In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc. No.M-37353 of 2010 ..... Date of decision:4.4.2011 Surinder Singh Banga .....Petitioner v. State of Punjab .....Respondent .... Present: Mr. R.K. Handa, Advocate for the petitioner. Mr. V.P.S. Sidhu, Assistant Advocate General, Punjab for the respondent-State. ..... S.S. Saron, J. Heard learned counsel for the parties. The petitioner seeks regular bail in a case registered against him for the offences under Sections 376, 406, 420 and 120-B IPC. The FIR in the case has been registered on the statement of the prosecutrix, who is a resident of Hoshiarpur. It is alleged that during the year 2004 she was working in the Punjab and Sind Bank (`Bank – for short), Tanda Road, Hoshiarpur where she came in contact with the petitioner who was also working in the said Bank. The petitioner started visiting the house of the prosecutrix. Seeing their weak financial condition, he assured the mother of the prosecutrix that he would send the prosecutrix to Canada for a sum of `8.5 Lacs and there was nothing to worry. The petitioner about 3½- 4 years back took `1 Lac and passport of the prosecutrix. After some time, the petitioner along with his wife Inderjit Kaur came to their house and took a sum of `2,70,000/- from the mother of the prosecutrix in her presence. In Cr. Misc. No.M-37353 of 2010 [2] a similar manner upto October 2009 he received a sum of `8 Lacs on different occasions. In the beginning of November, the mother of the prosecutrix received a phone that her work had been done and she should be ready by 13.11.2009 and keep ready `50,000/-. On 13.11.2009, the petitioner came to their house and after receiving the balance of `50,000/-, he took the mother of the prosecutrix and the prosecutrix to Delhi. On 14.11.2009, they reached Delhi in the morning. After leaving the mother of the prosecutrix and the prosecutrix in a hotel, he left by saying that he was going for their work and he came back in the evening. He assured the mother of the prosecutrix that he would send the prosecutrix safe and sound to Canada. He further said that since she (mother of the prosecutrix) remains ill she should go back to Hoshiarpur. On this assurance, the mother of the prosecutrix was sent back to Hoshiarpur from Delhi. On 15.11.2009, the petitioner started saying that the flight was late and it was on 20.11.2009. From the night of 15.11.2009, it is alleged that the petitioner started committing rape on the prosecutrix forcibly and by holding out threats that in case she informed anybody then he would kill her and her whole work would be spoiled. On 18.11.2009, it is alleged that the petitioner took the prosecutrix to Hardwar in a Hotel by saying that they have an office there and the papers would be received there. On 22.11.2009, he took the prosecutrix to some other room and during this period he used to harass her and he was doing all this by playing with her and her honour. In the morning of 1.12.2009, while leaving the petitioner asleep in the room, she came back to Hoshiarpur. On reaching Hoshiarpur in the evening of 1.12.2009, she narrated the whole matter to her family Cr. Misc. No.M-37353 of 2010 [3] members. When the prosecutrix reached home, she came to know from her younger sister that on 22.11.2009 their mother had received a telephone call in the night from the petitioner. He had spoken to the mother of the prosecutrix. The mother's whereabouts were not known from 23.11.2009 till the date of lodging the FIR on 8.12.2009. The report in this regard was entered in the concerned Police Station. The petitioner and his wife Inderjit Kaur had neither returned them their amount of `8.5 Lacs nor they had returned her passport nor she had been sent abroad to Canada. In this manner, the petitioner had been playing fraud and had been forcibly committing rape with the prosecutrix without her consent. She requested that action be taken against the petitioner. It may be noticed that the medical examination of the prosecutrix was conducted and two vaginal swabs and two vaginal slides were taken which were sent to the Chemical Examiner to Government of Punjab. The Chemical Examiner found that no spermatozoa was detected in the contents of the said exhibits i.e. two vaginal swabs and two vaginal slides. The medical examination of the prosecutrix was conducted on 4.12.2009. The medical examination does not show that the petitioner had suffered any injury. Besides, it was observed that the hymen was not intact and vagina easily admitted index finger. The doctor has opined that based on MLR report and Chemical Examiner's report possibility of sexual intercourse with the prosecutrix cannot be ruled out. It may be noticed that the prosecutrix was aged about 26 years at the time of incident and she was mature enough to go with the petitioner. Besides, she stayed with the petitioner according to her complaint on Cr. Misc. No.M-37353 of 2010 [4] 15.11.2009 and then went with him on 18.11.2009 to a Hotel at Hardwar. Then she went with him to another room on 22.11.2009. It is on 1.12.2009, while the petitioner was sleeping that she left him in the room and came to Hoshiarpur. Therefore, she has stayed with the petitioner for a period of 15 days. Besides, the petitioner is a Bank employee and is not a travel agent. Therefore, the possibility of the prosecutrix and her mother giving him huge sum of `8.5 Lacs may not be there. It is also not shown as to what is the source for giving an amount of `8.5 Lacs by the prosecutrix and her mother to the petitioner. According to the learned counsel for the petitioner the offence of rape is not committed within the territorial jurisdiction of Hoshiarpur. In any case, that may be a continuing offence where the subsequent act of rape may be a consequence of the act of surreptitiously taking away the complainant. This is to be considered by the trial Court. However, in the facts and circumstances, it would be just and expedient that the petitioner is granted the concession of regular bail. Accordingly, the criminal miscellaneous petition is allowed and the petitioner on his furnishing personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, Hoshiarpur shall be admitted to bail. Nothing stated or observed herein shall be construed as an expression of opinion on the merits of the case and the learned trial Court shall consider the case on the basis of evidence and material as adduced Cr. Misc. No.M-37353 of 2010 [5] before it independently and uninfluenced by any observation made herein. April 4, 2011. (S.S. Saron) Judge *hsp*