IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION No.7502/2019 BETWEEN:
Amit Kumar Banerjee S/o Sri. Uttam Kumar Banerjee, Aged about 31 years, Presently R/at #140, 17th Main, 3rd Cross, Mico Layout, Begur, Bangalore -560068.
Permanent R/o # 118, Borragarh Colony, Near Durga Mandir. Borragarh, Bhagaband, Dhanbad, Jharkhand-828111. …Petitioner (By Sri.Mohammed Pasha C, Advocate) AND:
State of Karnataka, R/by Beguru Police Station, Rep. By State Public Prosecutor, High Court Campus, Bengaluru-560001. ... Respondent (By Sri.Rohith B.J., HCGP) This Criminal Petition is filed under Section 438 of Cr.P.C., praying to enlarge the petitioner on bail in the event of his arrest in Cr.No.153/2019 of Beguru Police Station, Bangalore for the offence punishable under Sections 376, 313, 324 of IPC.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R Heard learned counsel for the petitioner and the learned HCGP for the respondent-State. Perused the records.
2. The petitioner is the sole accused in Cr.No.153/2019 of Beguru Police Station, Bangalore for the offence punishable under Sections 376, 313, 324 of IPC.
3. The brief facts of the case are that the victim lady who is aged about 30 years, mother of two kids lodged a complaint against the petitioner stating that the petitioner often calling her for counseling and for meditation. The petitioner used to take her along with her kids to Goa State to spend Holidays and they used to stay in different places including Goa on various occasions. It is stated that on those occasions, he had sexual intercourse against her will. Thereafter, they came back to Mico Layout, Bengaluru and there the petitioner assaulted her with a stick used for preparing chapathi. It is stated that she has undergone abortions more than two times. On the basis of these allegations, a complaint came to be lodged against the petitioner.
4. Of course, the petitioner is entitled to be enlarged on bail under Section 438 of Cr.P.C., if he proves that the offence alleged against him are doubtful and a false case has been foisted against him. Whether the Court can tentatively look into the materials in this background or not and the complaint if it is looked into as it is, it creates a doubt whether Section 376 of IPC is attracted or not. It is just and necessary for this Court to extract entire complaint averments made by the victim lady which are as under:
“My name is Rachna Dutta, I am in Bengaluru since 10 years. I met with Amit Kumar Banarjee in 2018 in March month for some problem. He helped me and given guidance. He started giving me counseling and spiritual life introduction. He started giving me call twice in a day and introducing about spiritual life. He told me to stop talking with everyone. Amit came to know that I was trusting him a lot, after some times, he proposed me for a relationship two to three times, but I refused, slowly-slowly I started all those work which Amit was telling me to do. In October month 2018, he have marriage proposal and told that he want to get married in some month in Register Office. He said that Majistrate is his close friend and in one day we will get marriage certificate. I asked Amit that whey he was to marry with me? Because I have two kids also I am widow, then Amit told that in spiritual life it is very high and you will be my wife. After that I said clearly to Amitji that need to think about that because suddenly this matter came, so can’t take any decision. Amit said that OK, come with me Goa tomorrow. There meditation seminar is going, so we both also will join. I believed him, because he only giving me spiritual life introduction. Next day he took me Goa, after reach there we took room in smily holidays Hotel. There was two rooms. He told that I can be in one room and he will in other room. “Medition Seminar” he said that will go tommorro, because very tired, because he did driving Bengaluru to Goa. He purchased alcohol and snacks, he offered me also Vodka and said, that don’t think that’s your life and your tiredness will go off, while taking drink, he started adding another alcohol in my Vodka. I told Amit not to do so, because I never look like that, since my first husband death I took only three times with my family members. But Amit did not stop, that drink was very bad result, because I was not able to open my eyes and feeling badly omit, then Amit told me take the glasses and plates and clear the bed and sleep when I was taking the glasses, he pulled me and started rape, he did me natural sex, even I was not able to push him back that day he did two times, when I woke-up my head was paining badly, I cried front of Amit and asked, that why he did? Amit said that this sex energy was block off in your spiritual journey, this was very important, if I tell you before, then you never will be ready, that’s why I never said to you whenever I was sleeping he used to do sex unnatural in November month, he called me to his house for meditation and said, that his room met went to Kerala so we can do very silently and comfortably, when I went that day again he did unnatural sex, even he said that he never will do forcibly, but he did, that day night when I was sleeping, he did three times and said that don’t worry I am going to be your husband for marriage, he took my documents also, but never send to sub- registrar office, now I came to know that, he used my documents for GST registration. He said that he worked with CBI team and intelligence Bureau, when he called me his room in November month 2018, in next day when his friend came back home suddenly, he took me village Jungle side which is coming to Begur side, there also he started forcing me for sex in the nigh time. I said no but Amit was forcing me, that day when I started crying then, he stopped otherwise he removed clothes, in the January month when my pregnancy was two months 10 days that time he gave forcefully tablets, before he said about marriage that whenever he is sitting in mediation…he is getting vibration that we should get married in Jan. But in Jan also he gave