Himachal Pradesh High Court Weekly Roundup December 11 - December 17, 2023

Sushil Kumar Vs State of Himachal Pradesh 2023 LiveLaw (HP) 75

Geeta Kashyap v. State of Himachal Pradesh (and connected matter) 2023 LiveLaw (HP) 76

Dildar Khan @ Sonu Khan Vs State of H.P 2023 LiveLaw (HP) 77

State of H.P. Vs Subhash Chand 2023 LiveLaw (HP) 78

Ranjeet Kumar Vs State of H.P. & Ors 2023 LiveLaw (HP) 79

Sh. Sanjeev Kumar alias Sanjeev Raizada Vs Sh. Yudhvir Singh 2023 LiveLaw (HP) 80

Judgments/Orders:

Section 21 POCSO Act Bailable, Pre-Arrest Bail Not Maintainable: Himachal Pradesh High Court

Case Title: Sushil Kumar Vs State of Himachal Pradesh

Citation: 2023 LiveLaw (HP) 75

The Himachal Pradesh High Court clarified that an offence under Section 21 of the Protection of Children from Sexual Offences (POCSO) Act is a bailable offence and hence an application for pre-arrest bail under Section 438 CrPC is not maintainable in such cases.

Justice Rakesh Kainthla observed,

“...a person accused of a bailable offence is entitled to bail as a matter of right. Therefore, the present petition is not maintainable and the same is dismissed.

Bail Proceedings Can't Be Turned Into Recovery Proceedings In Monetary Disputes: Himachal Pradesh High Court

Case Title: Geeta Kashyap v. State of Himachal Pradesh (and connected matter)

Citation: 2023 LiveLaw (HP) 76

Recognizing that the issue of recovering money is a civil matter and should be addressed through appropriate legal channels, and not in criminal proceedings, the Himachal Pradesh High Court reiterated that bail proceedings should not be utilized as a means for recovery in monetary disputes.

Allowing the bail applications of accused/petitioners, Justice Rakesh Kainthla observed,

“..The bail proceedings cannot be used to recover the amount advanced by the informant..It appears from the status report that the informant had invested the money in gold through Geeta but he has projected a different version that he had advanced the money as a help to Geeta. If the money was advanced as a help and is not being returned, it will give rise to civil liability and not criminal liability”.

Proclaimed Offenders Not Entitled To Privilege Of Pre-Arrest Bail: Himachal Pradesh High Court

Case Title: Dildar Khan @ Sonu Khan Vs State of H.P

Citation: 2023 LiveLaw (HP) 77

Highlighting the extraordinary nature of pre-arrest bail and its sparing use the Himachal Pradesh High Court reiterated that once a person is declared a proclaimed offender he is not entitled to the liberty of Pre-Arrest bail.

Justice Rajesk Kainthala made these observations in a case centered around petitioner Dildar Khan alias Sonu Khan, who was accused of possessing a commercial quantity of heroin (333.63 grams) found in a backpack on an HRTC bus. Khan, however, absconded after the police initiated the investigation and was declared a proclaimed offender by the Court.

Probation Of Offenders Act | Benefit Cannot Be Granted In An Offence Involving Rash & Negligent Driving: Himachal Pradesh High Court

Case Title: State of H.P. Vs Subhash Chand

Citation: 2023 LiveLaw (HP) 78

Denying the benefit of the Probation of Offenders Act to a convict charged with rash and negligent driving, the Himachal Pradesh High Court ruled that the benefit of the Act cannot be granted to a person convicted of causing death by negligence punishable under Section 304-A of IPC.

Justice Rakesk Kainthla made these observations while deciding on an application under which the applicant/convict was seeking his release/probation under Section 4 of the Probation of Offenders Act, 1958.

POCSO Cases Can Be Quashed If Victim & Accused Reach A Genuine Compromise, Are Leading Happy Married Life: HP High Court

Case Title: Ranjeet Kumar Vs State of H.P. & Ors.

Citation: 2023 LiveLaw (HP) 79

The Himachal Pradesh High Court ruled that Protection of Children from Sexual Offences Act (POCSO) cases can be quashed if the victim and the accused reach a genuine compromise and are leading a happy married life.

Answering a reference from a single Judge of the Court as to whether the High Court could quash an FIR based on a compromise in a POCSO case by invoking its powers under Section 482 CrPC the Division Bench of Justices Tarlok Singh Chauhan and Satyen Vaidya observed,

“..In a Case of instant kind where the victim had earlier alleged that she had been subjected to sexual assault but then has later on settled the dispute and has got married to the accused and is leading a peaceful life. Invariably, in such like cases, the Court after being satisfied would not allow the prosecution to continue, which would only result in disturbances of their happy family life”.

Parties Barred From Using Court To 'Create Evidence' By Seeking Appointment Of Commissioner Under O26 R9 CPC: HP High Court

Case Title: Sh. Sanjeev Kumar alias Sanjeev Raizada Vs Sh. Yudhvir Singh

Citation: 2023 LiveLaw (HP) 80

The Himachal Pradesh High Court ruled that a party cannot use the court to "create evidence" through the appointment of a commissioner by taking recourse to Order 26 Rule 9 CPC.

Dismissing a petition under Article 227 of the Constitution of India in terms of which the petitioner had contested the dismissal of his application under Order 26, Rule 9 by the trial court Justice Ajay Mohan Goel observed,

“Petitioner cannot be permitted to call upon the Court by way of appointment of a Local Commissioner to create evidence to prove his allegation as to whether part of the suit land mentioned in the application filed under Order 26, Rule 9 of the Code of Civil Procedure stood encroached upon by the defendant or not”.