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Gian Ishwar vs Cbi Chandigarh on 9 January, 2020

CRM-M-18123-2019 -1-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

CRM-M-18123-2019
Date of decision: 09.01.2020

Gian Ishwar …Petitioner

Versus

Central Bureau of Investigation, Chandigarh …Respondent

CORAM: HON’BLE MR. JUSTICE ARVIND SINGH SANGWAN

Present:- Dr. Anmol Rattan Sidhu, Sr. Advocate
Ms. Avneet K. Brar, Advocate
for the petitioner.

Mr. Sumeet Goel, Advocate
Mr. Anubhav Tyagi, Advocate
for the respondent-CBI.

ARVIND SINGH SANGWAN, J. (Oral)

This petition has been filed under Section 439 of the Code of

Criminal Procedure for grant of regular bail to the petitioner in case

FIR No. RCCHG0512018S0003 dated 15.06.2018, registered under Section

22 of the NDPS Act, 1985 (Sections 193, 195, 211, 218, 120-B, 354-A, 376,

506 of the IPC and Sections 7, 13(2), 13(1)(d) of the Prevention of

Corruption Act, 1988 were added later on) at Police Station CBI, SCB,

CHG, Chandigarh.

Learned senior counsel for the petitioner has argued that the

petitioner, being Investigating Officer in FIR No. 160 dated 12.08.2017,

registered under Section 22 of the NDPS Act at Police Station Maqsudan,

District Jalandhar, had apprehended Dalip Singh, husband of the

prosecutrix/victim in the present case.

Learned senior counsel for the petitioner has further submitted

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that said Dalip Singh was thereafter produced before the Illaqua Magistrate,

whereas his remand was taken and the challan against him was presented on

22.09.2017.

Learned senior counsel for the petitioner has further submitted

that till the time, the investigation was carried out by the petitioner/police of

PS-Maqsudan, no complaint was lodged by the prosecutrix/victim regarding

allegations of rape.

Learned senior counsel for the petitioner has referred to

Annexure P-5 (Colly.), submitted by the prosecutrix/victim for the first time

on 12.08.2017 to the effect that at about 6.00 AM, the petitioner has

arrested her husband from her house on the allegations that he is indulged in

selling drugs and later on, when she went to meet him, the petitioner

demanded money from her, to which, she agreed to pay Rs. 1.5 Lakh and

made a request to petitioner not to register any case against her husband. It

is further stated in the said complaint that later on, on 13.09.2017, at about

3.00 PM, the petitioner/ASI came to her house when she was alone and he

threatened her and committed rape upon her. It is further stated that an

amount of Rs. 50,000/- was also paid to the petitioner as illegal

gratification.

Learned senior counsel for the petitioner has further submitted

that when the bail application filed by Dalip Singh came up for hearing

before this Court, the further investigation was handed over to CBI as there

were some allegations that the petitioner has even poured acid in the mouth

of co-accused Joga Ram. Thereafter, the CBI registered the present FIR and

the petitioner was arrested on 27.12.2018.

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Learned senior counsel for the petitioner has further argued

that as per the original complaint given by the prosecutrix/victim, the time

of occurrence is given as 3.00 PM, whereas it was later on changed to 4.00

PM to 5.00 PM for the reasons that on that day, the petitioner was busy in

investigation of another FIR No. 183 dated 12.09.2017, in which, he had

produced accused Devraj before the Court.

Learned senior counsel for the petitioner has further referred to

a report of DSP, Sub Division Kartarpur, District Jalandhar (Rural), dated

29.12.2017, submitted to S.S.P., Jalandhar (Rural) with regard to allegations

levelled by the prosecutrix/victim, wherein it was noticed that the

complainant has not recorded statement of any witness except her own

statement and the possibility of implication of the petitioner on account of

the pending case against the husband of the prosecutrix/victim cannot be

ruled out and the allegations levelled by her are not proved.

Learned senior counsel for the petitioner has further submitted

that the husband of the prosecutrix/victim is involved in three more FIRs

and, therefore, the possibility of false implication of the petitioner is noticed

by the DSP.

