JUDGMENT U.B. Saha, J. 1. The instant bail application is filed by Smt. Mita Guha, wife of accused Sri Dilip Guha who was arrested on 29.10.2010 in connection with Kalyanpur P.S. Case No. 72/2010 (GR 288/2010) under Section 376(2)(a)(i)(ii) & b/366A read with Section 109/120B of IPC which was registered on the basis of the information lodged by one Sri Amullya Das, father of the victim girl, who was allegedly raped by the accused person. 2. Heard Ms R Guha, learned Counsel for the Petitioner as well as Mr. D Sarkar, learned PP for the State. 3. Brief facts needed to be discussed for disposal of the instant bail application are that one Sri Amullya Das lodged an FIR against the accused on 28.10.2010 alleging inter alia, that on 26.10.2010, after completion of work in the house of Sri Jogeswar Nath Sharma, his daughter came back at 11.30 a.m. and after that one Minuti Das (Rani), D/O Surendra Das kidnapped her from the road and on 27.10.2010 at 10.30 a.m. she came back to her home and when she was asked regarding her whereabouts; she informed that Rani took her by provoking her in the quarter of O/C Dilip Guha, accused herein. Since evening they made her unconscious by making her drink alcohol and after that while she was unconscious she was raped for the entire night. Minuti Das (Rani) was also associated with the accused Dilip guha. In connection with the aforesaid PS Case accused Dilip Guha has been arrested and is still in detention as a under trial prisoner. On being arrested, the accused on 26.11.2010, 01.12.2010 and 20.12.2010 filed bail applications and those bail applications were rejected. Hence, this bail application. 4. Ms Guha while urging for bail submits that the accused is detained in custody though he is fully innocent, merely on suspicion; inter alia that he allegedly committed rape on a minor girl, the daughter of the informant. She further submits that personal liberty of a citizen cannot be curbed when charge sheet has been filed. She also urged that detention of a person can be of two types: (i) preventive detention, and (ii) punitive detention. She further submits that personal liberty of a citizen cannot be curbed when charge sheet has been filed. She also urged that detention of a person can be of two types: (i) preventive detention, and (ii) punitive detention. Here the accused being an under trial prisoner neither the principle of preventive detention nor the principle of punitive detention can be applied, particularly when the trial is awaiting, either to prove the guilt of the accused person or to prove the innocence. According to her, until the guilt is proved an accused should always be considered innocent. In support of her aforesaid contention regarding the nature of detention, she placed reliance on a decision of the Apex court in Gimik Piotr v. State of Tamil Nadu and Ors. (2010) 1 SCC 864 particularly, paragraphs 17, 18 and 19. She also placed reliance on another decision of the Apex Court in the case of Deepak Bajaj v. State of Maharashtra and Anr. (2008) 16 SCC 14. 5. Her further contention is that the accused is a police officer and hence there is no possibility of his absconsion and evading the trial and as by this time the charge sheet has already been filed, there is also no possibility of tampering with the witnesses, particularly, when the statements of the witnesses have been already recorded. She again contended that being arrested and detained in custody, the accused has already been suspended from his service and he has no access at present to the records of the police station. 6. She finally contended that for facing trial and to prove his innocence, the accused should be granted bail so that he can engage a lawyer and participate in the discussion with him 7. Mr. Sarkar while resisting the prayer for bail submits that the present accused is not like the other accused in any criminal proceeding. Rather he was a member of the police force at the time of the alleged incident and a custodian of law and taking the opportunity of his own profile as a police officer and using his office he committed the offence of rape on a minor girl. Therefore, the matter has to be looked into seriously. Rather he was a member of the police force at the time of the alleged incident and a custodian of law and taking the opportunity of his own profile as a police officer and using his office he committed the offence of rape on a minor girl. Therefore, the matter has to be looked into seriously. He further submits that if the accused is enlarged on bail he will try to gain over the witnesses and ultimately it will cause injustice to the victim minor girl and her family, more so to the society. 8. He further contended that mere filing of a charge sheet ipso facto would not entitle an accused to get bail. At the time of considering the bail application, the Court has to consider the nature of crime allegedly committed by the accused and whether on release he could utilise his office or position in the society. He finally contended that if a police officer, taking advantage commits rape on a minor girl then where will people go and in whose hands the society will place the responsibility of maintaining law and order. 