Himachal Pradesh High Court
Piyush Modgil vs State Of Himachal Pradesh on 30 May, 2020
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P. (M) Nos. 743 and 744 of
2020
.
Date of decision: 30.5.2020
1. Cr.M.P. (M) No. 743 of 2020
Piyush Modgil ...Petitioner
Versus
State of Himachal Pradesh. ...Respondent.
2. Cr.M.P. (M) No. 744 of 2020
Prakash Chand Sharma.
rVersus
State of Himachal Pradesh. to ...Petitioner
...Respondent.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes
For the Petitioner(s): Mr.Neel Kamal Sharma, Advocate through
Video Conferencing.
For the Respondent: Mr.Raju Ram Rahi, Deputy Advocate General,
through Video Conferencing.
Vivek Singh Thakur, Judge (oral)
Order In present petitions, preferred under Section 439 Cr.P.C.
during morning session, following order was passed:-
"These petitions have been filed in FIR No. 123 of 2020, dated 26.5.2020 registered under Sections 504, 506 and 500 IPC and under Section 3 of the Scheduled Caste and Scheduled Tribe Atrocities Act at Police Station Bhoranj, District Hamirpur, H.P.
2. Learned counsel for the petitioner(s) submits that petitioners are submitting themselves by way of surrendering in this Court to be taken into custody, but through learned Special Judge, Hamirpur as because of lockdown and curfew imposed in the State of Himachal Pradesh on account of epidemic (Covid-19), they are not able to travel to Shimla and remain physically present in this Court and therefore, they are appearing in the Court of Special Judge cum Sessions Judge, Hamirpur today itself, the Court situated within jurisdiction of this High Court, to submit themselves to the custody of this Court through the said Court, by appearing ::: Downloaded on - 30/05/2020 20:23:41 :::HCHP 2 Cr.M.P. (M) No. 743 and 744 of 2020 and surrendering before it and therefore, he prays for taking custody of the petitioners through Special Judge, Hamirpur.
3. The Apex Court in Directorate of Enforcement Vs. Deepak Mahajan and another, (1994) 3 SCC 440 has explained .
the word 'arrest' as under:-
"46. The word 'arrest' is derived from the French word 'Arreter' meaning "to stop or stay" and signifies a restraint of the person. Lexicological, the meaning of the word 'arrest' is given in various dictionaries depending upon the circumstances in which the said expression is used. One of us, (S. Ratnavel Pandian, J. as he then was being the Judge of the High Court of Madras) in Roshan Beevi v. Joint Secretary, Government of T.N., 1984 Cri. L.J. 134, had an occasion to go into the gamut of the meaning r of the word 'arrest' with reference to various textbooks and dictionaries, the New Encyclopaedia Britannica, Halsbury's Law of England, A Dictionary of Law by L.B. Curzon, Black's Law Dictionary and Words and Phrases.
On the basis of the meaning given in those textbooks and lexicons, it has been held that:
"The word 'arrest' when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested."
4. In aforesaid pronouncement in Deepak Mahajan's case, referring various Sections in Chapter-V of Cr.P.C., titled 'Arrest of Persons' particularly under Sections 41 to 44, it has been ::: Downloaded on - 30/05/2020 20:23:41 :::HCHP 3 Cr.M.P. (M) No. 743 and 744 of 2020 concluded that Cr.P.C. gives power of arrest not only to Police Officer and a Magistrate but also, under certain circumstances or given situation, to private persons and further that when an accused person appears before the Magistrate or surrenders .
voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law.
5. The Apex Court in Niranjan Singh and another Vs. Prabhakar Rajaram Kharote and others, reported in 1980 (2) CC 559/AIR 1980 SC 785, has observed as under:-
"9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. ... ..."
6. On the basis of pronouncement of the Apex Court in Niranjan Singh's case, this High Court in Karam Dass and 91 others vs. State of H.P., 1995 (1) Siml. L.C. 363, has held that appearance and surrender of accused person in the Court amounts to his custody in the Court and thus, he has to be considered to have been arrested.
