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2006 DIGILAW 2839 (PNJ)

Lekh Ram v. Central Bureau Of Investigation

2006-07-18

SURYA KANT

body2006
Judgment Surya Kant, J. 1. In this petition under Section 439 of the Code of Criminal Procedure, the petitioner has come up with a prayer to release him on bail in case bearing No.RC 6(S)/2002 S.I.C.I dated 8.3.2002 under Section 218/323/342/305/306 read with Section 34 and 120-B IPC registered by CBI of P.S. SIC-I, New Delhi. 2. One Ashok Kumar Aggarwal was found in an unconscious, naked and injured condition on November 16, 2000 and when taken to the Civil Hospital, Rewari, he succumbed to the injuries. Smt. Sita Devi wife of deceased Ashok Kumar Aggarwal was called by the local police of Haryana to identify the dead body which she allegedly identified by seeing the toe/foot only i.e., even without seeing the face of the deceased, which led to cause some suspicion in the mind of the local police regarding possible involvement of Smt. Sita Devi in the murder of her husband. 3. Petitioner - Lekh Ram was posted as Sub-Inspector at P.S. Dhamhera (District Rewari) along with SHO Siri Ram at that time and the said SHO was investigating the afore-mentioned case. SHO Siri Ram allegedly brought Smt. Sita Devi and her minor daughter Sarika, aged about 16 years, along with their tenant Giri Raj Parsad to the police station at about 10 AM on 19.11.2000. 4. It is alleged that the petitioner along with other police officials not only illegally detained Smt. Sita Devi and her minor daughter Sarika in the police station in the intervening night of 19/20 November, 2000 but they were also physically tortured, humiliated and threatened with dire consequences. The petitioner is further alleged to have threatened Sarika that her salwar shall be lifted if she would not disclose the name of the person who killed her father. On 20.11.2000, at about 3.20 PM, Sarika was taken to her home in the custody of two lady constables in a government vehicle so as to fetch her mothers clothes and while returning, she is alleged to have brought cellphos tablets and apprehending further beatings and indecent behaviour, two cellphos tablets are stated to have been consumed by Smt. Sita Devi whereas one by her minor daughter Sarika in the premises of the police station so as to put an end to their lives by committing suicide. While Smt. Sita Devi died instantly, Sarika was taken to the hospital where she made a dying declaration in presence of the Duty Magistrate before she expired. 5. The afore-mentioned incident led to registration of FIR No.281 dated 20.11.2000 at P.S. Dharuhera under Section 342, 302 read with Section 34 IPC in which the petitioner and other police officials were named as accused. The petitioner was arrested on 22.11.2000. Later on Section 302 IPC was substituted by Section 306 IPC in which the petitioner along with his co- accused was discharged by the Chief Judicial Magistrate, Rewari on February 5, 2001. The aforementioned order, however, was suo-motu set aside by the Additional Sessions Judge, Rewari vide his order dated 31.5.2001 The petitioner and his co-accuised then sought pre-arrest bail which was granted to them by the learned Additional Sessions Judge, Rewari on 7.6.2001. 6. Meanwhile, Neeru Aggarwal, one of the daughter of deceased Ashok Kumar Aggarwal, approached this Court in Cri.Misc.No.33366-M of 2001 seeking transfer of the investigation from Haryana Police to the CBI. 7. The petitioner along with his co-accused also filed Cri. Misc. No.24940-M of 2001 in this Court, challenging the order dated 31st May, 2001 passed by the Additional Sessions Judge, Rewari, vide which the order dated 5th February, 2001 passed by the Chief Judicial Magistrate, Rewari, discharging them, was set aside by the former suo-motu. 8. Both the above stated petitions were heard together and decided by this Court vide order dated February 8, 2002 whereby the investigation was transferred to CBI and the order dated May 31, 2001 passed by the Additional Sessions Judge, Rewari was also set aside. 9. It is in this backdrop that the incident was reinvestigated by the CBI who presented the challan on 28.5.2003 pursuant to which the petitioner along with his co-accused was summoned for 31.5.2003. It may be mentioned here that in its, charge-sheet CBI also included commission of an offence under Section 305 IPC as, according to it, deceased Sarika was a minor. 10. Apprehending his arrest, the petitioner approached this Court by way of Crl.Misc. No.48307-M of 2003 in which interim bail was allowed to him vide order dated September 04, 2003. It may be mentioned here that in its, charge-sheet CBI also included commission of an offence under Section 305 IPC as, according to it, deceased Sarika was a minor. 10. Apprehending his arrest, the petitioner approached this Court by way of Crl.Misc. No.48307-M of 2003 in which interim bail was allowed to him vide order dated September 04, 2003. However, the aforesaid petition was finally disposed of on May 29, 2004 by relegating the petitioner to seek his remedy of regular bail before the trial Court within a period of two weeks and in the event of any such application by him, the trial Court was directed to decide the same expeditiously and till then the petitioners arrest was stayed. The Special Judge CBI, however, declined regular bail to the petitioner, prompting him to again approach this Court in Cri. Misc. No.33302-M of 2004. The aforesaid petition was dismissed for the detailed reasons and directions mentioned in paragraphs 14 and 15 of the said order. 