Allowed

Pankaj Kumar v. State of Hp

Himachal Pradesh HC14 Jun 2024CRMPM/781/2024

Case brief

AI extract

What is this about?

The court granted bail to the petitioner in a criminal conspiracy and murder case, holding that the prosecution's reliance on an inadmissible co-accused statement and call details did not establish a prima facie case sufficient to deny bail. The petitioner was ordered released on bail with specific conditions.

What did the court decide?

Petitioner released on bail in the sum of ₹50,000 with two sureties of the like amount, subject to specific conditions.

Pankaj Kumar Vs State of Hp — Murder and Culpable Homicide | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP (M) No. 781 of 2024 Reserved on: 28.05.2024 Date of Decision: 14.06.2024.

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Pankaj ...Petitioner

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Versus

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State of Himachal Pradesh ...Respondent

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Coram

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Hon’ble Mr. Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

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For the Petitioner : Mr. Sanjeev Kumar Suri, Advocate. For the Respondent : Mr. Lokender Kutlehria, Additional Advocate General.

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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 the petitioner is a permanent resident of District Hamirpur. He 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, 120-B and 201 of the Indian Penal Code (IPC) and Section 25 of

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

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the Arms Act, registered at Police Station Palampur, District Kangra, HP. The petitioner is innocent and his custody is not required for the investigation. The police have completed the investigation and filed the challan before the learned Trial Court. The police could not collect any evidence to connect the petitioner with the commission of crime. The police are relying upon the statement made by the co-accused which is not admissible. No criminal case is pending against the petitioner. He would abide by all the terms and conditions which may be imposed by the Court. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

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The petition was opposed by filing a reply denying the contents of the petition. It was asserted that the petitioner is involved in the commission of a heinous offence that has a detrimental impact on the social order and public interest. The petitioner was found actively involved in the commission of the offence. The petitioner had staged criminal conspiracy to achieve the common object of the commission of offences punishable under Sections 307, 120-B, 325, 364, 511, and 201 of IPC and Sections 25 and 27 of the Arms Act. The petitioner had called co-accused Virender Kumar alias Vicky (his cousin) 49

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times. Similarly, Virender had called the petitioner 101 times. They had talked to each other on the date of the incident. He (petitioner) had also called co-accused Savitri on her mobile number and she had also called him 35 times. He was found present near the scene of crime at Saurav Van Bihar Bandla, Chachian and Bagora as per the call details record and tower location. The evidence is to be led before the learned Trial Court. Therefore, it was prayed that the present petition be dismissed.

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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. The police are relying upon the statement made by Virender Kumar alias Vicky which is legally inadmissible. The petitioner and Virender Kumar are related to each other and the conversation between them was natural. There is no legally admissible evidence to connect the petitioner with the commission of a crime. Hence, it was prayed that the

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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 talked to his co-accused multiple times. His tower location was found near the scene of the crime. These circumstances clearly show his involvement with the commission of crime. Hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions at the bar and have gone through the records carefully.

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The parameters for granting bail were considered by the Hon’ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak , 2023 SCC OnLine SC 1059, wherein it was observed 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

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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 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 has 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 of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to

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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 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; (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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The status report shows that the police are relying upon the statements made by the co-accused to implicate the petitioner. There is a force in the submission of learned counsel for the petitioner that the statement made by the co-accused is not admissible in evidence. 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-

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accused will be inadmissible because of Section 25 of the Indian

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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, which 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 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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Therefore, no advantage can be derived by the prosecution from the statement made by the co-accused.

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The police also relied upon the call details to show that the petitioner had talked to the co-accused and Savitri. Admittedly, Virender Kumar alias Vicky is the cousin of the petitioner. Therefore, there is nothing unusual in the petitioner talking to him. Merely because the petitioner was in touch with Savitri without any further detail cannot lead to an inference of criminal conspiracy as is sought to be drawn by the prosecution.

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It was laid down by this Court in Dinesh Kumar @ Billa Versus State of H.P. 2020 Cri.L.J.4564 that a confession of the co-accused and the phone calls are not sufficient to deny bail to a person.

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This position was reiterated in Saina Devi vs. State of Himachal Pradesh 2022 Law Suit (HP) 21 1 , wherein it was

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observed:-

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“ [16] In the facts of the instant case also the prosecution, for implicating the petitioner, relies upon firstly the confessional statement made by accused Dabe Ram and secondly the CDR details of calls exchanged between the petitioner and the wife of co-accused Dabe Ram. Taking into consideration, the evidence with respect to the availability of CDR details involving the phone number of the petitioner and the mobile phone number of the wife of coaccused Dabe Ram, this Court had considered the existence of a prime facie case against the petitioner and had rejected the bail application as not satisfying the conditions of Section 37 of NDPS Act.

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[17] Since, the existence of CDR details of accused person(s) has not been considered as a circumstance sufficient to hold a prima facie case against the accused person(s), in Pallulabid Ahmad's case (supra), this Court is of the view that petitioner has made out a case for maintainability of his successive bail application as also for grant of bail in his favour.

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[18] Except for the existence of CDRs and the disclosure statement of the co-accused, no other material appears to have been collected against the petitioner. The disclosure made by the co-accused cannot be read against the petitioner as per the mandate of the Hon'ble Supreme Court

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in Tofan Singh Vs State of Tamil Nadu, 2021 4 SCC 1 . Further, on the basis of aforesaid elucidation, the petitioner is also entitled to the benefit of bail.

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A similar view was taken by this Court in Dabe Ram

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vs. State of H.P., Cr.MP(M) No. 1894 of 2023, decided on 01.09.2023, Parvesh Saini vs State of H.P., Cr.MP(M) No. 2355 of 2023, decided on 06.10.2023 and Relu Ram vs. State of H.P. Cr.MP(M) No. 1061 of 2023, decided on 15.05.2023,

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Thus, there is prima facie insufficient material at this stage to connect the petitioner with the commission of offences punishable under Sections 307, 120-B, and 201 of the IPC and Section 25 of the Indian Arms Act. Therefore, the petitioner deserves to be released on bail.

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In view of the above, the petitioner is ordered to be released on bail in the sum of ₹50,000/- with two sureties of the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions: -

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(i) The petitioner will join the investigation as and when directed to do so by means of a written hukamnama.

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

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(iii) The petitioner shall attend the trial in case a charge sheet is presented against him and will not seek unnecessary adjournments.

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(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of intending visit to the SHO, the Police Station concerned and the Trial Court.

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(v) 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 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 expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

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The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

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( Rakesh Kainthla) Judge

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14^th June, 2024 (Chander)

Pankaj Kumar v. State of Hp

Case brief

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Pankaj Kumar v. State of Hp

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