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2020 Supreme(HP) 131
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
Piyush Modgil - Appellant
Versus
State Of Himachal Pradesh - Respondent
Criminal Miscellaneous Petition (Main) No. 743 of 2020, 744 of 2020
Decided On : 30-05-2020
Neel Kamal Sharma, Advocate, Raju Ram Rahi, Advocate
The court considered the peculiar circumstances of lockdown and the delay in filing the FIR, and granted interim bail to the petitioners based on a prima facie case made by them.
Headnote:
Arrest - Surrender of Accused - IPC 504, 506, 500 and SC/ST Atrocities Act - Cr.P.C. Sections 41 to 44 - Appearance and Surrender in Court - Custody - Interim Bail
Fact of the Case:
The petitioners sought to surrender themselves in a case involving charges under IPC Sections 504, 506, 500 and SC/ST Atrocities Act due to lockdown restrictions. The court allowed their surrender through the Special Judge, who subsequently took them into custody. The petitioners then sought interim bail, claiming the case against them was false and retaliatory.
Finding of the Court:
The court granted interim bail to the petitioners, considering the delay in filing the FIR, the petitioners' counter-allegations, and the prima facie case made by the petitioners for bail. The court imposed specific conditions for their release.
Issues: Surrender and custody of accused during lockdown, validity of the FIR, prima facie case for interim bail
Ratio Decidendi: The court allowed the surrender of the accused through the Special Judge, considering the peculiar circumstances of lockdown. It granted interim bail based on the delay in filing the FIR and the counter-allegations made by the petitioners.
Final Decision: The petitioners were granted interim bail with specific conditions, and the respondent-State was directed to file a status report. The case was listed for further consideration.
JUDGMENT
Vivek Singh Thakur, J. - 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 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) CriLJ 134 , had an occasion to go into the gamut of the meaning 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 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, (1980) 2 SCC 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 pronouncem