9. While replying to the submission of Ms Guha, Mr. Sarkar further contended that the case laws cited by Ms Guha has no application in the instant case; those cases being related to preventive detention wherein their lordships of the Apex Court discussed regarding the object of detention and nature thereof as well as the object of Article 21 of Constitution. He also contended that normally a case relating to an offence under Section 376 is investigated by a Sub-Inspector of Police but considering the gravity of this case, particularly when a police officer is involved in a crime like rape, the government took a policy decision to investigate this case by an officer of the rank of Superintendent of Police and upon investigation the charge sheet has been filed against the present accused and in the charge sheet investigating agency also made a prayer for detention of the accused in custody till the trial is completed. In support of his aforesaid contention, he placed reliance on a decision of the Apex court in Anil Kumar Tulsiyani v. State of U.P. and Anr., (2006) 9 SCC 425 wherein their lordships taking note of the case of State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 quashed the order of the High Court of judicature at Allahabad wherein bail was granted to the second Respondent-accused in the said case on the ground inter alia, that being an advocate he is in a commanding position and standing in the society. Keeping in view his position in the background, a reasonable apprehension of the witnesses being tampered with or won over, coerced, threatened or intimidated by using his influence and position cannot be ruled out. He also relied on a decision of the Bombay High Court in Ramdas Mahadeorao Shrirao and Ors. v. State of Maharashtra, 1992 Cri. L.J. 2641 wherein the applicants were police personnel and prosecuted for an offence under Section 376(2) of IPC for committing rape on a Adiwasi Korku woman of village Toranwadi. 10. Having heard the learned Counsel for the parties and on going through the records available before this Court, particularly the case diary this Court is of considered opinion that it would be proper to discuss the law cited by Ms Guha. If that is not done then she may consider that this Court is avoiding to consider her submission to do justice to her client. Hence, before deciding other issues this Court is discussing the law reports cited by her. 11. In para 17 of Gimik Piotr (supra) their lordships discussed about the nature of detention and while discussing such, stated, that preventive detention is not punitive but a precautionary measure. The object is not to punish a person, but to intercept or prevent him from doing any illegal activity. Its purpose is to prevent a person from indulging in activities, such as smuggling and such other antisocial activities as provided under the preventive detention law. In the said case, the Apex Court also took note of Union of India v. Paul Manickam, (2003) 8 SCC 342 and quoted paragraph 7 of Paul Manickam (supra). Its purpose is to prevent a person from indulging in activities, such as smuggling and such other antisocial activities as provided under the preventive detention law. In the said case, the Apex Court also took note of Union of India v. Paul Manickam, (2003) 8 SCC 342 and quoted paragraph 7 of Paul Manickam (supra). In Deepak Bajaj (supra) in paragraphs 9 to 16, as relied upon by Ms Guha, their lordships discussed regarding the fundamental right to liberty of a citizen as provided under Article 21 of the Constitution wherein their lordships also quoted from Ghani v. Jones (1969) 3 All ER 1700 (CA) wherein his lordship Denning observed, ...A man's liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest grounds." In paragraph 12, their Lordships also again discussed regarding the right to life of a person under Article 21 of the Constitution and while discussing stated, "If a person is sent to jail, then even if he is subsequently released, his reputation may be irreparably tarnished. 12. There is no quarrel with the law laid down by their lordships in the aforesaid two law reports cited by Ms Guha but according to this Court, those cases have no bearing so far the case in hand is concerned, particularly when the case in hand is not related to preventive detention of detenu, rather a bail application filed on behalf of accused, an under trial prisoner. In those cases, their lordships considered the law relating to preventive detention as well as the provisions of Article 21relating to a detenu. But the case in hand is totally on a different footing. In the case in hand, the accused, who is a protector of law and order, allegedly committed an offence of rape on a minor girl taking the advantage of her minority, innocence and poverty. He was arrested with the aid of law by the arresting authority. Article 21 of the Constitution nowhere stated that the personal liberty of a citizen cannot be deprived even when he has committed some offence or he is suspected in connection with an alleged crime and arrested thereof. Article 21 specifically stated that no person shall be deprived of his life or personal liberty except according to procedure established under law. Article 21 of the Constitution nowhere stated that the personal liberty of a citizen cannot be deprived even when he has committed some offence or he is suspected in connection with an alleged crime and arrested thereof. Article 21 specifically stated that no person shall be deprived of his life or personal liberty except according to procedure established under law. Here in the instant case the accused is deprived of his personal liberty as prescribed by procedure established under law. Though there is no doubt, that right to livelihood is an integral facet of the right to life and assurance of fair trial is the first imperative of dispensation of fair justice. Fair trial does not mean that a person has to be released from custody in all cases. In which case an accused should be released on bail that is within the discretion of the Court and the Court is also supposed to exercise its discretion judiciously. Judicial discretion should always be reasonable as justice is nothing but reason and reason. 