ORDER
M.M. Das, J.
1. Heard learned counsel for the petitioner and the learned Addl. Standing Counsel.
2. This application for bail has been filed by the petitioner, who is a constable of police. Accusation of commission of offence under Section 376(2)(g), IPC is made against the petitioner and other co-accused persons.
3. It is alleged by the prosecution that on 6.6.2004 at about 9.00 P.M. the victim lady, namely, Sanjukta @ Sukanti Sethi @ Basanti Dei of village Ichhapur under Baramba Police Station in the district of Cuttack was waiting near “Bhartia Towers, Badambari, Cuttack” to go to her relative’s house, namely Raj Sethi, who is alleged to be serving in the Police Traffic Department as a constable. At about 9.30 P.M. two persons in a motor bike came near to her and enquired as to why she is waiting there. On her disclosing that she has to go to her relative’s place, the said two persons enticed her and created faith in her that if she accompanies them they will leave her in her relative’s place as they said that her relative Raj Sethi was known to them. It is alleged that while she accompanied them in the motor bike as a pillion rider, she could know that the person driving the bike was named Pratap and the person sitting along with her on the pillion was named Kailash Kandi. The prosecution alleges that when the victim lady expressed to get down near Kesharpur, at that time Pratap was talking on his mobile phone to some one, stating “keep every thing ready, we are taking”. She was not allowed to get down near Kesharpur and was brought to the Guard Room of the Bank of Baroda at Buxibazar. It is alleged that she was forced to see blue films and was forced to drink liquor and Bhang against her will. One more constable was there, namely, Ashok Kumar Mallik and it is further alleged that they committed rape on her on the point of gun against her will, repeatedly.
4. Mr. Nayak, learned counsel for the petitioner has meticulously submitted that all the accused persons are innocent, there is no iota of material to implicate them with the alleged offence and the case is an out-come of rivalry between the members of two different Employees’ Union of the Police Department and the accused persons have been made a scapegoat by making wide publicity of the case in the Press. He submits that a bare perusal of the Case diary will go to show that the alleged occurrence though took place on the night of 6.6.2004, no FIR or information has been lodged by the victim. Rather, an FIR was drawn up by one Sri Prasann Kumar Dash, 11C of Cantonment Police Station, Cuttack on 22.6.2004 at 11.00 A.M. and in the FIR he states that by reading the news item regarding the occurrence in the daily Oriya News Paper “Dharitri” dated 21.6.2004 regarding the incident, he suo motu drew up the FIR and started investigating into the case. Mr. Nayak further submits that the victim lady could not be traced till 23.6.2004 when she was ultimately found at Kantilo Patna and on the same day after bringing the victim to Cuttack, her statement under Section 161, Cr.P.C. was recorded. The said statement of the victim has been brought to the notice of the Court where it appears that the victim has stated that since the light was on, in the Guard Room she has clearly seen the accused persons and can identify them. But it appears that in the Tl parade conducted in the jail premises though all the accused persons were put to the said Tl parade, the victim was unable to identify any one of them. Learned counsel for the petitioner contended that though by repeated and wide publicity of the case in the Print media a strong public opinion is seen to have been created against the accused persons, but such fact will not in any way deter the Court from appreciating the case of the petitioner for grant of bail as per law. Added to this, he brings it to the notice of the Court that the prosecution itself having found that no case is made out against two accused persons, namely, Sk. Jainul Sajedin and Krishna Chandra Behera, no charge-sheet has been submitted against them.
5. Mr. Mohapatra, learned Addl. Govt. Advocate on the contrary submits that the offence alleged is a heinous one, that too, committed by people who are employed to protect the public and though the victim was examined subsequently, but in a case of rape her evidence if found to be reliable, conviction can be rested solely on her statement. He explains that the victim herself has stated that as she was forcibly made to take Bhang during the occurrence, due to blurred vision, she has not been able to identify the accused persons in the Tl parade. The learned Addl. Govt. Advocate further submits that the alleged crime having been committed by the petitioner and other accused persons, who are responsible police officials, they are not entitled to be enlarged on bail.
