Pramod Kumar vs State Of Nct Of Delhi
2011 Latest Caselaw 5603 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   BAIL APPL. No.1380/2011

                                  Date of Decision : 21.11.2011

PRAMOD KUMAR                                  ...... Petitioners
                               Through: Mr.Siddharth    Luthra,
                                        Sr.Adv. with Mr.Ratan
                                        K.Singh,     Mr.Gaurav
                                        Dudeja,      and    Mr.
                                        Yashwant         Singh,
                                        Advocates.

                                Versus

STATE OF NCT OF DELHI                     ......     Respondent

Through: Mr.Sunil Sharma, APP Mr.K.L.Tiwari, Mr.Vinod Tiwari and Mr.Pankaj Singh, Advocates.

CORAM :

HON'BLE MR. JUSTICE V.K. SHALI

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in the Digest ?

V.K. SHALI, J.(oral)

1. This is a petition for grant of regular bail in respect of

FIR No.62/2011 u/s 365 IPC registered by PS Pul Prahlad

Pur in respect of which charge-sheet has already been

filed in a competent Court. It has been stated in the

charge-sheet that the matter is being investigated

further in terms of Section 173 (8) Cr.P.C. as

whereabouts of the missing person Ashutosh Kumar have

still not been traced and supplementary charge-sheet

may be filed.

2. Briefly stated facts of the case are that on 10.03.2011

complainant Jai Prakash lodged a report which was

recorded vide DD entry No.38 at PS Pul Prahlad pur

regarding missing of his son Ashutosh Kumar. He was

stated to be aged around 22 years and working with M/s

Pramod Logistic Services situated at 216-B Land

Container Depot, Tuglakabad, Delhi. Mr. Jai Prakash was

reportedly informed by one Azhar Ali, a roommate of

Ashutosh that the latter did not turn up since

04.03.2011. It may be pertinent to mention here that

the petitioner, Pramod Kumar is the proprietor of M/s

Pramod Logistic Services. After about a week or so, on

18.03.2011 Jai Prakash gave another statement that on

04.03.2011 at about 4:00 PM his son was seen seated in

the car of his employer Pramod Kumar. On the basis of

this information a case of suspected kidnapping of his

son was registered and the matter was investigated.

3. The investigations have revealed the following

circumstantial evidences against the petitioner:

(i) Pramod Kumar made the last call on the mobile of

the victim Ashutosh which showed that the location

of mobile phone of both, the victim as well as the

employer was at ICD, Tuglakabad.

(ii) The last location of the mobile of the victim shows

that it was somewhere near Tigri where the

petitioner is residing.

(iii) The victim was lastly seen with the petitioner in his

car by the co-employees.

(iv) The petitioner did not inform either the parents

of the victim about the missing of their son or his

conduct was not contemporaneously matching with

that of a normal person or an employer who would

have made some sincere efforts to have his

employee located.

(v) The petitioner refused to undergo polygraph test.

4. The investigating agency obtained the call details of the

mobile numbers 991067752 and 9266747649 both

purportedly belonging to the victim Ashutosh and the

mobile number 9910167720 belonging to the petitioner

which confirmed the aforesaid fact that the petitioner had

apart from being last seen in the company of the victim

had also made the last call on one of his mobile numbers.

The victim has also stated to have spoken to her

girlfriend by the name of Parul on two telephone

numbers 9250803934 and 9910800266. The analysis of

these call details showed that Pramod Kumar as has been

stated hereinabove had spoken to the victim lastly at

about 3:27 PM on 04.03.2011 and the victim had also

received call of his girlfriend on his other mobile at 3:35

PM which lasted about six minutes. The victim has

purported to have sent an sms to one mobile number

9311055725 at 8:57 PM. The location of the said

dispatch of the SMS is also shown to be in Tigri where

the petitioner resides.

5. On the basis of the aforesaid facts the prosecution has

arrested the petitioner on 07.09.2011 and after obtaining

two days police remand he has been remanded to judicial

custody and a charge u/s 365 IPC has been filed. It may

also be pertinent to mention that the petitioner had filed

two bail applications one before the learned MM and the

other before Additional Sessions Judge, South East,

Saket, and both of which were rejected on 12.09.2011

and 19.09.2011 respectively. The complainant had also

filed a writ petition in the High Court for issuance of writ

of Habeas Corpus which was disposed of after the arrest

of the present petitioner.