13. In the case of Ramdas (supra), the Bombay High Court while considering the bail applications of three police officials who were prosecuted under Section 376(2) IPC for committing rape on a Adiwasi Korku Woman of village Toranwadi noted, inter alia, If the applicants Nos. 1 and 2 are released in such a heinous crime of gang rape, there is possibility of their absconding. Considering the facts and circumstances, the possibility of absconding and also tampering with the evidence cannot be ruled out. Considering the facts and circumstances of the case, particularly, it is a gang rape and that too committed by the persons who are responsible for the protection of law and order and who are the saviours not only of the persons but also of the property, at least applicants Nos. 1 and 2 do not deserve to be released on bail at this stage. 14. 1 and 2 do not deserve to be released on bail at this stage. 14. In the case of State of U.P. v. Amar Mani Tripathi, (2005) 8 SCC 21 the Apex Court even did not grant bail after filing of charge sheet taking note of the fact of that case and their lordships also held in particular, that while considering the application for bail, what is required to be looked is, (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail. 15. Taking note of Amar Mani Tripathi (supra) this Court in Bimal Das v. State of Tripura (2009) 2 GLR 35 : (2009) GLT 1587, held, inter alia, There is no doubt that mere filing of charge sheet cannot be a ground for rejection of bail, but at the same time the court has to consider the fact that filing of charge sheet against an accused person makes Out a prima facie case against him to the effect that the accused had committed the offence and court cannot also ignore the gravity of the charge and severity of the punishment in the event of conviction of the accused after trial. Ordinarily, the court do not reject the bail when charge sheet is filed considering the fact that the accused has a right to defend himself in the trial. But there are some cases where granting of bail will frustrate the purpose of trial and also shaken the confidence of the witnesses as the accused may try to restrain them from disclosing the actual fact before the court. The court has to see the nature and character of the offence, the position of the accused person in the society and whether there would be any effect in the society if me accused is released on bail. The court has to see the nature and character of the offence, the position of the accused person in the society and whether there would be any effect in the society if me accused is released on bail. If there is any possibility of affecting the society by the release of the accused on bail then the court should see the interest of the society and not the individual and it would be proper to proceed with the trial keeping the accused in custody. 16. In the instant case, the accused was appointed by the State to protect the law and order in the society from the hands of criminals but the accused himself allegedly is involved in an offence like rape on a minor girl residing within the jurisdiction of his police station. The accused is not a mere police personnel in the police station, rather was in-charge of the police station. If the in-charge of a police station can allegedly involve himself in an offence like rape on a minor girl then his subordinates would also try to follow him taking the law in their hand and if the police taking the advantage of their position go for committing offences then normal criminals will get more moral support which will affect the society as a whole and the people at large will be nowhere. The police force is to Protect the liberty of a citizen, Off the crime from the society, Literate the people to follow the law of the land, Investigate the crime, Contact with the people day to day so that they should not involve in criminal offence, etc. and the present accused failed to discharge the duty cast on him as a police personnel, who was engaged as a protector of the society became allegedly a killer and a party to a social disorder. If the accused is granted bail, then he will try to gain over the witnesses including the victim taking the advantage of their poverty. For that reason the investigating authority very rightly pointed out that the detention of the accused in custody during trial is necessary. 17. If the accused is granted bail, then he will try to gain over the witnesses including the victim taking the advantage of their poverty. For that reason the investigating authority very rightly pointed out that the detention of the accused in custody during trial is necessary. 17. Taking note of all the facts, this Court considers that this is an exceptional case where if the accused is released on bail he may not temper the evidence on record but would take the opportunity of his official position and would try to contact with his old friends in the force for gaining over the witnesses, and also try to throttle justice as a whole. 18. Therefore, this Court is of further opinion that it is a fit case where the Trial Court should proceed with the trial keeping the accused in custody. 19. However, as the present accused has the liberty to engage a lawyer, the trial court should allow him to engage a lawyer while he is in the court or jail, and discuss with his lawyer, if any engaged, subject to the permission of the appropriate authority. 20. This Court has restrained itself from making any observation on the merits of the case being that would affect the trial. 21. With the aforesaid reasons and discussions, the prayer for bail is rejected. Petition dismissed