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The Sikkim HC recently granted bail to a woman charged for offenses u/s 302 & 201 of the Indian Penal Code,1860 (“IPC”), keeping into consideration the fact that the applicant has spent more than one year of incarceration along with the child on the ground of delay in completion of the trial. 

“Although charges were framed on 17.07.2020, only one witness has been examined till date. The records reveal that dates have been set for examination of prosecution witnesses till 21.06.2021. There is no likelihood of the trial completing in the near future. The charge-sheet does not reflect any material which would show that the applicant had been previously convicted for any offence. It is also to be noted that the offence charged against the applicant is heinous and most of the witnesses are yet to be examined including Ms Nirmala Rai, who is sought to be heavily relied upon by the prosecution. The applicant is not only a woman but also with a minor child who is, due to her circumstances, also lodged at Rongyek Central Prisons. The applicant has already spent more than a year of incarceration along with the child. The apprehension of the learned Assistant Public Prosecutor is logical but without any material to support it. The apprehension can be safeguarded by laying down strict conditions for bail.”, Single Bench of Justice Bhaskar Raj Pradhan noted. 

In the present matter, a case was registered on 03.06.2019 u/s 174 of CrPC,1973 upon receipt of a written report from a panchayat member of Upper Pachak, East Sikkim, stating that the deceased (Passang Kinzi Sherpa) was found dead in the informant’s courtyard. During the investigation, the Investigating Officer (“IO”) found that the informant killed the deceased by twisting her neck inside the sitting room of his house. Chargesheet was filed u/s 302/201 IPC,1860, and the Applicant was arrested on 24.12.2019, and since then, she continues to be incarcerated. The Applicant filed an application u/s 439 CrPC,1973 before the learned Sessions Judge, which was heard and rejected on 03.03.2020 on the ground that the offenses involved were serious, rather heinous, and the materials indicated her involvement. After that, the Sessions Judge framed charges against the applicant u/s 302 & 201 IPC. Thus, the Applicant preferred an application for bail u/s 439 CrPC,1973 before this Court. 

Thus, the Bench while granting bail to the Applicant by laying down the following additional conditions: 

The applicant shall, during the entire period of trial, stay with her sister at Pakyong and away from Upper Pachak, East Sikkim. She provides the Investigating Officer and the trial court with her active mobile number as well as the mobile number of her sister. She shall also provide the full postal address of her sister to the trial court and the Investigating Officer. 

1. The applicant shall report to the Station House Officer of the Pakyong Police Station on every Monday at 10:30 a.m. and if that day happens to be a date fixed for trial then on the next working day at the same time on which day she is not required for the trial.
2. The applicant shall not approach or try to influence any of the prosecution witnesses, either directly or indirectly. 
3. The applicant shall not leave the jurisdiction of the Pakyong Police Station without the written permission of the Investigating Officer except to attend the trial before the learned Sessions Judge.
4. The applicant shall attend each and every date set for trial before the learned Sessions Judge. 

Further, the Bench also gave liberty to the learned Sessions Judge to send the applicant back to jail in case of breach of any of the applicant's conditions & directed the IO to monitor the applicant & take necessary steps for the protection of the prosecution witnesses. 

Case Title : Phurba Lhamu Tamang v. State of Sikkim

Law Point/Statute Involved : S.439 of the Code of Criminal Procedure, 1973 & S.302 and S.201 of the Indian Penal Code,1860