Vikram alias Vicky Vs State of Hp

For the Petitioner : Mr. Sanjeev Kumar Suri, Advocate. For the Respondent : Mr Lokender Kutlehria, Additional Advocate General with ASI Gopal Krishan, IO PS Palampur, H.P.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking regular bail. It has been asserted that petitioner was falsely implicated by the police in FIR No.142 of 2023, dated 30.11.2023, for the commission of offences punishable under Sections 307, 364, 511, 120-B and 201 of the Indian Penal Code (in short ‘IPC’) and Sections 25 and 27 of the Arms Act registered at Police Station Palampur, District Kangra, H.P. The petitioner is innocent and he was falsely implicated. The

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

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investigation is complete and the charge sheet has been filed before the Competent Court. The petitioner is not required for investigation and no recovery is to be effected from him. The petitioner was apprehended based on the statement made by the co-accused, which is not admissible. He has been behind the bars since 30.11.2023. No fruitful purpose would be served by detaining him in judicial custody; hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

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The petition is opposed by filing a status report asserting that the informant made a statement before the police that he was working as a Driver in Sanjay Farm, Latwala. He was called by Amit on 29.11.2023 at 9:00 pm to attend the Birthday Party of Amit’s daughter. The informant and Gopal Pandey went to the room of Amit in a vehicle bearing registration No. HR26DN-4080. Amit suggested that the party should be held at Saurabh Van Bihar. All of them went to Saurabh Van Bihar. They were returning after having a party at about 11:00 pm. A white vehicle was found parked near Gallu. A person shot at the informant with a gun. The informant sustained injuries on the face and the neck. Gopal Pandey sustained injuries on his back

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and the head. Amit had called someone and the informant suspected that he was responsible for the fire. The police registered the FIR and conducted the investigation. The police apprehended Amit Kumar, who revealed on inquiry that he and Virender@Vicky knew the informant and his wife. Virender@Vicky was told by Amit that the money could be kept in the farmhouse. Amit, Savitri and Virender@Vicky entered into the conspiracy to abduct the informant. Amit called the informant on the pretext of the Birthday Party of his daughter. They had entered into a conspiracy to abduct the informant during the night. Amit had informed his co-accused Kala, Pankaj, Shivam and Vikram@Vicky about the location of the informant. All of them executed the plan made by them. The police arrested the other accused including the present petitioner. As per the call detail record, the petitioner had shut down his phone on 28.11.2023 at 6:20 pm near Pathankot and had switched it on at 5:36 am on 30.11.2023. The petitioner revealed on inquiry that he was told by Varinder Singh coaccused to accompany him to the house of Shivam. All the accused were present on the spot and the petitioner and Pankaj had put the stones on the way to block the passage. The charge

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sheet has been filed and the matter is listed for consideration of charge. Hence, the status report.

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I have heard Mr. Sanjeev Kumar Suri, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State.

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Mr. Sanjeev Kumar Suri, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. There is no legally admissible piece of evidence against the petitioner except a statement made by the co-accused, which is inadmissible evidence. The petitioner is in judicial custody for about one year. The challan has been filed and no useful purpose would be served by detaining the petitioner in judicial custody. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State submitted that the petitioner was involved in the commission of a heinous offence and he should not be released on bail. Hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions

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made at the bar and have gone through the records carefully.

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The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar 2023 INSC

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761:2023 SCC OnLine SC 1059 as under: -

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“12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

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(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

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(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

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(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

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(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of

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there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

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13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

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“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged with having committed a serious offence. Any order devoid of such reasons would suffer from nonapplication of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

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( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

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(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124] .)”

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A similar view was taken in State of Haryana vs Dharamraj 2023INSC784: 2023 SCC Online 1085, wherein it was observed:

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“7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus:

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‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction;

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(iv) danger of the accused absconding or fleeing if released on bail;

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(v) character, behaviour, means, position and standing of the accused;

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(vi) likelihood of the offence being repeated;

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(vii) reasonable apprehension of the witnesses being influenced; and

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(viii) danger, of course, of justice being thwarted by grant of bail.’

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A perusal of the status report shows that the case against the petitioner is based upon the statement made by the co-accused implicating the petitioner as well as the statement made by the petitioner during the investigation. The police have also relied upon the call details record to show the involvement of the petitioner. It was laid down by the Hon’ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a statement made by co-accused during the investigation is hit by Section 162 of Cr.P.C. and cannot be used as a piece of evidence. Further, the confession made by the co-accused is inadmissible because of Section 25 of the Indian Evidence Act. It was observed at page 568: -

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“44. Such a person viz. person who is named in the FIR, and therefore, the accused in the eye of the law, can indeed be questioned and the statement is taken by the police officer. A confession, that is made to a police officer, would be inadmissible having regard to Section 25 of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act would also be inadmissible. A confession unless it fulfils the test laid down in Pakala Narayana Swami [Pakala Narayana Swami v. King

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Emperor, 1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47] and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 CrPC. Therefore, even if a statement contains admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC.”

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Similarly, it was held in Surinder Kumar Khanna vs.

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Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC 271 that a confession made by a co-accused cannot be taken as a substantive piece of evidence against another co-accused and can only be utilized to lend assurance to the other evidence. The Hon’ble Supreme Court subsequently held in Tofan Singh Versus State of Tamil Nadu 2021 (4) SCC 1 that a confession made to the police officer during the investigation is hit by Section 25 of the Indian Evidence Act. Therefore, no advantage can be derived by the prosecution from the confessional statement made by the co-accused implicating the petitioner.

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Thus, the statement made by the co-accused and the confession made by the petitioner relied upon by the prosecution is not legally admissible based upon the evidence and the same cannot be used to detain the petitioner in judicial custody.

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There is no other evidence implicating the petitioner

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for the commission of a crime at this stage. Hence, prima facie, no case is made out for involving the petitioner in the commission of offences punishable under Sections 307, 364, 511, 120B and 201 of the IPC.

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In view of the above, the present petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of ₹ 50,000/- with one surety in the like amount, to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions:

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(i) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

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(ii) The petitioner shall attend the trial and will not seek unnecessary adjournments.

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(iii) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the concerned Police Station and the Court.

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(iv) The petitioner will surrender his passport, if any, to the Court; and

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(iv) The petitioner will furnish his mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media

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accounts, the same will be intimated to the Police/Court within five days from the date of the change.

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It is clarified that if the petitioner misuses the liberty

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or violates any of the conditions imposed upon him, the investigating agency shall be free to move the Court for cancellation of the bail.

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The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits.

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The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent District Jail Dharamshala, District Kangra, H.P. and the learned Trial Court by FASTER.

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( Rakesh Kainthla) Judge

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11^th September, 2024 (saurav pathania)

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Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF KARAN HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e225 878f23c9ea27b281046985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SINGH SERIALNUMBER=f72cf9165791d55ec939375 291962d0d90d094876bd59591426c0b1ce651f 01f, CN=KARAN SINGH GULERIA Reason: I have reviewed this document Location: GULERIA Date: 2024-09-11 15:53:09

Vikram alias Vicky v. State of Hp

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Vikram alias Vicky v. State of Hp

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