Himachal Pradesh High Court
Arvind Negi vs Of on 19 August, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. : 2114 of 2023
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Decided on : 19.08.2023
Arvind Negi ...Applicant
Versus
of
State of Himachal Pradesh ...Respondent
Coram
rt
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1
For the applicant : Mr. Ajay Kochhar, Senior Advocate,
with Mr. Vivek Sharma & Mr. Gaurav
Kochhar, Advocates.
For the respondent : Mr. Tejasvi Sharma, Additional
Advocate General.
ASI Dharmender, Police Post Tikker,
Police Station Rohru, District Shimla,
H.P., present in person, alongwith the
police record.
Virender Singh, Judge. (Oral)
The order of mine shall dispose of the bail application, which have been filed by the applicant, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC').
1Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 19/08/2023 20:35:07 :::CIS 22. By way of the bail application, the applicant has sought his release, on bail, during the pendency of the trial, in .
case FIR No. 127 of 2023, dated 3 rd August, 2023, registered under Sections 341, 342, 452, 292, 228A, 201, 323, 34 of the Indian Penal Code (hereinafter referred to as 'IPC'), Section 75 of the Juvenile Justice (Care and Protection of Children) Act of (hereinafter referred to as 'JJ Act') and Sections 13, 14 and 21of the Prevention of Children from Sexual Offences Act rt (hereinafter referred to as 'POCSO Act'), with Police Station Rohru, District Shimla, H.P.
3. According to the applicant, he is an innocent person and has deep roots in the society. He has not committed the alleged offences and has falsely been implicated, in the present case.
4. As per the applicant, he has nothing to do with the offences, for which, he has been arrested, in this case.
5. It is the case of the applicant that he is a young man and keeping him in judicial custody would adversely affect his future. As per him, the investigation, in the present case, is almost complete.
::: Downloaded on - 19/08/2023 20:35:07 :::CIS 36. On the basis of the above facts, Mr. Vivek Sharma, learned counsel, appearing for the applicant, has given certain .
undertakings, for which, the applicant is ready to abide by, in case, he is ordered to be released on bail, during the trial.
7. A prayer has, therefore, been made to allow the bail application.
of
8. When put to notice, the police has filed the status report, disclosing therein, that on 31st July, 2023, a telephonic rt information was received in Police Post Tikker, whereby, it was disclosed that son of Shiv Kumar has beaten two Nepali boys.
In order to ascertain those facts, HC Madan Singh, No. 218, had inquired the matter. Upon inquiry, it has been found that Shiv Kumar, is running a sweet and vegetable shop in Tikker Market, and, used to prepare the sweets in the first floor of his shop, where two Nepali young men, namely, child victim A and child victim B, were found. During inquiry, it was found that both the child victims used to steal eatable items from the shop, upon which, son of the shopkeeper had beaten child victim A and also thrown chilly powder in his eyes.
8.1. It has also been found, during the inquiry, that the child victims A and B used to steal eatable items from the ::: Downloaded on - 19/08/2023 20:35:07 :::CIS 4 shop. As per status report, child victim A was given beatings, whereas, no beatings were given to child victim B. Thereafter, .
the child victim was got medico-legally examined at CHC Tikker, and, the injuries found on the person of child victim A were opined to be simple in nature, by the Medical Officer.
8.2. During investigation, it has also been found that the of father of the child victims, i.e. the complainant, had gone to Rohru, in connection with the treatment of his wife. On 31 st rt July, 2023, the wife of the complainant was referred to IGMC, Shimla, for further treatment, however, she died on the way.
Her last rites were performed and thereafter, on 3 rd August, 2023, the complainant got recorded his statement, to the police, disclosing therein, that he is resident of Nepal and for the last 15 years, residing with one Rakesh Deshta, resident of Village Khangta, in his orchard.
8.3. According to the complainant, he is having two sons, child victims A and B, aged about 15 and 13 years, respectively. His wife was suffering from some liver disease, due to which, she was admitted in Hospital at Rohru on 20 th July, 2023. In order to look after his wife, the complainant was in the Hospital at Rohru and his minor children, child victims ::: Downloaded on - 19/08/2023 20:35:07 :::CIS 5 A and B, were in his temporary shed. On 31 st July, 2023, wife of the complainant was referred, for further treatment, to .