6. The learned senior counsel Mr.Siddharth Luthra has

prayed for bail of the present petitioner on the ground

that there is absolutely no evidence against the present

petitioner warranting the continued incarceration of the

petitioner in jail. It is contended by him that in any case

the petitioner is charge-sheeted for an offence u/s 365

IPC which carries maximum sentence of seven years and

the nature of evidence which has been gathered against

the petitioner is at best only circumstantial which is

inconclusive and incomplete so far as the complete chain

of events is concerned and therefore the petitioner

deserves to be enlarged on bail. Even while analyzing

the circumstantial evidence it was contended by Mr.

Siddharth Luthra, the learned senior counsel that the

prosecution has stated that the petitioner did not

undergo polygraph test and the non submission of the

petitioner to the polygraph test has been held as a

circumstance against the petitioner.

7. It was contended that the Supreme Court in Selvi & Ors.

Vs. State of Karnataka (2010) 7 SCC 263 has

categorically observed that the polygraph test,

tantamounts to the violation of the constitutional right of

the accused under Article 20 (3) of the Constitution and

therefore this circumstance of refusing to undergo lie

detector test could not be relied upon against the

petitioner.

8. It was contended by Mr. Luthra, the learned senior

counsel that the other evidence is the 'SMS' purported to

have been received by Mr.Ram Kumar at about 8:57 PM

from the victim. But the said sms is stated to have been

deleted by Mr.Ram Kumar and it is contended that if the

investigating agency wanted it could have very well

retrieved the message from the service provider but this

has deliberately not been done.

9. It was also contended that Sumit Mewati who is the

witness to the effect that he had seen the victim in the

company of the petitioner is testifying something which

the petitioner himself is relying upon. It is stated that it

is the case of the petitioner that he had been with the

victim around the time in question in his car where he

had handed over the money to him with a view to attend

to the official work. It is therefore contended that this

cannot be taken as a circumstance against the petitioner.

It is also contended by Mr.Luthra that the petitioner has

roots in the society and there are absolutely no chance of

his tampering with the evidence or fleeing away from the

processes of law, and therefore, he be enlarged on bail.

10. As against this learned APP has vehemently opposed the

grant of bail to the petitioner. It has been contended by

him that in case the petitioner is released on bail he will

influence the witnesses, one of whom happens to be his

employee only. This witness has already made a

statement u/s 161 Cr.P.C. to the effect that they had

seen the victim in the company of the present petitioner.

Therefore, it is stated that the petitioner may not be

enlarged on bail. Further it is stated that further

investigation is still being conducted to find out the

whereabouts of the victim and it is possible that once he

is released on bail, he may meddle with the evidence.

11. I have carefully considered the submissions made by the

learned counsel for the parties and gone through the

statement of the witnesses recorded u/s 161 Cr.P.C. like

Deepak, Ram Kumar, Sumit Mewati as well as Parul. The

case is still at the threshold as the charges against the

petitioner are yet to be framed and the evidence is yet to

be recorded. In my considered opinion the release of the

petitioner on bail at this stage will result in an attempt to

influence the witnesses specially the ones who are

working with the petitioner. Moreover, the conduct of

the petitioner in the investigation has not at all been co-

operative. This is reflected from the statement of Parul,

girl friend of the victim, who has stated that despite the

fact that she had approached the petitioner who

happened to be the employer of the victim in order to get

the information regarding the whereabouts of her friend

Ashutosh but the answers which were given to her were

totally evasive.

12. Ram Kumar another witness has also testified that the

victim had actually resigned and joined some other

company but after persuasion he had been made to re-

join the company M/s Pramod Logistic Services. The

victim is purported to have revealed to his uncle Ram

Kumar that Pramod was not treating him well and was

threatening him consistently. The location of mobile

phone of the victim both at the time when the message

is purported to have been received by him from Ram

Kumar and at the time when the last call was made on

his cell phone or at the time of his disappearance clearly

indicate that something is being hidden by the present

petitioner and he is not truthful. The victim has still not

been located, dead or alive and the case is based on

circumstantial evidence against the petitioner. I feel that

in case the petitioner is released on bail at this stage

when material witnesses are yet to be examined, he is

likely to influence the witnesses especially those who are

either working under him. I accordingly dismiss the

petition of the petitioner at this stage; however, the

petitioner shall be free to file a fresh application for bail

after the recording of the statement of the material

witnesses.

13. Dismissed.

V.K. SHALI, J.

NOVEMBER 21, 2011 mr