IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9109/2018 Between:
Mr.Afrid Pasha, S/o Payaz Pasha, Aged about 18 years, No.44, 2nd Cross, Pipe Line Road, Hiyaznagar, Bangalore – 560 078. ...Petitioner (By Sri.Kumar, Advocate) And:
State by Kumara Swamy Layout P.S., Represented by State Public Prosecutor, High Court Building, Bengaluru – 560 001. ...Respondent (By Sri. K.P.Yoganna, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.307/2018 (Spl.C.C.No.779/2018) registered by Kumaraswamy Layout Police Station, Bengaluru for the offence punishable under Sections 363 and 376 of IPC and Sections 4 and 6 of POCSO Act.
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., to release him on bail in Crime No.307/2018 (SPL.C.C.NO.779/2018) of Kumaraswamy Layout Police Station for the offences punishable under Sections 363 and 376 of IPC and Sections 4 and 6 of POCSO Act.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State. Though notice has been served to the complainant, she has remained absent.
3. Gist of the complaint is that on 24/07/2018 at about 3:00 p.m., complainant’s daughter was missing from the house and the missing complaint was filed. It is further alleged that her daughter was studying in 9th standard and indulged in extra unwanted activities and as such, the complainant asked her to stay at home. Subsequently, the victim girl was found in Mumbai and there she revealed that accused/petitioner took her to the said place and there she has been sexually assaulted. On the basis of the complaint, a case was registered and accused has been apprehended.
4. It is the submission of the learned counsel for the petitioner that the complaint and other material disclose the fact that the victim girl has been indulged in extra unwanted activities and on her own volition, she had gone to Mumbai. The said fact was substantiated in the statement recorded under Section 164 of Cr.P.C., before the Magistrate and there is no such allegation made that the accused/petitioner has sexually assaulted the victim girl. He further submitted that the statement recorded by the Magistrate is inconsistent with the statement given before the Police. It is further submitted that the petitioner/accused is ready to abide by any conditions imposed on him by this Court and ready to offer sureties. On these grounds, he prayed 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 records clearly go to show that the victim, who is a minor was abducted by the petitioner on 24/07/2018 and thereafter, took her to Mumbai, made her to stay in a lodge and there, the accused committed forcible sexual assault on her against her will and thereby he has committed the alleged offence. The petitioner/accused has directly involved in the alleged crime and if he is released on bail, he may abscond and may not be available for trial. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and other materials, which has been produced along with the petition and the submissions made by learned counsel appearing for the parties.
7. As could be seen from the records, that the statement of the victim girl came to be recorded on 10/08/2018 by the Magistrate and there was no allegation of any sexual assault committed by the accused on her while she was in Mumbai. Even the said statement discloses the fact that the victim girl went to Mumbai along with her friend for the purpose of wandering and after coming to know that her mother has filed the missing complaint, the Mumbai Police apprehended her and brought her and the mother was not knowing that her daughter went to Mumbai along with her friend. The said statement and the statement given before the Police is inconsistent and does not reveal anything about the alleged offence. Learned HCGP brought to the notice of this Court that other injuries have been noticed on the minor girl but when the complaint itself clearly goes to show that the daughter of the complainant has indulged in extra unwanted activities and they have asked her to stay in home and thereafter, she has gone to Mumbai itself shows that the character of the said victim girl is also doubtful. Under the said facts and circumstances, the contention of learned HCGP cannot be accepted. Under such circumstances, I feel that by imposing stringent conditions if the petitioner/accused is ordered to be released on bail, it would meet the ends of justice.
8. In the light of the discussion held by me above, the petition is allowed and petitioner/accused is ordered to be released on bail in Crime No.307/2018 (SPL.C.C.NO.779/2018) of Kumaraswamy Layout Police Station for the offences punishable under Sections 363 and 376 of IPC and Section 4 and 6 of POCSO Act 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 indulge in similar type of criminal antecedents.
3. He shall not tamper the prosecution evidence directly or indirectly.
4. He shall mark his attendance once in 15 days in the jurisdictional police station between 10.00 a.m., to 5.00 p.m., for a period of eight months.
5. He shall not leave the jurisdiction of the Court without prior permission.
Sd/- JUDGE SMJ