Section 161 CrPC statements relevant while determining prima facie case against accused during bail hearing: Supreme Court

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The Supreme Court recently observed that statements made to Police under Section 161 of the Code of Criminal Procedure (CrPC) may not be admissible in evidence, but are relevant for determining whether or not a prima facie case is made out against the accused during his bail plea hearing [Indresh Kumar v. State of Uttar Pradesh and Another].

A Division Bench of Justices Indira Banerjee and V Ramasubramanian noted that while granting bail to a person accused of rape and murder of a 11-year-old, the High Court ignored the materials on record including incriminating statements of witnesses under Sections 164/161 of CrPC.

“Statements under Section 161 of CrPC may not be admissible in evidence, but are relevant in considering the prima facie case against an accused in an application for grant of bail in case of grave offence,” the Court said.

The bench was hearing an appeal assailing the decision of the Allahabad High Court which had granted bail to the respondent-accused for the alleged rape and murder of a 11-year-old child who was the daughter of the appellant.

The accused had been booked for offences under Sections 302 [murder], 201 [causing disappearance of evidence], 376 [rape] read with 120B [criminal conspiracy] of the Indian Penal Code (IPC) and under Sections 5 and 6 of the Protection of Children from Sexual Offences Act (POCSO Act).

While setting aside the bail order passed by the High Court, the top court noted that the allegations against the respondent-accused were grave, and the punishment severe and it cannot be said that there were no materials on record at all.

“The offence alleged against the respondent-accused of rape and cold-blooded murder of an eleven year old child is heinous and dastardly. The conduct of killing a child to avoid getting caught of the offence, inter alia, of rape and then burial of the child as also her stained clothes and other articles under the soil to cause disappearance of evidence and evade apprehension for the offence of murder is indicative of a tendency to evade the process of law. It is possible that the respondent-accused might flee to evade the process of law,” the Court observed.

The Court also noted that High Court ignored the statements of witnesses under Section 164/161 CrPC.

The Court was, therefore, of the view that bail granted to the accused was without considering the heinous nature of the allegations against him, the gravity of the offence alleged and severity of the punishment in the event of ultimate conviction.

The Bench noted that the order of High Court incorrectly stated that bail was being granted after considering all facts and circumstances, nature of the allegations, gravity of the offence, severity of the punishment and the evidence appearing against the accused.

“If the High Court had seriously considered the gravity of the offence, there would have been some indication of what was the apparently extenuating circumstance, which entitled the respondent-accused to bail. Ex facie, the allegations are grave, the punishment is severe and it cannot be said that there are no materials on record at all,” the Court said.

The order of the High Court was, therefore, set aside.

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