PANKAJ GARG Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) This petition under Section 438 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.) has been filed by the petitioner in FIR No.RC1(S)/2015 SCU.V/SCII CBI/New Delhi dated 07.01.2015 under Sections 120-B, 326, 417 and 506 IPC at Police Station SC-II CBI/New Delhi, wherein he has been summoned by order dated 12.02.2018 (Annexure P-2) on a report under Section 173 Cr.P.C. having been filed by the Central Bureau of Investigation (hereinafter referred to as 'CBI') alleging the petitioner to have committed offences punishable under Section 120-B read with Sections 326, 417 and 506 of the Indian Penal Code with substantive offence punishable under Section 326 IPC directing him to appear before the Special Judicial Magistrate, CBI, Panchkula, on 28.02.2018 and after rejection of his application under Section 438 Cr.P.C. by the learned Special Judge, CBI, Panchkula, by order dated 21.02.2018 (Annexure P-4).

(2.) Briefly the facts are that Civil Writ Petition No.13395 of 2012 was filed by Hans Raj Chauhan, a follower of Sant Gurmeet Ram Rahim, Head of Dera Sacha Sauda, Sirsa, Haryana, who alleged that he along with others had been got castrated by Gurmeet Ram Rahim through Dr. M.P. Singh and Dr. Pankaj Garg (petitioner) during the period 1999-2000 and had sought investigation of the case through CBI. The said writ petition was allowed by the learned Single Judge of this Court on 23.12.2014 directing registration of an FIR and investigation by the CBI. In pursuance to the directions issued by this Court, the above-mentioned FIR was registered. Petitioner had been summoned and he had joined the investigation as and when called upon to do so. Investigation continued with effect from January 2015 till the filing of the report under Section 173 Cr.P.C. on 01.02.2018. The Special Judicial Magistrate, CBI, Panchkula, took cognizance of the same on 12.02.2018 and summoned the petitioner to put in appearance in person on 28.02.2018. Offence under Sections 326 IPC although is triable by a Magistrate but being punishable with life imprisonment, the Magistrate, as per the provisions of Section 437 (1) (i) Cr.P.C., has no power to grant bail and, therefore, the petitioner apprehending that he would be sent to custody on appearance before the trial Court and thus, moved an application under Section 438 Cr.P.C. before the Special Judge, CBI, Panchkula, for grant of anticipatory bail, which was dismissed by order dated 22.02.2018, therefore, this petition.

(3.) It is the contention of learned senior counsel for the petitioner that there is an inordinate delay on the part of the complainant in approaching the High Court by filing a writ petition in the year 2012 levelling allegations with regard to the offences committed in the year 1999-2000. Petitioner has not been named in the FIR which has been registered in pursuance to the directions issued by the High Court in the writ petition. That apart, he contends that for three long years when the investigation was in progress, petitioner was not arrested, rather he had been joining investigation all through as and when he was called upon to do so. His submission is that the petitioner had been faithfully cooperating with the investigating agency to its satisfaction and has promptly appeared and joined investigation. There has never been any allegation with regard to the petitioner ever influencing any person or hampering or tampering with the collection of evidence. He has never abstained or made an effort to evade the process of law in any manner. Petitioner has his own house in Panchkula, where he is residing with a family comprising of wife, two minor kids and old age parents, who are dependent on him. He has a well established clinic where he has good practice. He has deep roots in the society and a well known Colorectal Surgeon with ten inventions to his name with various awards granted to him for his contribution to the medical profession. During these three years of investigation, he has gone abroad on various occasions but has never thought of fleeing from law as he is well established in Panchkula. Petitioner is a law abiding citizen and he has never been named or involved in any criminal case as an accused except for the present FIR where also he asserts that he is innocent. Counsel submits that the petitioner be granted the concession of anticipatory bail. His assertion is that bail is a rule and jail is an exception. In this regard, he has placed reliance upon various judgments passed by the Hon'ble Supreme Court. Reliance has also been placed upon the judgments of the Delhi High Court in Court on its motion Versus CBI reported as, 2006 4 RCR(Cri) 206, which has been confirmed by the Division Bench of the same Court by judgment dated 27.10.2017 passed in Criminal Reference No.4 of 2017 titled as Court on its own motion Versus State. Reliance has also been placed upon the observations of the Hon'ble Supreme Court in SLP (CRL.) 151 of 2018 titled as Dataram Singh Versus State of Uttar Pradesh & Anr. decided on 06.02.2018. He, therefore, prays that the present petition deserves to be allowed.