The Punjab and Haryana High Court has reaffirmed that pre-trial detention cannot be sustained solely on the basis of a co-accused’s disclosure statement when the accused’s role is peripheral and no direct evidence links them to the principal offence. This ruling reinforces the principle that bail must be granted where the accused’s involvement is remote, the trial is protracted, and the evidence against them is circumstantial and uncorroborated.
Background & Facts
The Dispute
The petitioner, Malkeet Singh @ Samar, is accused in connection with the fatal shooting of Rakesh Kumar during a snatch theft on 27 October 2023 in Amritsar. The complainant, Avinash Malhotra, was the pillion rider on the victim’s motorcycle when three assailants on a bike snatched his bag. The driver of the bike fired a shot, killing Rakesh Kumar. A .32 bore cartridge and a lead bullet were recovered from the scene.
Procedural History
- 28.10.2023: FIR No. 217 registered under Sections 302, 34, 25, and 27 of the Arms Act at Civil Lines Police Station, Amritsar.
- 03.11.2023: Accused Suraj, Danish Gill, and Rajinder Singh @ Ashu, arrested in a separate case (FIR No. 216), gave disclosure statements implicating themselves and the petitioner.
- 09.11.2023: Petitioner and co-accused Sarabjit Singh @ Sonu Cylinder were formally arrested via production warrant from custody in FIR No. 184/2023.
- Post-arrest: Petitioner was interrogated and admitted to providing a country-made pistol to Suraj upon request. Offences under Section 379(b)(2) read with Section 120B IPC and Section 29(2) Arms Act were added.
- Trial status: Only five prosecution witnesses examined; trial expected to take years.
Relief Sought
The petitioner sought regular bail, arguing that his role was limited to supplying a weapon, with no evidence linking him to the planning or execution of the murder. He contended that the sole basis of his involvement is the disclosure statement of co-accused Suraj, which is inadmissible as substantive evidence under Section 27 of the Evidence Act and lacks corroboration.
The Legal Issue
The central question was whether pre-trial incarceration can be justified against an accused whose alleged role is confined to facilitating the supply of a weapon, where the only evidence linking them to the homicide is an uncorroborated disclosure statement of a co-accused, and the complainant has not named them in their testimony.
Arguments Presented
For the Petitioner
Learned counsel argued that the petitioner’s involvement is strictly that of a facilitator, not a co-conspirator or active participant in the murder. The complainant’s sworn deposition, placed on record, makes no mention of the petitioner. The disclosure statement of Suraj, upon which the prosecution relies, is not admissible as evidence against the petitioner under Section 30 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which mirrors the exclusionary rule under Section 27 of the Evidence Act. Further, co-accused Suraj and Danish Gill had already been granted bail, and parity demanded similar relief. The petitioner had been in custody since 11 November 2023, and the trial’s slow progress rendered continued detention unjust.
For the Respondent
The State contended that the petitioner’s act of supplying the weapon used in the murder was integral to the commission of the offence. Suraj’s disclosure implicated the petitioner as the source of the firearm and claimed the crime was committed at the petitioner’s behest. The gravity of the offence - murder under Section 302 IPC - and the seriousness of aiding in the use of an illegal firearm warranted denial of bail. The State argued that the petitioner’s role was not merely passive but instrumental in enabling the lethal act.
The Court's Analysis
The Court undertook a rigorous assessment of the nature of the petitioner’s alleged involvement. It emphasized that while the supply of a weapon in a homicide case is a serious offence, it must be distinguished from direct participation in the act of killing. The Court noted that the complainant’s testimony, the only eyewitness account, did not mention the petitioner at all. The prosecution’s case against the petitioner rested entirely on the disclosure statement of Suraj, which, as the Court observed, cannot be treated as conclusive proof.
"The linkage sought to be established between the petitioner and the act of supply of arms, primarily rests on the disclosure statement of the co-accused and circumstantial inferences, which is that of a conduit or a facilitator in the purported procurement of firearms, which is a distinct and remote offence from the direct commission of offences punishable under Section 302 of IPC."
The Court further held that the gravity of the offence alone cannot override the principles of personal liberty under Article 21 of the Constitution, particularly where the accused’s role is not direct and the trial is progressing at a glacial pace. With only five witnesses examined over a year and no material evidence placing the petitioner at the scene or proving motive, the Court found no justification for continued detention. The Court also drew a parallel with the bail granted to co-accused Suraj and Danish Gill, noting that denying bail on the same facts would violate the doctrine of parity.
The Court clarified that its observations were strictly confined to the bail stage and did not prejudge the merits of the case or the admissibility of evidence at trial.
The Verdict
The petitioner won. The Court held that pre-trial incarceration cannot be sustained where the accused’s role is limited to facilitating the supply of a weapon, the sole incriminating evidence is an uncorroborated disclosure statement of a co-accused, and the complainant has not implicated the accused. The petitioner was ordered released on bail upon furnishing personal and surety bonds, subject to conditions imposed by the trial court.
What This Means For Similar Cases
Disclosure Statements Alone Cannot Justify Denial of Bail
- Practitioners must challenge pre-trial detention where the prosecution relies solely on disclosure statements under Section 27 of the Evidence Act or Section 27 BNSS without independent corroboration.
- Courts must distinguish between direct participation and facilitative roles when applying the triple test for bail (nature of accusation, likelihood of flight, risk of tampering).
Parity in Bail Grants Is Legally Binding
- Where co-accused with similar or greater involvement are granted bail, denial to another accused on identical facts violates Article 14.
- Counsel should cite this judgment to argue for bail in multi-accused cases where roles are analogous.
Remote Facilitation Does Not Equate to Principal Offence
- Supplying a weapon without evidence of intent to kill, conspiracy, or presence at the scene constitutes a separate, lesser offence.
- Courts must avoid conflating abetment with direct commission under Section 34 IPC unless clear evidence of common intention exists.
