IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-6137 of 2009 Date of decision: 20th March, 2009 Radhey Sham Kapoor … Petitioner Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Atul Lakhanpal, Senior Advocate with Ms. Shumaila Parvez, Advocate for the petitioner. Mr. S.S. Mor, Senior DAG Haryana for the State. Mr. Vivek Khatri, Advocate for the complainant. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present petition has been filed under Section 438 Cr.P.C. seeking grant of anticipatory bail to the petitioner in case FIR No. 94 dated 17.02.2009 registered at Police Station Civil Lines, Hisar under Sections 376, 323, 506, 120-B IPC. On March 4, 2009, this Court had passed the following order: “Petitioner is stated to be retired School Head Master, aged 65 years and has rendered 40 years of service. His son Neeraj Kumar is stated to be mentally retarded. Neeraj Kumar was married with the prosecutrix who was a divorcee. Counsel for the petitioner has relied upon Annexure P1 Daily Diary Report in which it was stated that his daughter-in- law Rachna had left the house. Counsel has also relied upon Annexure P2 whereby Rachna joined the matrimonial home after the articles, which she had taken away, were returned. Criminal Misc. No. M-6137 of 2009 This document is witnessed by Puja Kukreja, sister-in-law (Bhabhi) of Rachna, complainant. Counsel has also relied upon Annexure P3 an application given to the Superintendent of Police, Hisar, that Rachna had eloped with one Rohit Gupta and another person Jassi. Counsel for the petitioner submits that present FIR has been lodged with an eye to grab the property of the petitioner. In the complaint, Rachna has stated that Neeraj Kapoor being mentally and physically unfit was unable of perform sexual intercourse., therefore, she for a long period was raped by petitioner, who is her father-in-law. She has further stated that daughter was born to him from the loins of the petitioner. Complainant has stated in the FIR that she is ready to undergo DNA test of her daughter Muskan alias Riya. Counsel for the petitioner at the outset has stated that the petitioner is ready to give sample of his blood for conducting the DNA test. Petitioner is directed to appear before the Court of the Chief Judicial Magistrate, Hisar, on or before 10.3.2009. On that date or any date to be fixed later by the Chief Judicial Magistrate, Hisar, the Investigating Agency shall also produce Muskan alias Riya. Necessary blood samples should be drawn by the Chief Medical Officer/Civil Surgeon, Hisar and same be sent to the concerned laboratory at Hyderabad for conducing DNA test. This arrangement has been devised on the prayer made by counsel for the petitioner that petitioner is ready and willing to undergo DNA test and the complainant has also stated in the FIR that DNA test be conducted regarding the paternity of Muskan alias Riya. Issue notice of motion to learned Advocate General, Punjab, for 20.3.009. Meanwhile, in the event of arrest, petitioner shall be released on interim bail to the satisfaction of the Arresting Officer. Petitioner shall join investigation as and when called for. Petitioner shall also abide by the conditions specified under Section 438(2) Cr.P.C.” 2 Criminal Misc. No. M-6137 of 2009 Investigating Officer Umed Singh is present in Court. He has stated that blood samples were drawn under the orders of Chief Judicial Magistrate, Hisar. Chief Judicial Magistrate, Hisar had passed the following order: “Muskan alias Riya has been produced as per directions of Hon'ble High Court vide order dated 4.3.2009 and she has been identified by Radheysham accused/petitioner. Dr.P.S. Dhawan, CMO/Civil Surgeon has also appeared in pursuance of above-said directions. Dr.P.S. Dhawan CMO as well as Dr.Sapna Gehlawat Pathologist are directed to take the blood samples of Radheysham as well as Muskan alias Riya separately as per rules and after duly stamped and seal of CMO as well as Investigating Officer Umed Singh, be sent for DNA test to Centre for DNA Fingerprinting and Diagnostics, Hyderabad through Umed Singh today itself. Compliance report in this regard be also sent to Hon'ble High Court. Copy of this order be also given dasti to Umed Singh SI Investigating Officer.” Umed Singh has stated that samples could not be taken to DNA Fingerprinting and Diagnostics, Hyderabad, as it was not clarified in the order as to who will bear the expenses for conducting the DNA test by the Laboratory. It is stated that four samples were drawn and Laboratory at Hyderabad charges Rs.5000/- per sample. Since petitioner has come forward to absolve himself of the allegations, cost of Rs.25,000/- shall be borne by the petitioner. The cost shall be deposited in the Court of Chief Judicial Magistrate, Hisar. Samples, which have already been taken, be sent to laboratory forthwith. Investigating Officer shall not wait for the deposit of the amount. The amount be paid from the Government funds, subject to disbursal by the Court of Chief Judicial Magistrate, Hisar, later. 3 Criminal Misc. No. M-6137 of 2009 Present petition is disposed off with direction that petitioner shall remain on pre-arrest bail till the receipt of the DNA report. After the DNA report is submitted before the trial Court, the trial Court shall decide the regular bail application of the petitioner, taking into consideration report of DNA. [KANWALJIT SINGH AHLUWALIA] JUDGE March 20, 2009 rps 4