IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc. No.M-13867 of 2010 Date of decision: 27.7.2010 Jasvir Singh ......Petitioner Vs. State of Punjab and another ...Respondents CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.Deepak Sabherwal, Advocate, for the petitioner. Mr. R.S.Rawat, AAG, Punjab. Ms. Amandeep Soni, Advocate, for the complainant. **** ORDER The present petition has been moved on behalf of Jasvir Singh for grant of anticipatory bail in case FIR No.178 dated 27.12.2009 under Sections 363/366-A/506/34 IPC and section 376 IPC which was added later on. While issuing notice of motion on 12.5.2010, the following contentions raised by the learned counsel for the petitioner were noted down: “ Learned counsel for the petitioner contends that although the earlier application filed by the petitioner was dismissed by this Court on 16.2.2010 but subsequently on the basis of new developments, bail has been granted to co-accused by the trial Court. Learned counsel further contends that as per chemical report, the fact of rape has not been proved and moreover the complainant has also submitted an affidavit that the rape was not committed Crl.Misc. No.M-13867 of 2010 2 upon her.” Learned counsel for the petitioner submits that although earlier bail application of the petitioner was dismissed but subsequently on the basis of report of the Chemical Examiner, fresh bail application has been moved and the allegations contained in the FIR are not supported by medical evidence. As per Report of the Chemical Examiner dated 19.1.2010, the following observation has been made: “ Spermatozoa were detected in the contents of Exhibit III. No Spermatozoa were detected in the contents of Exhibits 1,II, IV and V.” Learned counsel for the petitioner further submits that initially when FIR was registered, there was no allegation of rape but on the basis of supplementary statement recorded later on, the allegation of rape is there which is totally an improved version. It is also the argument of learned counsel for the petitioner that an affidavit has been filed by the prosecutrix wherein she has specifically stated that no rape was committed upon her by accused Uttam Singh etc. She has been changing her stand from time to time and her statement is not worthy of credence. Learned counsel for the petitioner has also relied upon the judgments of Hon'ble the Apex Court in Suresh N.Bhusare and others v. State of Maharashtra (1999) 1 SCC 220, Lalliram and another v. State of Madhya Pradesh (2008) 10 SCC 69, Yerumalla Latchaiah v. State of A.P. (2006) 9 SCC Crl.Misc. No.M-13867 of 2010 3 713 and of this Court in Koshori Lal V. State of Haryana 2009(5) RCR (Criminal) 446 to support his contention. Learned counsel for the complainant as well as learned counsel for the State oppose the bail on the ground that a serious offence has been committed by the petitioner. It has also been brought to the notice of the Court by the learned counsel for the complainant that the prosecutrix has not filed any affidavit before the trial Court and when it came to their notice, an application has also been moved before the SSP, Kapurthala and an application for cancellation of bail has also been moved wherein notice has been issued to the State for 4.8.2010. Ms.Amandeep Soni, Advocate appearing for the complainant opposes the bail on the ground that the argument raised by the learned counsel for the petitioner is not sustainable in view of the report of the Chemical Examiner dated 19.1.2010 wherein it has been observed that Spermatozoa were detected in the contents of Exhibit III. It is clear from the report of the Chemical Examiner that rape has been committed. Learned counsel for the complainant also submits that the second anticipatory bail application is not maintainable in view of the judgment of this Court in Sanjeev Kumar v. Central Burau of Investigation through its Director 2005(2) RCR (Criminal) 856. Mr. R.S.Rawat, learned AAG, Punjab opposes the bail on the ground that the judgments relied upon by the learned counsel for the petitioners are not relevant in the case as even statement of the prosecutrix has not been recorded and unless there is evidence on record, nothing can Crl.Misc. No.M-13867 of 2010 4 be said as the argument is based on evidence which has not come yet.The argument with regard to consistency or inconsistency in the statement of the prosecutrix is not relevant at this stage. Moreover, the prosecution has also moved an application for cancellation of bail on the basis of affidavit which has wrongly been procured by the co-accused which cannot be relied in the present case. I have heard the submissions made by the learned counsel for the parties and have also gone through the documents available on record. The main arguments raised by the learned counsel for the petitioner are that case of the prosecutrix is not supported by the report of the Chemical Examiner and the prosecutrix has been changing her stand from time to time, cannot be relied at this stage and moreover the trial Court has granted bail to the co-accused by relying upon the affidavit filed by the prosecutrix but prosecutrix has denied that any such affidavit was ever given by her. As far as the submission made by the learned counsel for the petitioner with regard to Report of Chemical Examiner is concerned, spermatozoa were detected in the contents of Exhibit III. As per Chemical Examiner report, it cannot be said that factum of rape has not been supported by this report when under this clause the contents against Serial No.III it has specifically been mentioned. Moreover, the judgments relied upon by the learned counsel for the petitioner are passed in appeal where all evidence from both sides are on record. In the present case, even the statement of the prosecutrix has not been recorded. Crl.Misc. No.M-13867 of 2010 5 During the course of dictating order, learned counsel for the petitioner has also stated that even as per statement of the doctor, no case of rape has been made out. It is a settled principle of law that anticipatory bail is an extra ordinary remedy. The Hon'ble Supreme Court has laid down in case Adri Dharam Dass Vs. State of West Bengal 2005(2) R.C.R (Criminal) 32 that powers exercisable under Section 438 Cr.P.C. are somewhat extra ordinary in character and is only in exceptional cases where it appears that a person may be falsely implicated. So, the petitioner in order to seek the relief of anticipatory bail in this case is required to make out a special case in his favour or the case appears to be false or where the applicant is likely to be harassed unnecessarily due to some extraneous reasons. Similarly, in Bal Chand Jain v. State of M.P. AIR 1977 SC 366, the Hon'ble Apex Court has laid down the following proposition with regard to grant of anticipatory bail:- “(i) The power under Section 438 Cr.P.C. is of an extraordinary character and must be exercised sparingly and in exceptional cases only. (ii)The said power is not unguided or uncanalised but all the limitations imposed in the preceding Section 437 Cr.P.C., are implicit therein and must be read into Section 438 as well. (iii)In addition to the limitations imposed in Section 437, the petitioner must further make out a special case for the Crl.Misc. No.M-13867 of 2010 6 exercise of the power to grant anticipatory bail.” So, keeping in view the facts and circumstances of the case, and the gravity and seriousness of the offence, no ground is made out for granting anticipatory bail to the petitioner. Under these circumstances, the present petition for anticipatory bail is hereby dismissed. (DAYA CHAUDHARY) JUDGE July 27, 2010. raghav