Learned senior counsel for the petitioner, with reference to

allegations qua Joga Ram, has referred to order dated 15.12.2018 passed in

CRM-M-47579-2017, filed by Dalip Singh, wherein it is noticed that

Sub-Divisional Magistrate, Phillaur had recorded statements of several

witnesses and also of the doctors and also collected particulars of other

cases pending against said Joga Ram. It has also been noticed that while 6

cases (3 under Excise Act, 1 under IPC Act and 2 under NDPS Act) are

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pending against said Joga Ram, there are as many as 19 cases (15 under

NDPS Act and 4 under IPC Act) pending against other six members of Joga

Ram’s family. It was also observed that Sub-Divisional Magistrate, Phillaur

has concluded as under:

“As such in the last I reached at conclusion that the
allegations levelled against ASI Gian Ishwar of pouring
acid to Joga Ram did not prove but if he would have
checked the public/officer’s bathroom before sending him
in, that whether any liquid is lying there which could
harm him, this occurrence would not have happened. As
such, he has committed negligence.”

Learned senior counsel for the petitioner has, thus, argued that

the petitioner is in judicial custody for the last about one year; the challan

has been presented and it is a matter of evidence, to be recorded during trial,

whether the defence set up by the petitioner that he has falsely been

implicated on account of registration of FIR against Dalip Singh and Joga

Ram is sustainable or not.

In reply, learned counsel appearing for the respondent-CBI has

argued that there are threefold allegations against the petitioner; firstly, he

has registered a false case against Dalip Singh; secondly, he has demanded

illegal gratification from the prosecutrix/victim and has received a sum of

Rs. 50,000/-, and thirdly, there are allegations that he has committed offence

under Section 376 IPC upon prosecutrix/victim.

On a Court query, learned counsel appearing for the

respondent-CBI could not dispute that the first complaint was made by the

prosecutrix/victim on 12.08.2017 and she was medico-legally examined on

21.08.2018.

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A perusal of the MLR shows that the doctor has recorded the

complete details of the case which is in fact very unusual. The same is

reproduced herein below:

“As per victim Mrs……(name withheld) w/o Dalip Singh,
her husband is in police custody since 12.08.2017 under
NDPS Act. She was staying at her house with her
parents. With reference to her husband’s police case, she
went to police station maqsudan three to four times and
police person Mr. Gian Ishwar used to visit her house for
investigation of her case approximately daily for one
month. On 13.09.2017, IO Punjab Police ASI Gian
Ishwar who was investigating the FIR against her
husband entered her house while she was sleeping and
sexually assaulted her and threatened her not to disclose
to anybody otherwise her husband will not be relieved.
After the incidence she went to police station on
14.09.2017 to report but police did not register her case.
Then she went to District Court with Mamta Typist at
Court and gave her application to Mr. Sarabjeet Raj,
Police Officer and Vishal Kumar, Lawyer to give it to
Court. Then Mr. Vishal Kumar put her application to
Hon’ble Punjab and Haryana High Court and her case of
sexual assault was registered and given to CBI for further
investigation.”

Learned counsel appearing for the respondent-CBI could not

deny the fact that persons mentioned in this MLR, namely Mamta Typist,

Mr. Sarabjeet Raj, Police Officer and Vishal Kumar, Lawyer, were never

joined investigation for recording their statement under Section 161 Cr.P.C.,

though it is alleged that the prosecutrix/victim met all the aforesaid three

persons on the very next day of incident i.e. 14.09.2017.

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Learned counsel appearing for the respondent-CBI further

referred to opinion of the doctor, wherein it is opined that possibility of

sexual assault cannot be ruled out.

I have heard learned counsel for the parties.

Without commenting upon the merits of the case, considering

the aforesaid submissions of learned senior counsel for the petitioner as well

as learned counsel appearing for the respondent-CBI and also in view of the

fact that prior to this FIR, the petitioner is not involved in any other case;

conclusion of trial is likely to take some time and the petitioner is in judicial

custody for the last about one year, the instant petition is allowed. The

petitioner is ordered to be released on regular bail on his furnishing

bail/surety to the satisfaction of the trial Court/Duty Magistrate concerned.

09.01.2020 (ARVIND SINGH SANGWAN)
Waseem Ansari JUDGE

Whether speaking/reasoned Yes/No

Whether reportable Yes/No

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