Yog Raj @ Yogi vs State Of Himachal Pradesh
2023 Latest Caselaw 12915 HP

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 __________________________________________________________

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           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

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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

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

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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

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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

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

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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

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

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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