IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Misc. No. M-17347 of 2009 (O/M).
Date of Decision : August 25, 2009.
Pawan Kumar s/o Sh. Janardhan Kaushik, aged about 36 years, Inspector of
Police, Harayna, r/o House No. 250, Housing Board Colony, Jind (Haryana).
(Now confined in Central Jail, Ambala).
...... Petitioner .
Versus.
C.B.I. Chandigarh. ..... Respondent .
CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.
Present:- Mr. S.K. Garg Narwana and Mr. Ashok Sharma, Advocates,
for the petitioner.
Mr. Sukhdeep Singh Sandhu,
Central Government Standing Counsel,
for C.B.I. Chandigarh.
AUGUSTINE GEORGE MASIH, J. (ORAL).
The present petition is for grant of regular bail. As per
allegation against the petitioner, it is asserted that the petitioner had not
properly investigated the case and to start with got F.I.R. recorded under the
wrong provisions and thereafter as per the statement of A.S.I. Prahlad Singh,
who is the person who had recorded the F.I.R., no directions were issued to
him either to issue summons to the complainant or to call the complainant for
investigation purposes. It is further the allegation that as per statement of
A.S.I. Prahlad Singh, the petitioner did not direct the arrest of accused in the
case. It is further contention of C.B.I. that all this was done with an intention
to help the accused, who were police officials and even the medical of the
complainant was not got done, when it was a matter, where allegations were
made against the police officials of her being gang raped by two of them.
Criminal Misc. No. M-17347 of 2009 . -2-
Counsel for the petitioner contends that all these allegations
primarily are to be proved by the prosecution at the stage of trial. However,
he submits that F.I.R. itself suggest that the offence, which has been said to
have been committed by the accused, was recorded by A.S.I. Prahlad Singh.
In the F.I.R. itself, it is mentioned that the S.H.O., who is the petitioner, had
been informed on phone after registration of the F.I.R. He thereafter relies
upon rapat No. 47 dated 31.05.2008 (Annexure-P-2), where again it had
been so entered by A.S.I. Prahlad Singh. He on this basis submits that the
petitioner was not present at the police station, when the F.I.R. was
registered. He further contends that thereafter the petitioner had been on
V.I.P. duty, and, therefore, could not participate in the investigation. He on
this basis submits that the basic allegations against the petitioner having
been dispelled from the documentary evidence, which has been placed on
record, which documents are not denied by the prosecution in their reply,
which they had filed before this Court. The allegations as made against the
petitioner, prima-facie, appear to be not correct. His further submission is
that the stand taken by the C.B.I. that the petitioner had not given his correct
permanent residential address, which led to his not being summoned, is
incorrect in support whereof he has produced his copy of earlier petition,
which he had preferred under Section 482 Cr.P.C. in Crl. Misc. No. M-
12808 of 2009, the original identity card of the petitioner dated 12.12.2007,
old ration card and certificate issued by the Superintendent of Police,
Yamuna Nagar, which goes to show that his permanent address from his
entry into service till date is the same, which had been given by the
petitioner during investigation to the C.B.I. He on this basis submits that the
petitioner deserves to be released on bail.
Criminal Misc. No. M-17347 of 2009 . -3-
On the other hand, counsel for the C.B.I. has opposed the bail
petition primarily on the ground that the address, which had been given by
the petitioner during investigation was not found to be correct as he could
not be served on the said address, when the summons were issued. He
further contends that the C.B.I. has specific evidence in the form of
statement of A.S.I. Prahlad Singh, who had stated specifically that the F.I.R.
was registered at the instructions of the petitioner and D.S.P. Dhiraj Setia.
He has further stated in his statement that both were present at the time when
the F.I.R. was registered. His assertion is that the statement of A.S.I.
Prahlad Singh further goes to show that an effort was made by the petitioner
to shield the accused by getting the wrong sections incorporated of the
offence than which was committed by the accused in the FIR and the
conduct of the petitioner during investigation, that he did not order the arrest
of the accused nor did he direct A.S.I. Prahlad Singh to issue summons for
presence of the complainant. All this, he submits, show that the intention of
the petitioner, which was a malafide on his part to scuttle the investigation.
He further submits that wrong entries had been made in the records. He on
the basis of the mobile phone records of the complainant submits that, on the
date when it is asserted i.e. 08.06.2008 by the petitioner that he had tried to
contact the complainant on her mobile phone but the same was found
switched off, cannot be accepted to be correct. He on this basis submits that
the petitioner is not entitled to grant of bail.
Counsel for the C.B.I. further states that in the light of position
he is holding and the conduct, the prosecution is apprehensive that he would
threaten the witnesses and try to influence them not to depose against him.
Criminal Misc. No. M-17347 of 2009 . -4-
I have heard counsel for the parties and have gone through the
records of the case.
As far as the contention of the C.B.I. is concerned that he had
given wrong address during his investigation, cannot be accepted for the
reason that the documents, which have been produced by counsel for the
petitioner in the Court, clearly show that the address which he had given
during his investigation to the C.B.I. was indeed his permanent address as
from the very entry in service till date the said address is reflected in the
records. That is a different position that the summons were not served upon
him for the reason that he was not found there or he was not at that moment
residing there. As regards the contention of the prosecution that the
petitioner has influenced the process of investigation and has infact
tampered with the records, the same also in the light of submissions made by
counsel for the petitioner as recorded above which has been reflected in the
documents, which have been placed on record i.e. the F.I.R. and Rapat
(Annexure-P-2) would be a question of evidence, which has to be decided,
on the basis of evidence to be produced before the Trial Court. Thus, it
cannot be at this stage said that the assertion made by the C.B.I. is correct or
incorrect. However, keeping in view the fact that the trial is not likely to
conclude soon as there are 84 witnesses, who are to be examined and the
stage of the trial is that the charge is likely to be framed tomorrow. Further
the investigation in the case is complete and, therefore, his custody is not
required by the prosecution for any purposes.
The contention, which has been raised by the C.B.I. with regard
to his influencing, the witnesses, who are likely to appear and depose against
him also cannot be accepted at this stage. However, in case such an
Criminal Misc. No. M-17347 of 2009 . -5-
eventuality happens or the prosecution comes to a conclusion to that effect,
the provisions of law do provide for a remedy for that.
In view of the above, the present petition is allowed. The
petitioner is directed to be released on bail to the satisfaction of the Trial
Court.
(AUGUSTINE GEORGE MASIH)
JUDGE
August 25, 2009.
sjks.