gangtok that her age was in between 18 and 19 years. It is very delicate to deal with the case relating to girls of such a age. Moreover, the story made out by the Victim girl about her leaving the field where she was working for going to Nepal on the proposal of Tilbahadur is to be taken with a grain of salt. It is very delicate to deal with the case relating to girls of such a age. Moreover, the story made out by the Victim girl about her leaving the field where she was working for going to Nepal on the proposal of Tilbahadur is to be taken with a grain of salt. ( 10 ) THE above comments made by me is not actually very much relevant and I would also propose that the observations should not have any repercussion at the time of trial Since the bail has already been ordered for, we are only to see how-much interference make with the order of bail. Section, 4 itself indicates that the bail amount use did not be excessive. This particular point of emphasized on as long back as in 1949 by a Full Bench of Lahore High Court where it was observed that the law put clear emphasis on the need of avoiding the fixing of excessive amount and if that is so done by the trial court, the superior court should reduce the amount Decision reported in AIR 1949 Lahore page 77 may be referred to on this point. ( 11 ) WE should bear in our mind that the object of demanding security is not to penalise the accused but to ensure his presence in the Court and the amount must be fixed with due regards to the means of the accused. 31 Criminal Law Journal page 980 would be very relevant in this context. In the instance case, what we find is that the accused is a female, a widow and having two small kids to look after. Therefore, it is a fit case where liberal attitude could be shown. Moreover, it appears, that the accused could not avail of the order of bail passed In her favor, obviously because the amount has been beyond the means of the accused. In such a case provision of Section 440 (2) Cr. P. C. should be invoked. The decision recorded In 1993 Criminal Law Journal page 3569 recommends such reduction. It has gone so far as to say that the trial court itself consider such a case. ( 12 ) IN consideration of the above facts and circumstances I propose that the amount of the bail granted should be brought down. P. C. should be invoked. The decision recorded In 1993 Criminal Law Journal page 3569 recommends such reduction. It has gone so far as to say that the trial court itself consider such a case. ( 12 ) IN consideration of the above facts and circumstances I propose that the amount of the bail granted should be brought down. At the same time I feel that since the accused would remain at a place quite far off Sikkim and also in a different State some restriction should be attached to the conditions of the reduced bail. Though imposition of such conditions is not within the purview of section 440 of Cr. P. C. , for that purpose, inherent power of this Court may very well be invoked. In view of the above noted facts and circumstances it is, hence. ORDERED That the Criminal Misc. Case is allowed and on contest. The order dated 21. 10. 1995 of the Ld. Sessions Judge (West and South) Gangtok in Criminal Misc. Case 9 of 1995 be modified to the extent that the amount of bail granted be reduced to Rs. 10,000/- (Rupees ten thousand only) with further condition that the accused should report once a fortnight at the police station nearest to her place of residence. The other conditions as imposed by the learned Sessions Judge regarding test of reliabibty of the sure and direction to the accused to be present illularly during the trial of the case would regularly as they are. Petition allowed. --- *** --- .