CRM-M-10716-2011 (O&M) [ 1 ] ::::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-10716-2011 (O&M) Date of decision:04.08.2011. Balraj ...Petitioner Versus State through CBI, SCB, Chandigarh ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Atul Lakhanpal, Senior Advocate, with Mr. V.P.S. Mithewal, Advocate, for the petitioner. Mr. Sumeet Goel, Advocate, for the CBI. ***** RAKESH KUMAR JAIN, J. This is a petition for bail to the petitioner pending trial in case R.C.No.11(S)/2008/SCB/CHG dated 24.07.2008, under Sections 376(2)(a)(g), 506 and 34 IPC, Police Station Special Crime Branch, CBI, Chandigarh. In brief, the FIR No.341 dated 31.05.2008 was lodged by one Sarita wife of Subhash in which she had alleged that the petitioner (Balraj) and his co-accused, namely Silak Ram, who both were posted as Constable and Head Constable in the CIA, Rohtak at the relevant time, had raped her in the Police Station, where she had gone to inquire about her husband who was arrested on 09.04.2008 allegedly in a theft case. Since the complainant Sarita was not getting any response of her complaint, she committed suicide. This Court took suo motu notice and handed over the investigation of this case to the CBI. Learned counsel for the petitioner has submitted that the petitioner is in custody for over 3 years and the DNA test conducted has not matched. He further submits that when the matter was brought to the notice of DSP Manbir CRM-M-10716-2011 (O&M) [ 2 ] ::::::::: Singh, he should have registered the case being a cognizable offence but no effort was made by him and that out of 60 witnesses, only 16 witnesses have been examined so far and the petitioner is being unnecessarily detained in the custody. On the other hand, learned counsel for the respondent has submitted that the trial of the case is making headway as the witnesses are being examined on each and every date. He further submitted that the petitioner had earlier applied for bail on the same set of circumstances vide CRM-M-11643- 2010 which was dismissed by this Court by a detailed order on 26.04.2010, therefore, the second bail application is not maintainable. In support of his submissions, he has relied upon three judgments of the Supreme Court in the cases of Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (1) RCR (Criminal) 703, Rajesh Ranjan Yadav @ Pappu Yadav, 2007(1) RCR (Criminal) 166 and Anil Kumar Tulsiyani v. State of U.P. And another, (2006) 9 Supreme Court Cases 425. I have heard both the learned counsel for the parties and perused the record with their able assistance. No doubt that the allegation against the petitioner is very serious as being a police official he is alleged to have committed rape along with another police official in the Police Station on the wife of one Subhash who was in custody on the allegation of theft and that after registration of the case when the victim Sarita could not get justice, she even committed suicide. It is also not disputed that the petitioner had earlier approached this Court by way of CRM-M-11643-2010 but his bail application was dismissed by a detailed order in which the following observations have been made: - “Learned counsel for the petitioner has submitted that the petitioner has been falsely involved in this case. Learned counsel has further submitted that the result of DNA test was negative. There was a delay in lodging of the FIR. The offence alleged to have been committed by the petitioner is serious in nature. Sarita – deceased CRM-M-10716-2011 (O&M) [ 3 ] ::::::::: in her suicide note had stated that she had been raped by petitioner and another. Although she brought the said fact to the notice of the police officer but no action was taken. Feeling humiliated, the deceased committed suicide by consuming some poison. It is yet another case of gang rape but with a difference. In this case, the gang rape is alleged to have been committed by the police officials within the vicinity of the police station. It is an unfortunate case where the police officials, who are supposed to give protection to the citizens, have themselves indulged in such a heinous offence. No ground for interference is made out. The effect of the DNA report and other evidence collected during investigation would more appropriately be gone into and considered during trial.” In Kalyan Chandra Sarkar's case (supra), it has been observed by the Supreme Court that “therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application”. In the present case, there is no such change of circumstances or the law. Similarly, in Rajesh Ranjan Yadav @ Papu Yadav's case (supra), it has been observed by the Supreme Court that “in our opinion, none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted”. Therefore, the argument of learned counsel for the petitioner that the petitioner is in custody CRM-M-10716-2011 (O&M) [ 4 ] ::::::::: for a long period is not by itself a sufficient ground for granting bail in the given facts and circumstances. In Anil Kumar Tulsiyani's case (supra), the Supreme Court has held that “by now it is well-settled principle of law that one of the considerations in granting bail in non-bailable offences is the gravity and the nature of the offence”. In the present case, the accused being a police official is being tried for an offence of gang rape which is alleged to have been committed by him and another police official in the Police Station on a hapless woman who visited the Police Station for inquiring about her husband, who was arrested in a theft case, and had taken her own life as she was not granted justice. Moreover, the synopsis of dates submitted by learned counsel for the respondent also show that trial of the case is making headway. Witnesses are being examined as so far 16 prosecutions witnesses have been examined and 3 have been given up and now the case is fixed for 20.08.2011 for recording of the prosecution evidence. Keeping in view the facts and circumstances of this case, I do not find it to be a case for grant of bail to the petitioner. Hence, the present petition is hereby dismissed. August 04, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE