( 1 ) THIS application has been filed on behalf of three applicants under Section 439 of Criminal Procedure Code for grant of bail in connection with crime No. 346/04 registered at police Station Kohefiza, Bhopal for the offences under Sections 330, 304 Part-II and 323 read with Section 34 of Indian penal Code. The Sessions trial No. 212/ 05 is pending in the Court of Sessions judge, Bhopal.

( 2 ) THE Sessions Judge, Bhopal rejected the bail application filed under section 439 of Criminal Procedure Code of all these applicants vide order dated 3/8/2005 passed in Sessions Trial No. 212/05 on these grounds that the earlier application of these applicants was rejected and at that time, it observed that probably, the applicants caused serious injuries to R. K. Jain as they were on duty at that place where R. K. Jain was kept in custody. There is no material change in the circumstances since the earlier application was rejected, therefore, the applicants are not entitled to be released on bail.

( 3 ) THE bail application of K. S. Solanki, Inspector, S. P. E. Lokayukt Office, Bhopal was allowed by this Court vide order dated 8/7/2005 passed in m. Cr. C. No. 4237/05 and the copy of that order has been filed with this application. In that order, the story of the prosecution has been stated briefly and there is no need to repeat the story of the prosecution. Only these facts can be added that the trap was conducted on 14-7-2004 by B. P. Singh under the supervision of m. S. Nain, Incharge S. P. of Lokayukt establishment and thereafter, R. K. Jain was kept in one room where the applicants were on duty during the night time. In the next morning, he was found unconscious and shifted to hospital where he was declared dead. The applicants and other accused persons kept R. K. Jain in such a situation which was not proper for the patient of asthma and they also tortured R. K. Jain physically and mentally, as a result of which he died.

( 4 ) THE learned senior Counsel for the applicants has contended that no 'marpeet' had taken place during the night time as R. K. Jain did not disclose anything about 'marpeet' by anybody to these witnesses who reached at the place of incident to meet him. The prosecution also has not filed the charge-sheet under section 302 of Indian Penal Code. Even no charge under Section 304-11 of the Indian Penal Code is made out against all the applicants. R. K. Jain sustained injuries to the ribs because of artificial respiration process. Since the main accused persons have been enlarged on bail, therefore, the applicants are also entitled to be enlarged on bail as the case of present applicants is identical to the cases of other accused persons, who have been enlarged on bail.

( 5 ) THE learned Counsel for the state opposed the application and has submitted that the offence relates to custodial death and the applicants were on duty during the night time at the place of incident, therefore, they are responsible for the incident and they should not be released on bail.

( 6 ) THE learned Counsel for the objector has contended that the offence under section 302 of Indian Penal Code is made out prima facie against all the accused persons including the applicants on the basis of medical evidence produced with the charge-sheet. Therefore, the applicants are not entitled to be released on bail.

( 7 ) IT is apparent from the case diary that the applicants were on duty during the night time when R. K. Jain made a complaint to some witnesses about the mental and physical torture. Those witnesses have not categorically stated in their statements that R. K. Jain told them that he has been tortured by the applicants or the applicants caused injuries to him. The medical reports are also interesting factor in this case. The charge-sheet has been filed under Sections 330, 304-11 and 323 of the Indian Penal Code and charges have been framed under Section 304-II of the Indian Penal Code only and the sessions Judge, Bhopal