Shimla, but, on the way to Shimla, when, they reached near Charabra, his wife expired. After performing her last rites, the complainant came to know from Shri Rakesh Deshta and other persons that on 31st July, 2023, when, his sons, child victims A of and B, reached at Tikker Market, at about 9.15 a.m., accused-
Rahul Soni had beaten child victim A and he was stripped off rt in the market. The chilly powder is also stated to have been thrown in the eyes of child victim A. 8.4. On the basis of the said complaint, FIR in question has been registered and the police machinery swung into motion.
8.5. In the investigation, as well as, on the basis of the statements of the witnesses, involvement of six persons was found, in this case. The allegations against accused-Rahul Soni @ Shenky were that he had beaten the child victim and also thrown chilly powder in his eyes. At that time, his father, accused-Shiv Kumar, was also present in the shop. The police has also recreated the scene of crime.
::: Downloaded on - 19/08/2023 20:35:07 :::CIS 68.6. It is the further case of the police that when child victim A was thrown out of the shop, in the naked condition, .
then, Ram Bahadur @ Ramu and his wife had requested accused-Rahul Soni not to do so. The child victim had also demanded the clothes, but, accused-Rahul Soni had not given the clothes to him.
of 8.7. As per the further case of the police, when, the child victim A was thrown out from the shop, in the naked condition, rt the child in conflict with law had recorded the video of the same, and, on demand, he has forwarded the same to Sandeep Deshta, Arvind Negi (applicant) and Sansar Chand. Thereafter, the said video was made viral.
8.8. It is the case of the police that all the six accused persons were arrested on 5th August, 2023 and were remanded to police custody on 6th August, 2023, and, now, all the accused persons are in judicial custody.
9. On the basis of the above facts, a prayer has been made to dismiss the bail application.
10. The applicant is presently in judicial custody. This fact speaks voluminously about the fact that his custodial interrogation is no longer required by the police.
::: Downloaded on - 19/08/2023 20:35:07 :::CIS 711. The role, allegedly, played by the applicant, will be proved during the trial and he cannot be kept in judicial .
custody for the indefinite period.
12. The accused is presumed to be innocent till the conclusion of the trial. Moreover, the bail application cannot be rejected as a matter of punishment, as, pre-trial punishment is of prohibited under the law.
13. The chances of commencement and conclusion of rt the trial, in near future, are not so bright, as such, no useful purpose would be served by keeping the applicant in judicial custody.
14. Considering all these facts, this Court is of the view that the bail application is liable to be allowed.
15. Consequently, the bail application is allowed and the applicant is ordered to be released on bail in case FIR No. 127 of 2023, dated 3rd August, 2023, registered under Sections 341, 342, 452, 292, 228A, 201, 323, 34 IPC, Section 75 of the JJ Act and Sections 13, 14 and 21 of the POCSO Act, with Police Station Rohru, District Shimla, H.P., subject to his furnishing personal bond in the sum of ₹ 50,000/-, with one surety in the like amount, to the satisfaction of CJM ::: Downloaded on - 19/08/2023 20:35:07 :::CIS 8 Shimla/ACJM Rohru/JMIC Rohru. This order, however, shall be subject to the following conditions:
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a) The applicant shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
b) The applicant shall not tamper with the prosecution of evidence nor hamper the investigation of the case in any manner whatsoever;
c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of rt the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and
d) The applicant shall not leave the territory of India without the prior permission of the Court.
16. Any of the observations, made hereinabove, shall not be taken as an expression of opinion on the merits of the case and the learned trial Court shall decide the matter uninfluenced by any of the observations made hereinabove.
17. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found to be violated by the applicant.
18. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Sub Jail Kaithu, Shimla, through e-mail, with a direction to enter the date of grant of bail in the e-prison software.
::: Downloaded on - 19/08/2023 20:35:07 :::CIS 919. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent .
of Jail, Sub Jail Kaithu, Shimla, is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent of Jail, Sub Jail Kaithu, Shimla, is further directed that if the applicant fails to furnish the bail bonds, as per the order of passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.
rt ( Virender Singh ) Judge August 19, 2023 ( rajni ) ::: Downloaded on - 19/08/2023 20:35:07 :::CIS