CRM-M-13543 of 2009 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Crl. Misc. Nos.24976, 34652, 34658 & 34659 of 2009 and CRM-M-13543 of 2009 DATE OF DECISION: 28.08.2009 **** Rajinder Kaur and others . . . . Petitioners VS. State of Punjab . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.H.S. Sirohi, Advocate for the petitioners. Mr.K.D. Sachdeva, Addl. A.G. Punjab for the respondent/State. Mr.A.D.S. Ghuman, Advocate for the complainant **** RAKESH KUMAR JAIN J.(ORAL) Crl. Misc. Nos.24976, 34652, 34658 & 34659 of 2009 Allowed as prayed for. CRM-M-13543 of 2009 This is a petition under Section 438 Cr.P.C. seeking anticipatory bail in case FIR No.10 dated 21.2.2009 registered under Sections 363, 366 and 120-B IPC at Police Station Dera Baba Nanak, Batala, District Gurdaspur, in which Section 376 IPC was added later on. The aforesaid FIR has been registered on the statement of Balwinder Singh, who has stated that he was married about 10 years ago with Kuljit Kaur daughter of Paras Singh and they have three sons and one daughter. His neighbour Gurpreet Singh alias CRM-M-13543 of 2009 - 2 - Babbu son of Kulwant Singh came back from Iraq about six months back. Gurpreet Singh often came to visit his house and stated that in case his wife had married with him she would have enjoyed her life to the full and he would have kept her like a queen. On 18.2.2009, in the evening after taking their meals, all the family members went to sleep. At about 11.00 PM his youngest son aged approximately one and a half year started crying as a result of which, he woke up and found that his wife was not there on the bed. He immediately called his sister-in-law (Ranjeet Kaur) wife of Tarsem Singh and went alongwith her to the house of Gurpreet Singh alias Babbu and found that he was also not present in his house. His mother Rajinder Kaur, father Kulwant Singh and brother Harjeet Singh met them but they showed their ignorance about the whereabouts of Gurpreet Singh. On 19.2.2009, he came to know that Kulwant Singh father of Gurpreet Singh and his mother Rajinder Kaur and brother Harjeet Singh had also left their house. He tried to trace out his wife with the help of his relatives but failed. He then alleged that his wife Kuljit Kaur has been enticed away by Gurpeet Singh with an intention to marry her and in this act, mother, father and brother of Gurpeet Singh are also responsible. He also alleged that his wife had taken away gold ornaments i.e. Bangles/two pairs of ear rings, five rings one necklace, one Jikka, one chain and Rs.50,000/- as cash. Before coming to this Court, petitioners had applied for an anticipatory bail before the Court of Addl. Sessions Judge, Gurdaspur, which was dismissed on 27.4.2009. Before that, the petitioners had filed CRM-M-6269 of 2009 titled as “Gurpreet Singh and others Vs. State of Punjab and CRM-M-13543 of 2009 - 3 - others” seeking quashing of the aforesaid FIR, in which the complainant was also impleaded as party (respondent No.4). In the said petition, following order was passed on 9.3.2009: - “Balwinder Singh, respondent No.4, had lodged FIR No.10 dated 21.2.2009 at Police Station Dera Baba Nanak, District Gurdaspur, under Sections 363, 366 & 120-B IPC. It has been stated therein that his wife Kuljit Kaur has been induced by the petitioners and she had left the matrimonial home. Therefore, offence under Sections 363, 366 & 120-B IPC has been committed. In support of the petition, an affidavit of Kuljit Kaur has been annexed as Annexure P2 in which it has been stated that she was married with Balwinder Singh, complainant. She has given birth of four children, out of which three sons and one daughter was born. Balwinder Singh was a habitual drunked and is an addict and used to harass Kuljit Kaur. Therefore, she had left the matrimonial house. Kuljit Kaur is present in the Court. She has been identified by Mr.T.P.S. Tung, Advocate. She has stated that she at her own accord and fed up with the behaviour of the complainant had left the house of Balwinder Singh and the accused / petitioners have no role to play. Issue notice of motion. On the asking of the Court, Mr.Mehardeep Singh, learned Assistant Advocate General, Punjab, accepts notice on behalf of respondents No.1 to 3. A copy of petition has been supplied to him. CRM-M-13543 of 2009 - 4 - Kuljit Kaur will also appear before the Investigating