7. In the light of aforesaid pronouncements, in the peculiar circumstances prevailing in the State and submissions made by learned counsel for the petitioners, petitioners are permitted to submit themselves to the custody of this Court through Special Judge/Sessions Judge, Hamirpur before 2:00 P.M. and ordered to be arrested and taken to be in custody through Special Judge, Hamirpur, on their appearance and surrender before the said Court, before 2:00 P.M. today itself, failing in appearance and surrender, present petitions shall be dismissed being not maintainable for want of custody of petitioners.
8. In the eventuality of appearance and surrender of petitioners before learned Special Judge Hamirpur before 2:00 P.M., the Special Judge shall take them in custody and report to this Court immediately, telephonically as well as through FAX/Email, subject to further orders passed by this Court thereafter. In case the petitioner fails to appear and surrender before the Special Judge by 2:00 P.M., the said fact also be intimated by the Special Judge to this Court immediately after 2:00 P.M. Registry is directed to place record of file without any delay.
9. List after receiving information from learned Special Judge or at 2:15 P.M., whichever is earlier for further orders after ::: Downloaded on - 30/05/2020 20:23:41 :::HCHP 4 Cr.M.P. (M) No. 743 and 744 of 2020 receipt of report of Special Judge, Hamirpur. Registry to transmit this order immediately to learned Special Judge cum Sessions Judge, Hamirpur."
2. Now, as per information received from learned Special Judge-
.
cum-Sessions Judge, Hamirpur, petitioners, who have appeared and surrendered before him, have been taken in custody.
3. Notice. Mr. Raju Ram Rahi, learned Deputy Advocate General, who is present through Video Conferencing, takes service of notice on behalf of respondent-State and seeks time to file response/status report.
4. Learned counsel for the petitioner has prayed for grant of interim bail till the response/status report is filed by respondent-State, with further submissions that a false case has been fasted upon petitioner and petitioners are ready to join the investigation and furnish bail bonds in consonance with the direction of this Court.
5. For canvassing grant of interim bail to the petitioners, pending consideration these petitions, learned counsel for the petitioners has also submitted that FIR has been lodged after about one month of the alleged incident and incident, as reported, had not occurred and in fact on 18.4.2020 a complaint was lodged by the petitioners against the present complainant in Police Chowki, Jahu for violation of social distancing norms during lockdown/curfew, when about 100 persons had gathered in front of the house of the petitioner during disbursement of rashan by the present complainant, ignoring the danger of spreading of epidemic and petitioners had also reported the matter to Sub Divisional Magistrate (SDM), Bhoranj on 16.5.2020 and a video clip of the incident of violation of 18.4.2020 was also forwarded to him and thereafter, as a counter blast, complainant has lodged FIR on 26th May, 2020 against the petitioners.
6. In the aforesaid circumstances, I find that petitioners have made out a prima facie case for enlarging them on interim bail at this stage, till response/status report is filed by respondent-State, subject to further ::: Downloaded on - 30/05/2020 20:23:41 :::HCHP 5 Cr.M.P. (M) No. 743 and 744 of 2020 order to be passed in bail petitions after considering the status report and response. Accordingly, petitioners are ordered to be released on bail at this stage, on their furnishing individual personal bonds in the sum of `30,000/-
.
with one surety each in the like amount to the satisfaction of learned Special Judge-cum-Sessions Judge, Hamirpur, where the petitioners have been taken in custody and also subject to following further conditions:-
i) That the petitioners shall report at Police Station, Bhoranj, District Hamirpur, Himachal Pradesh on 1.6.2020 at 11 a.m. for interrogation and shall thereafter join the investigation on each subsequent date(s) as and when required by the Investigating Agency, in accordance with law;
ii) That the petitioners shall not directly or indirectly advance any threat, inducement or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer;
iii) That the petitioners shall not tamper with the prosecution evidence, hamper the investigation;
iv) That the petitioners shall not misuse her liberty in any manner; and
v) The petitioners shall not commit an offence similar to the offence of which she is accused or of the commission of which she is suspected.
7. Status report/reply be filed, by obtaining it through E-mail or FAX, on or before the next date of hearing. List for consideration on 4th June, 2020.
8. Registry is directed to transmit copy of this order immediately to learned Special Judge-cum-Sessions Judge, Hamirpur. Petitioners may also obtain copy of this order from website of this High Court.
(Vivek Singh Thakur), th 30 May, 2020 Judge.
(Keshav) ::: Downloaded on - 30/05/2020 20:23:41 :::HCHP