Crl. Misc. No. –M-12808 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. –M-12808 of 2009 Date of decision: May 25, 2009 Pawan Kumar ….. Petitioner Versus CBI ….. Respondent Present: Mr. Atul Lakhanpal, Senior Advocate with Mr. Aman Pal, Advocate for the petitioner. Mr. Sukhdeep Singh Sandhu, Advocate for the CBI. *** S.S. SARON, J. Heard counsel for the parties. The petitioner seeks pre-arrest bail in a case that has been registered against him for the offences under Sections 120B read with 306 and 506 Indian Penal Code (IPC – for short). The facts leading to the case are that one Subhash was arrested by the officials of CIA Branch, Rohtak on 9.4.2008 in connection with a motorcycle theft case. Said Subhash was produced in Court on 10.4.2008. On 10.4.2008, the wife of said Subhash, who is a victim and the deceased in the present case was called to the CIA Staff by HC Balraj. When she went there, it was alleged that she was raped by HC Balraj and another Constable. The name of the other Constable later came to be known as Constable Silak Ram. The husband of the victim namely Subhash was granted bail in the motorcycle theft case on 24.4.2008. On his release, the victim disclosed about the rape committed on her. Thereafter, the victim made a complaint to the SP Rohtak on 26.4.2008, which complaint was marked to Dheeraj Setia who Crl. Misc. No. –M-12808 of 2009 -2- was posted as Deputy Superintendent of Police (City) Rohtak for inquiry on 29.4.2008. An inquiry was conducted and a report was submitted on 31.5.2008, on the basis of which FIR 341 dated 31.5.2008 was registered at PS City Rohtak for the offences under Sections376-B/34 IPC against the accused – HC Balraj and Constable Silak Ram. The victim – wife of Subhash, thereafter submitted an application dated 7.6.2008 to the IG Rohtak Range, Rohtak for arresting the accused in FIR 341 dated 31.5.2008 for the offences under Sections 376-B/34 IPC. It is stated in the said application that the Police Officials – Balraj and Silak Ram had committed a bad act on her and threatened her that if she disclosed the incident to anybody then they would implicate her husband in a false case and would send him behind the bars. It is alleged that the said officials forcibly raped her by giving fist blows. The said facts were found true by the Inquiry Officer and accordingly a case was registered on the basis of the investigations that were conducted. However, neither her medical examination had been conducted nor the accused had been arrested till date. This was shameful for the Police department. Accordingly, it was requested that the accused be arrested at the earliest and her medical examination be got conducted. After two days i.e. on 9.6.2008, the victim committed suicide and she wrote a suicide note. In the said note, it has been mentioned that the Police officials had committed a bad act with her on 10.4.2008. Thereafter, it is also mentioned that although truth was found out in the inquiry conducted by the Inquiry Officer and on the basis of which the present FIR was registered against them but till that time neither they had been arrested nor she had been subjected to medical examination. Now the Police was trying to help them. It is alleged that they had been continuously threatened and also lured for money, besides being threatened that in case, the case was not withdrawn the result would be bad. She had not been given proper hearing and now she was committing suicide out of depression. It is also mentioned that HC Balraj and Constable Silak Ram would be responsible for the death since they both had ruined her life by committing rape on her. Crl. Misc. No. –M-12808 of 2009 -3- After the death of the victim, on the directions of this Court vide order dated 18.7.2008 passed in CWP 10838 of 2008, the respondent-CBI registered the FIR on 24.7.2008 for the offences under Sections 120-B read with 306 and 506 IPC. The matter was investigated and insofar as the role of the petitioner is concerned, the case of the respondent-CBI is that the petitioner in connivance with the other co- accused i.e. Dheeraj Setia, DSP (City), Rohtak had got FIR 341 dated 31.5.2008 registered for the offences under Sections 376-B/34 IPC only. Section 376-B IPC in fact relates to inter-course by a public servant with a woman in his custody. The said section is not attracted as the victim was not in Police custody and she had never alleged in her complaint that she was in custody of the accused persons. The investigation that was carried out had established that the victim was never arrested by the CIA-I officials. ASI Prahlad Singh had stated that the accused-petitioner and Dheeraj Setia, DSP (City) Rohtak and another co-accused had ordered him to register the FIR under Sections 376-B/34 IPC. The petitioner had got the FIR registered under wrong Sections of law to give benefit to the police officials concerned. Learned Senior counsel appearing for the petitioner has contended that the challan in the case has been filed and therefore, the custody of the petitioner is not required for the purposes of investigation. It is submitted that the FIR for the offences under Sections 376-B/34 IPC was registered on the basis of the report conducted by Sh. Dheeraj Setia, DSP (City), Rohtak who has been granted protection by this Court vide order dated 11.5.2009 passed in Crl. Misc. No. M-11342 of 2009. Therefore, it is submitted that the petitioner be also granted similar protection so as to enable him to apply for regular bail. In response learned counsel for the respondent-CBI has opposed the petition. It is submitted that warrants of arrest have been issued against the petitioner vide order dated 12.5.2009. It is also stated that the conduct of the petitioner is such that he made no efforts to contact the victim even though her mobile number was available with him. Besides, he recorded false case diaries to the effect that the Crl. Misc. No. –M-12808 of 2009 -4- victim was not traceable at the given address. However, the investigation has established that the victim along with her husband namely Subash was residing at the address given in her complaint. She was residing at the said address till she died. After giving my thoughtful consideration to the matter, it may be noticed that the investigation in the case is complete and charge report (challan) has been filed by respondent-CBI in the Court of learned CBI Special Magistrate, Ambala. The arrest warrants against the petitioner have been issued on 12.5.2009 for 26.5.2009. The co-accused of the petitioner namely Dheeraj Setia has been granted interim protection. Therefore, in the facts and circumstances, it would be just and expedient that the petitioner applies for and seeks regular bail by the concerned Court which can consider the evidence and material on record that has been filed along with charge report (challan). The real intent of the prosecution at this stage would be that the petitioner is present during the trial of the case as admittedly custody of the petitioner is not required for the purposes of investigation. Accordingly, the Crl. Misc. petition is disposed of with the direction that the petitioner shall appear before the learned CBI, Special Magistrate, Ambala tomorrow (i.e. on 26.5.2009), which is the date fixed in the case and on his appearance, the petitioner shall be granted interim bail to the satisfaction of the learned CBI, Special Magistrate, Ambala. Besides, the petitioner shall move an application before the concerned Court for regular bail under Section 439 CrPC on 27.5.2009. In case such an application for regular bail is filed, the concerned Court shall consider his application as expeditiously as possible and preferably within 10 days and dispose of the same by 8.6.2009. (S.S. SARON) May 25, 2009 JUDGE amit