11. It is, however, not disputed that instead of surrendering before the Special Judge, CBI in terms of the directions contained in the order dated 30th November, 2004, referred to above, and after evading his arrest for some time, the petitioner again approached this Court in Cri. Misc. No.9875- M of 2005 to grant him pre-arrest bail. His co-accused, SHO Siri Ram, however, surrendered before the Special Judge, CBI and thereafter applied for his release on regular bail. 12. The pre-arrest bail petition filed by the petitioner as well as for regular bail applications of his co-accused Siri Ram were heard together and vide order dated 21st July, 2005, while Siri Ram was directed to be released on regular bail, the petitioners petition for pre-arrest bail was dismissed with the following directions to the CBI: "However, the prosecution, i.e., the CBI is directed to ensure that the constables or any other subordinate police officials who were posted in P.S. Dharuhera at the relevant time as well as two daughters of the deceased are immediately produced before the Special Judge as witnesses on the next date fixed for prosecution evidence so as to make an endeavour that their statements are recorded on that very day or on the very next day only. After recording their statements, the petitioner will be at liberty to seek regular bail and in the event of any such application by him, the same shall be considered by the learned Special Judge CBI, Ambala in accordance with law." 13. Aggrieved against the dismissal of his pre-arrest bail petition, the petitioner preferred SLP (Cri.) No.3742 of 2005 before the Honble Supreme Court but the same was dismissed on 16th August, 2005. 14. The petitioner, thereafter, surrendered before the learned Special Judge, CBI on 3rd October, 2005 and is in judicial custody since then. 15. After examination of more than nine prosecution witnesses, including the most vital witness, namely, Neeru Aggarwal @ Neeru Gupta (PW4) daughter of deceased Ashok Kumar Aggarwal and on whose instance the matter was referred to CBI, the petitioner, in terms of the observations made by this Court in its order dated 21 st July, 2005, reproduced above, applied for his release on regular bail which has, however, been declined by the learned Additional Sessions Judge, Ambala vide his order dated 6th March, 2006. Consequently, the petitioner has approached this Court. 16. Consequently, the petitioner has approached this Court. 16. In support of the prayer made in this petition, Learned Counsel for the petitioner argued that- (i) the petitioner is in custody for the last about 8 months (now about 10 months); (ii) all the vital prosecution witnesses including Neeru Aggarwal, and 14 others have since been examined, therefore, there is no possibility of any tampering with and/or influencing the prosecution witnesses by the petitioner; (iii) there is a long list of 72 PWs which the CBI wants to examine, therefore, conclusion of trial will take a considerably long period; (iv) the petitioner, before his arrest, was posted in District Faridabad, which is a far away place and if he is released on bail, he will not be able to exert any kind of influence even if he is reinstated by the Department; (v) his co-accused, namely, Siri Ram has already been released on regular bail by this Court on 21st July, 2005 though he spent less period than the petitioner in judicial custody; (vi) prima facie, no offence under Section 305 IPC is made out, as from the birth certificate, which the petitioner has placed on record, it stands established that deceased Sarika was born on 13th November, 1980 and was not a minor on the date of occurrence, i.e., 20th November, 1980; (vii) as far as the offence under Section 306 I PC is concerned, the learned Additional Sessions Judge, Rewari had already released the petitioner on pre-arrest bail on 7th June, 2001, and (viii) the petitioner undertakes not to obstruct the on going trial in any manner. 17. On the other hand, Shri Rajan Gupta, learned Special Public Prosecutor for the CBI argued that:- (i) the gravity of the offence does not permit the petitioners release on bail; (ii) the petitioner has been named by the deceased Sarika in her dying declaration; and (iii) the petitioner has been avoiding his arrest and has, thus, delayed the trial. 17. On the other hand, Shri Rajan Gupta, learned Special Public Prosecutor for the CBI argued that:- (i) the gravity of the offence does not permit the petitioners release on bail; (ii) the petitioner has been named by the deceased Sarika in her dying declaration; and (iii) the petitioner has been avoiding his arrest and has, thus, delayed the trial. 18 After hearing Learned Counsel for the parties, but without expressing any views in relation to the merits of the case lest it should prejudice either of them and having regard to the fact that the petitioner has already spent about 10 months in judicial custody and materrial prosecution witnesses have already been examined but there is a long list of 72 witnesses out of whom more than 50 are yet to be examined and, thus, the trial is likely to take a considerably long period and also keeping in view the fact that the petitioners co-accused have already been released on bail, this petition is allowed and the petitioner is directed to be released on bail to the satisfaction of learned Special Judge, CBI at Ambala. 19. However, in order to obviate any possibility of exertion of influence by the petitioner in any manner, it is directed that if the petitioner is reinstated in service by the competent authority, he shall not be posted either in District Rewari or in and around Ambala till the conclusion of trial. 20. Let a copy of this order be sent to the Director General of Police, Haryana also for information and necessary compliance.