Himachal Pradesh High Court
Smt. Veena Sharma vs State Of Himachal Pradesh on 6 April, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
th
ON THE 6 DAY OF APRIL, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL REVISION No.271 OF 2021
Between:
VIPUL LAKHANPAL,
S/O SH. RAJESH LAKHANPAL,
THROUGH HIS NATURAL
GUARDIAN/MOTHER
SMT. VEENA SHARMA,
RESIDENT OF SIKAND NIWAS,
LOWER BHARARI,
DISTRICT SHIMLA, H.P.
r ....PETITIONER
(BY MR. ANUBHAV CHOPRA,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH,
....RESPONDENT
(BY MR. SHIVPAL MANHANS,
ADDITIONAL ADVOCATE GENERAL
WITH MR. BHUPINDER THAKUR,
DEPUTY ADVOCATE GENERAL)
Whether approved for reporting?.
This petition coming on for orders this day, the Court passed the following:
ORDER
Being aggrieved and dissatisfied with order dated 30.9.2021, whereby surety namely Smt. Veena Sharma came to be directed to cause ::: Downloaded on - 06/04/2022 20:11:52 :::CIS 2 presence of the accused namely Vipul Lakhanpal in the court, petitioner-
.
accused Vipul Lakhanpal, has approached this Court through his natural guardian Smt. Veena Sharma in the instant proceedings filed under Section 397 read with Section 401 Cr.PC, praying therein to set aside order dated 30.9.2021 passed by the learned CJM Solan District Solan, H.P. and to grant one last opportunity to cause presence of the accused in the court in terms of order dated 30.9.2021.
2. Precisely facts of the case as emerge from the record are that FIR bearing registration No. 60 of 2014 under Section 67 of the IT Act, came to be lodged against the accused Vipul Lakhanpal in the PS Sadar, District Solan, H.P., on the basis of the complaint made by his sister-in-law Kumari Parul Sharma, who alleged that accused named herein above sends her abusive and obscene messages on her Whatsap number. Police after completion of investigation presented the Challan in the competent court of law, wherein accused named herein above stands enlarged on bail. Since despite notice, accused failed to put in appearance before the court below, court below called upon the surety Ms. Beena Sharm, who is mother of the accused, to cause his presence. On 30.9.2021, aforesaid surety apprised the court below that she was unable to cause presence of the accused in the court on account of his mental health. She submitted before the court that since accused Vipul Lakhanpal is not in a good mental ::: Downloaded on - 06/04/2022 20:11:52 :::CIS 3 health/condition, he can't be produced before the court, however, court .
with a view to consider the prayer made on behalf of the accused by way of filing an application under Section 329 and 330 Cr.PC, deemed it necessary to cause presence of the accused, to ascertain the factum with regard to his being of unsound mind.
3. Having carefully perused order dated 30.9.2021, this Court finds no illegality and infirmity in the same because Ms. Veena Sharma being surety is otherwise under obligation to cause presence of the accused in the Court. Even if it is presumed that accused is of unsound mind, plea taken by the surety cannot be accepted that accused cannot come present in the Court. Otherwise also, this Court finds that court has called upon the accused to come present to ascertain factum with regard to his being of unsound mind so that application filed under Sections 329 and 330 Cr.PC by the accused is decided.
4. At this stage, learned counsel for the petitioner states that one last opportunity may be granted to the surety to cause presence of the accused and till then, order dated 30.9.2021, may not be given effect to.
Mr. Shivpal Manhans, learned Additional Advocate General is not averse to the aforesaid innocuous prayer made on behalf of the petitioner.
5. Consequently, in view of the above, present petition is allowed and order dated 30.9.2021, is quashed and set-aside and surety-Smt. ::: Downloaded on - 06/04/2022 20:11:52 :::CIS 4 Veena Sharma is directed to cause presence of the accused in the court .
below on 22.4.2022, enabling the court below to pass appropriate orders in the application filed under Sections 329 and 330 Cr.PC on behalf of the accused. Needless to say, surety can always take assistance of the police for causing presence of the accused in the court, if he becomes violent.
Learned counsel for the parties undertake to apprise the court below with regard to passing of the instant order, enabling it to do the needful well within the stipulated period. It is clarified that in case needful in terms of instant order is not done by the surety i.e. on the date fixed by this Court, impugned order dated 30.9.2021 shall automatically revive and no further opportunity would be granted to cause presence of the accused. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any.
6th April, 2022 (Sandeep Sharma),
(manjit) Judge
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