6. Though reference to the statements of various witnesses examined during the investigation under Section 161, Cr.P.C. has been made, I do not think it appropriate to discuss the same in detail as in a bail application detailed and elaborate examination of the evidence should always be avoided and none of the parties should have the impression that his case is being pre-judged.
7. In a bail application the jurisdiction to grant bail is to be exercised on the basis of well-settled principles, having regard to the circumstances of each case. It has been repeatedly held that while granting bail the Court has to consider the nature of accusation, the nature of evidence in support thereof, the punishment which conviction will entail, the standing, character and behaviour of the accused, reasonable possibility of securing the presence of the accused during trial, reasonable apprehension of witnesses being tampered with, the larger interest of the public or State and similar other considerations. In other words, it is to be seen whether there is a genuine case against the accused and whether the prosecution will be able to produce prima facie evidence in support of the charge. (See Prahlad Singh Bhati V. NCT, Delhi and another reported in (2001) 4 SCC 280). It is also a cardinal principle of law of bail that bail is granted to an accused with the intention to secure his presence during trial and conditions are imposed for that purpose and with the object that the accused will not misuse the liberty by attempting to malign the prosecution witnesses.
8. The peculiarity of this case is that the accused persons were police personnel, which calls for stringent conditions in the event they are enlarged on bail. In this regard the Supreme Court in the case of Niranjan Singh V. Pravakar, AIR 1980 SC 785 while dealing with a case where the accused persons belonged to the Police Department held thus :
“We are apprehensive that the accused being police officers should not abuse their freedom and emphasise that the Inspector General of Police of the State of Maharashtra will take particular care to take two steps. He should have a close watch on the functioning of the concerned police officers lest the rule of law be brought into discredit by officers of the law being allowed a larger liberty than other people, especially because the allegations in the present case are grave and, even if a fragment of it be true, does little credit to the police force.
*** *** *** We hasten to make it clear that these are onesided allegations and the accused have a counter-version of their own and we do not wish to make any implications for or against either version. The accused policemen are entitled to an unprejudiced trial without any bias against the 'uniformed' force which has difficult tasks to perform. We conclude this order on a note of anguish. The complainant has been protesting against the State's bias and police threats. We must remember that a democratic State is the custodian of people's interests and not only police interest."
9. Now coming to the point raised by Mr. Nayak, learned counsel for the petitioner that due to wide publicity of the case in Print media a public opinion has been created against grant of bail in favour of the accused persons which should not weigh in the mind of this Court while considering this application for bail- In this regard, I would like to refer to the decision in the case of Bhubaneswar Singhdeo V. State of Orissa, 98 (2004) CLT 201 where I have held that in India Judges are not influenced in any manner either by propaganda or adverse publicity and cases are decided basing on the admissible evidence available on record and the law as applicable.
10. Considering this case by applying the above principles and the statement of the victim lady, In my view, this is a fit case where the petitioner is entitled to be enlarged on bail, but with stringent conditions.
11. I, therefore, direct that the petitioner be released on bail of Rs. 20,000/- (Twenty thousand) with one surety for the like amount to the satisfaction of the learned SDJM, Cuttack in G.R. Case No. 967/2004 corresponding to Cantonment PS Case No. 57 of 2004, subject to the condition that the Superintendent of Police shall keep a strict watch over the activities of the petitioner so as to prevent him from terrorising/threatening the prosecution witnesses and from indulging in any activities which would amount to tampering with the prosecution evidence and that the petitioner will appear before the said Court on each date to which the case is posted and will also appear before the Court to which the case is committed on each date of trial, in person, till end of the trial.
12. The BLAPL is disposed of.
13. Urgent certified copy of this order be granted as per rules.