Officer on 13.3.2009 at 10.00 AM who shall record the statement of Kuljit Kaur. Case to come up for further hearing on 17.3.2009. Process dasti.” After notice of motion, respondents No.1 to 3 filed a reply, in which it was alleged as under: “That, on 25.3.2009 Kuljit Kaur appeared before the I.O. who recorded her statement under Section 161 Cr.P.C. and on the same day the statement under Section 164 Cr.P.C. of Kuljit Kaur has been recorded by Sh. R.K. Sharma, Sub Divisional Judicial Magistrate, Batala. However, it is submitted that on the basis of statement of Kuljit Kaur, offence under Section 376 IPC has been enhanced in the FIR No.10 dated 21.2.2009.” Ultimately, the aforesaid petition was withdrawn by the petitioners on 4.5.2009, in which following order was passed: “Counsel for the petitioners state that in view of the reply filed by the State, he be permitted to withdraw the present petition. As prayed, dismissed as withdrawn.” After the withdrawal of the aforesaid petition, the petitioners had filed the present petition for anticipatory bail, which was received by the High Court on 15.5.2009. At the time of filing the present petition, it was mentioned that the case has been CRM-M-13543 of 2009 - 5 - registered against the petitioners under Sections 363, 366 and 120-B IPC. On 18.5.2009, following order was passed by this Court: Learned counsel for the petitioner has submitted that statement of the prosecutrix under Section 164 Cr.P.C. has been recorded. Notice of motion for 01.07.2009. Till then arrest of the petitioner shall remain stayed.” Thereafter, the petitioners filed miscellaneous application, namely, Crl. Misc. No.28609 of 2009 in which, it was prayed that Section 376 IPC be also added in the heading of the petition for the grant of anticipatory bail. The said application was allowed by this Court vide its order dated 2.6.2009 in which it was ordered that the stay granted by this Court on 18.5.2009 for an offence under Sections 363, 366 and 120-B IPC shall also operate for an offence committed under Section 376 IPC. On the next date of hearing dated 1.7.2009, it was pointed out by the counsel for the complainant that the offence under Section 376 IPC has not been added later on rather it has already been added at the time when the petition was filed before this Court. Therefore, the petitioners have deliberately concealed the mentioning of offence under Section 376 in order to obtain a favourable order from this Court. As against this, learned counsel for the petitioners has argued that in an application, namely, Crl. Misc. No.28609 of 2009, supported by an affidavit of Gurpreet Singh, they have specifically mentioned that they came to know about addition of Section 376 IPC on 28.5.2009 when they had shown the order of interim stay to the Police. He also submits that the petitioner (Gurpreet Singh) has CRM-M-13543 of 2009 - 6 - already made a statement before this Court in the petition, namely, CRM-M-6269 of 2009, that she has gone with the accused on her own accord. In this regard, learned counsel for the State has argued that the said statement was recorded on 19.3.2009 whereas the statement under Section 164 Cr.P.C. before the Judicial Magistrate was recorded on 25.3.2009. In her statement dated 25.3.2009, she has categorically stated that Gurpreet Singh (petitioner No.3) has committed rape upon her after abduction. He was helped by his parents i.e. petitioners No.1 and 2. It is also submitted by learned counsel for the State as well as by the complainant that the person, who had appeared before the Court on 9.3.2009 could be any one because she has not been identified either by respondent No.4 (husband of the prosecutrix) or by her any relatives. It is also pointed out by the counsel for the complainant that the petitioners have also deliberately did not implead the complainant in the present petition as they were afraid of a contest by him, although, he was impleaded as party in the CRM-M-6269 of 2009 which was dismissed as withdrawn. Keeping in view the entire facts and circumstances of the case coupled with mis-statement and gravity of the offence committed by the petitioners under Sections 363, 366 & 376 IPC with Section 120-B IPC, I do not find it to be a fit case for the grant of anticipatory bail. Hence the present petition is hereby dismissed. (RAKESH KUMAR JAIN) AUGUST 28, 2009 JUDGE vivek