reason that first I should learn work, once I decided to go back home, but he called me, my kids back whenever he did unnatural sex it was paining. I was not able to tell to others, I was feeling guilty, that now to tell and to whom I scared badly with Amit because the way he started his behavior with me in the four wall, which can not able to explain, I got three time pregnancy but he never to take hospital. When he gave first time tablets after that starts also he did forcefully sex. In the month of April I did fighting with him, because that time again I was pregnant and when I was sleeping. He used to do unnatural sex. I told that time to Amit that he is not getting married but doing in wrong way without my getting married but doing in wrong way without my permission. After that he beated me with puri roller and curtain rode. But next day he starting giving love and saying sorry and said that your body chakra is not in balance that why you started thinking about physical world. Somewhere Amit realized that I will tell this matter to others, that’s why he took to my kids and me Goa and said that in Goa we will get injection because of unnatural was he did when I was taking bath, while coming from Goa my second pregnancy also got turminate, because he gave tablets forcefully. Finally I decided to involve his building owner and society members, but feeling scared that who will believe me. Amit said to me before giving this complaint, that his friends will do my rape if I tell to any one, he even took my two lakhs sixty thousand and sold my bike without my permission to his claintJaypal and never tot any amount, he made my documents for GST to create fake bills. Today I am physically very week because frequently three times pregnancy terminate, because he never gave time to rest, frequently he said falls commentments but I was helpless, because before he told through me that we husband wife. I lost faith and got badly scared that to whom I should say. He pulled down my dignity and confidence. Fisically and sexually mentally harassment he gave, he always closed my mouth while having, because my kids also with me. Only because of kids and scaryness I did not opened my mouth.
I am requesting to department to help me out that’s true, that for some time I got lost my faith and confidence, But I never did any wrong think.
Please help me, take the action fast and do justice.”
4. On careful perusal of the entire materials available on record, it disclose that after she begets two children, she started wandering with the petitioner to various places knowing fully well that the petitioner proposed her on many occasions and wanted to have relationship with her. Though she refused at earlier stage but slowly she started living together with the petitioner. Thereafter, both the petitioner and the victim lady went to various places and enjoyed their holidays in Hotels, Goa and other places by consuming alcohol and having physical contact each other for so many days i.e., from 2008 onwards. The complaint also discloses that there was some financial transaction between the petitioner and the victim lady to the extent of Rs.2,60,000/- and according to the complainant, the petitioner has taken that amount but he did not repay the same. He has also taken her signature on many documents to create fake bills etc.
5. Therefore, looking to the above said facts and circumstances of the case, it is doubtful whether she is consenting party or really there was any physical contact between each other against her will and whether the petitioner has committed an offence under Section 376 of IPC or not? As noted above, the complaint also contain some financial transactions and allegations to creation of GST bills which shows that it is not only a matter of physical contact perhaps both have entered into several financial transactions and same would have promoted the victim lady to lodge a complaint against the petitioner, all these facts have to be looked into during the course of full- dressed trial. Though, various incidents have taken place in the year 2008 but the complaint was lodged on 06.09.2019 after long lapse of time but same has not been properly explained. She may be explained during the course of trial but at present in the absence of such explanation regarding delay in filing the complaint has taken into consideration.
5. In view of the aforesaid facts and circumstances of the case, though this Court has conscious that section 376 of IPC sparingly exercise but depending upon the facts and circumstances of the case. Therefore, considering the above said facts and circumstances of the case, the petitioner has made out a case to enlarge him on anticipatory bail. As such, the petitioner is entitled to be enlarged on bail. Hence, the following:
ORDER The petition is allowed. Consequently, the petitioner (accused) shall be released on bail in the event of his arrest in connection with Cr.No.153/2019 of Beguru Police Station, Bengaluru for the alleged offences subject to the following conditions:-
i) The petitioner shall surrender himself before the Investigating Officer within Ten days from the date of receipt of a certified copy of this order and shall execute his personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two solvent sureties for the like-sum to the satisfaction of the concerned Investigating Officer.
ii) The petitioner shall not indulge in hampering the investigation and tampering the prosecution witnesses.
iii) The petitioner shall co-operate with the Investigating Officer to complete the investigation, and he shall appear before the Investigating Officer as and when called for.
iv) The petitioner shall not leave the jurisdiction without prior permission of the I.O., till the charge sheet is filed or for a period of three months whichever is earlier.
v) The petitioner shall mark his attendance once in fifteen days i.e.,on any Sunday between 10.00 am and 5.00 pm., before the Investigating Officer for a period of two months or till the charge sheet is filed, whichever is earlier.
Sd/- JUDGE JS/-