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. 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. He further submits that