IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 224 of 1996. Decided on: 16.6.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Karan Bahadur. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. with Mr. Anil Jaswal, Deputy Advocate General. For the Respondent : Nemo. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 18.4.1995, passed by the learned Sessions Judge, Shimla, District Shimla, in the case S.Tr.No. 47-Kullu/7 of 1994, acquitting the respondent-accused for the alleged involvement for the offence, under Section 302 IPC. 2. Criminal appeal was admitted and bailable warrants were ordered to be issued in the sum of Rs. 5,000/- with one surety of like amount. When none appeared, thereafter, non-bailable warrants were issued to secure the presence of respondent/accused, vide order dated 4.3.2010 returnable for 8.4.2010. On 8.4.2010, it was noticed that when accused had 1 Whether reporters of the local papers may be allowed to see the judgment? 2 furnished bail bonds in the Court, one of the witnesses to the bond was Shri Dhayan Singh Verma, Vice President, Gram Panchayat, Kungas/Kungal, Block Anni, District Kullu (H.P.). Surety bond was furnished by one Jeewan Ram, son of Shri Mohan Lal, village Soidhar, P.O. Dalash, Tehsil and Police Station, Anni, District Kullu and in this surety bond also, Dhayan Singh Verma was one of the witnesses. In such circumstances, Superintendent of Police, Kullu was directed to depute a special police party and make investigation and enquire from the above two persons about the whereabouts of the accused. Accordingly, Shri K. K. Indoria, Superintendent of Police, Kullu has filed an affidavit, dated 21.5.2010, disclosing that in compliance to order of this Court for issuance of the non-bailable warrant, ASI Prem Lal Incharge Police Post, Luhari was deputed to trace out accused Karan Bahadur. The matter was investigated and enquired from Jiwan Lal, Jawala Ram, Mohar Singh, Dhayan Singh, who stated that Karan Bahadur, the alleged accused was Nepali. Jiwan Lal further disclosed that there is no person in the name of Yashpal Bharti in village Dhamog, Post Office Dalash, Tehsil Anni. The statement of Dhayan Singh, son of Shri Shyam Lal, who is stated to be one of the witnesses in the surety bond of accused Karan Bahadur, was also recorded. According to his statement, he is not aware about the whereabouts of the accused Karan Bahadur. As per statement of Smt. Lajwanti, wife of Bansi Lal presently President of Gram Panchayat, Diggidhar, accused Karan Bahadur is not residing within the jurisdiction of her Panchayat. As per affidavit of the Superintendent of Police, Kullu, non-bailable warrants could not be served. 3 3. The learned counsel has brought to our notice that order dated 22.10.2008 passed in Criminal Appeal No. 338 of 2006 as well as order dated 20.10.2008 passed in Criminal Appeal No. 75 of 2007 reveal that accused/respondent was from Nepal and despite endeavour having been made on the part of the Registry of this High Court and endeavour to serve the warrants on respondent/accused, no success was achieved. Even endeavour made to the Ministry of Home Affairs, New Delhi to convey and serve the warrants to the Embassy of India in Kathmandu (Nepal), no success was achieved to ensure the presence of accused/respondent in Criminal Appeal No. 75 of 2007 as well as Criminal Appeal No. 338 of 2006. 4. This court in such circumstances has arrived at an opinion that since whereabouts of respondent/accused in those Criminal Appeals was not known to the State, it was not virtually possible to take coercive steps to secure the presence of the respondent and it also could not be gathered whether accused is dead or alive and despite endeavour, whereabouts of respondent/accused could not be ascertained. In such circumstances, appeals were dismissed for non-prosecution, giving liberty to the State Government to apply for revival of the appeals in case they can procure the presence of the accused. 5. The circumstances of the present case are also of the same nature where despite endeavour on the part of the State Government, the presence of accused/respondent is not being secured and status position of the accused/respondent is also not known, therefore, the present appeal is dismissed for non- 4 prosecution with the observation that liberty is open to the State Government to apply for revival of the appeal in case the State is able to secure the presence of the accused. The appeal is accordingly dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. June 16, 2010. (cr)