Yog Raj @ Yogi vs State Of Himachal Pradesh

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M.P.(M) No. 2194 of 2023 a/w Cr.MP(M) No. 2199 of 2023 Decided on: 05.09.2023 __________________________________________________________ .

           1. Cr.MP(M) No. 2194 of 2023





             Yog Raj @ Yogi                                                     ......Petitioner
                                      Versus





             State of Himachal Pradesh                                         ......Respondent

           2. Cr.MP(M) No.2199 of 2023
              Farman                                                                 ....Petitioner
                                    Versus





              State of Himachal Pradesh                                         ...Respondent

           Coram                 r

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1 No For the petitioner(s): Mr. Aman Parth Sharma and Mr. Sunil Dutt Gautam, Advocates, in both the petitions.

For the respondent: Mr. Pushpender Jaswal, Addl. A.G. with Mr. Gautam Sood, Mr. Rahul Thakur and Ms. Priyanka Chauhan, Deputy Advocate Generals.

ASI Moti Lal, I/o P.S. Pachhad, District Sirmaur, present in person.

Satyen Vaidya, Judge (Oral).

Both these petitions are being decided by a common order as these arise out of the same FIR and also involve common questions of fact.

Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

2. The petitioners have prayed for grant of bail in case FIR No. 04 of 2023, dated 16.01.2023, under Section 376 IPC and Section 4 of the Protection of Children from Sexual .

Offences Act (for short, "POCSO" Act), registered at Police Station, Pachhad, District Sirmaur, H.P.

3. On 16.01.2023 the above noted case was registered on the complaint of minor victim, when she was medically examined and found to have conceived. The minor victim initially alleged that she had been sexually assaulted by one Shambhu under the pretext of marrying her. As per the child victim, Shambhu had been indulging in sexual activity with her for the last about two years. The case was registered and during investigation, the child victim further disclosed the names of few more persons including the petitioners, who had allegedly indulged with her in sexual activities at different times. Both the petitioners were arrested on 06.02.2023.

4. As per petitioners, they have been falsely implicated in the case. They have no criminal antecedents and have never remained involved in any criminal activity.

Petitioner Yog Raj @ Yogi is permanent resident of Village ::: Downloaded on - 06/09/2023 21:40:40 :::CIS 3 Badhi Bonh Pandhan, Naina Tikker, Tehsil Pachhad, District Sirmaur, H.P. and petitioner Farman is resident of Village Gulabgarh, P.O. Kotribyas, Gulabgarh (141), District .

Sirmaur, H.P. and there is no likelihood of their fleeing from the course of justice. The version of child victim is stated to be concocted and afterthought.

5. On the other hand, the bail petition has been opposed on the ground that the allegation against the petitioners are serious. The child victim has specifically named them to be one of the persons having indulged in sexual intercourse with her during her minority. It is also submitted that in case the petitioners are released on bail, they may tamper with the prosecution evidence.

6. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

7. Learned counsel for the petitioners has submitted that they are in custody since 6.2.2023 and the trial is going to take considerable time before conclusion. He has further submitted that another co-accused in the case named Vijay Sharma has already been released on bail by this Court vide order dated 08.08.2023 passed in Cr.MP(M) No. 1730 of 2023.

8. On 21.7.2023, this Court had directed the Director, SFSL, Junga to submit the report in respect of the samples analyzed in case FIR No. 04 of 2023. In the status report .

dated 5.9.2023, it is revealed that from the evidence analyzed by SFSL, Junga, nothing incriminatory against the petitioners have been found.

9. The petitioners, indisputably, have a right of speedy trial. They have already suffered incarceration for about six months. The SFSL report has been received recently. In these circumstances, the trial is not going to be concluded in near future.

10. Pre-trial incarceration is not the rule. It depends on facts of each case as also the evidence available against the accused. In any case, pre-trial incarceration cannot be punitive. The allegations are required to be proved against the petitioners and as noticed above, the trial is not likely to be concluded within reasonable period of time.

11. Petitioners are permanent resident of District Sirmaur, H.P. The child victim, by now, has attained sufficient maturity and in case the petitioners are found to influence the child victim or in tampering with other evidence ::: Downloaded on - 06/09/2023 21:40:40 :::CIS 5 of the prosecution, the respondent can immediately seek cancellation of the bail. It is not the case of the respondent that in case of release of petitioners on bail, there is any .

likelihood of their fleeing or absconding from the course of justice.

12. Keeping in view the peculiar facts and circumstances of the case, both the petitions are allowed and the petitioners are ordered to be released on bail in case registered vide FIR No. 04 of 2023, dated 16.01.2023, under Section 376 IPC and Section 4 of the POCSO Act, at Police Station, Pachhad, District Sirmaur, H.P., on their furnishing personal bonds in the sum of Rs. 50,000/- each with one surety each in the like amount to the satisfaction of learned trial Court. This order is, however, subject to the following conditions:

i) That the petitioners shall not indulge in any criminal activity and in the event of breach of this condition, the bail granted to the petitioners in this case, shall automatically be cancelled.

ii) That the petitioners shall not leave the territory of India without express leave of Trial Court during the Trial.

iii). That the petitioners shall not directly or indirectly make any inducement, threat or ::: Downloaded on - 06/09/2023 21:40:40 :::CIS 6 promise to any person acquainted with the facts of the case and shall not tamper with the prosecution evidence.

iv) That the petitioners shall regularly attend the trial .

of the case before learned Trial Court and shall not cause any delay in its conclusion.

13. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.

Both the petitions stand disposed of. A copy of this judgment be placed on the file of Cr.MP(M) No. 2199 of 2023.

    5th September, 2023                                  (Satyen Vaidya)
          (GR)                                                Judge








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