IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.7287/2018 Between:
Abdul Aseer S/o Abdul hameed, Aged 19 years, No.6-24/1, 6th Block, Near Ramdev Complex, Krishnapura, Katipalla Mangaluru – 575014 D.K.District. ...Petitioner (By Sri B.Lathif, Advocate) And:
State of Karnataka Rep by Police Inspector Surathkal Police Station Mangaluru – 575003 D.K. District Rep. SPP High Court Building Bengaluru – 01. ...Respondent (By Sri.M.Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 of the Cr.P.C., praying to enlarge the petitioner on bail in Cr.No.187/2018 of Surathkal Police Station, Mangaluru City for the offences punishable under Sections 376 of IPC and 6 of POCSO Act, 2012.
This Criminal Petition coming on for orders, this day, the Court made the following:
O R D E R The present petition has been filed by the petitioner/accused under Section 439 of Cr.P.C seeking to release him on bail in Crime No.187/2018 of Surathkal Police Station for the offences punishable under Section 376 of IPC and 6 of POCSO Act, 2012 2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. The gist of the complaint is that the victim and the petitioner are relatives on the maternal side and they were residing together. The accused/petitioner used to visit the house of the victim regularly. Because of the said visit, they developed intimacy. During March 2018 when the victim went to her grand father’s house in Surathkal in holidays, the petitioner/accused also came there and on such stay during night, they had sexual intercourse with each other and petitioner/accused pleaded not to disclose the same to anybody. Subsequently, after some months, the menstrual cycle was changed, she visited to the hospital and on examination by the Doctor, it was revealed that she carrying four months. The victim was minor and a complaint was registered.
4. It is the submission of the learned counsel for the petitioner/accused that the petitioner/accused and the victim are loving with each other and the petitioner/accused has not forcibly sexually assaulted against her will. As such, it does not constitute an offence under Section 376 of IPC. He further submitted that by referring to the statement recorded under Section 164 of Cr.P.C that in the statement of the victim, she has deposed that she was loving the petitioner/accused and the said fact was not informed to her mother and in the month of March, 2018 during holidays, they had been to the grandmother’s house and on one night, they had a physical contact and subsequently, as there was change in the menstrual cycle, she went hospital to check up with doctor and came to know that she is carrying 4 months and thereafter, the family members have also agreed for the marriage and there is some halt and she has not given any complaint. The petitioner/accused should not be put to trouble. Already, charge sheet has been filed and the petitioner/accused is not required for the purpose of further investigation or interrogation. He further submitted that the alleged offences are not punishable with death or imprisonment for life. If bail is granted, he is ready to abide by any conditions imposed by this Court and also ready to offer surety. On these grounds, he prays to allow the petition and to release the petitioner/accused on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the petitioner/accused has sexually assaulted the minor victim who is aged about 15 years without her consent and against her will. Though the statement under Section 164 of Cr.P.C has been recorded, but that is a matter which has to be appreciated only at the time of trial. The offences alleged against the petitioner/accused is heinous in nature and are punishable with imprisonment for 10 years and there is a every possibility of the petitioner/accused inducing the victim girl and he may tamper with the prosecution evidence. He further submitted that if the petitioner/accused is enlarged on bail, he may abscond and he may not be available for trial. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submission made by the learned counsel appearing for the parties and perused the records.
7. On going through the statement of the victim recorded under Section 164 of Cr.P.C that it indicates the fact that the victim is 15 years and unconsciously, they had sex on the night of March, 2018. The said fact has also not been disclosed either to the parents or to any members of the family. If really she was resisted the said act of the petitioner/accused, definitely she could have human crime and she could not have immediately informed the said fact to the other members of the family that itself clearly goes to show that she was a consenting party and even no incriminating material under Section 164 of Cr.P.C recorded before the Magistrate. Already, charge sheet has been filed. The petitioner/accused is not required for the purpose of investigation or interrogation. Under the above said facts and circumstances, I feel that if the petitioner/accused is ordered to be released on bail, it would meet the ends of justice.
8. In that light, petition is allowed.
Petitioner/accused is enlarged on bail in Crime No.187/2018 of Surathkal Police Station for the offences punishable under Section 376 of IPC and 6 of POCSO Act, 2012, subject to the following conditions:-
1. Petitioner/accused shall execute a personal bond for a sum of Rs.2,00,000/-(Rupees Two lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.
2. He shall not leave the jurisdiction of the Court without prior permission.
3. He shall mark his attendance once in a month between 10.00 a.m., and 5.00 p.m., before the jurisdictional police till the trial is concluded.
4. He shall not tamper the prosecution evidence in any manner and shall not indulge in similar type of criminal activities.
5. He shall not tamper with the prosecution evidence directly or indirectly in any manner.
SD/- JUDGE NBM