IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.1299/2019 BETWEEN:
Chandrashekar J S, Aged about 25 years, S/o. Jagadeeshappa, Residing at Sirigere village & Post, Shivamogga Taluk, Shivamogga District-577211. ...Petitioner (By Sri. B Anand and Sri. R.Bhadrinath, Advocates) AND:
The State of Karnataka, By Tunganagar Police Station, Shivamogga District, Represented by State Public Prosecutor, High Court of Karnataka, Bengaluru-560 001. ... Respondent (By Sri. Namitha Mahesh B G, HCGP) This Criminal Petition is filed under Section 438 of Criminal Procedure Code praying to enlarge the petitioner on bail in the event of his arrest in Crime No. 774/2018 of Tunga Nagar Police Station, Shivamogga for the offences punishable under Sections 363, 366, 376, 506 of IPC and Section 4 of POCSO Act, 2012 and Sections 9 and 10 of Prohibition of Child Marriage Act, 2006.
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 No.1 under Section 438 of Cr.P.C. praying this Court to release him on anticipatory bail in the event of his arrest in Crime No.774/2018 of Tunga Nagar Police Station, Shivamogga for the offences punishable under Sections 363, 366, 376, 506 of IPC and Section 4 of POCSO Act, 2012 and Sections 9 and 10 of Prohibition of Child Marriage Act, 2006.
2. I have heard the learned counsel for petitioner and the learned High Court Government Pleader for respondent-State.
3. Mother of the victim filed a complaint alleging that her husband died about 12 years ago. She had two daughters, victim studied up to 9th Standard and she was working in a fiber shop. It is further stated that she used to leave her house at about 10:00 a.m., and return back at 8:00 p.m.,. On 11.11.2018 at about 9:00 a.m., she left her house and at about 4:00 p.m., she called her mother-the complainant over the said phone and after saying hello, she switched off her mobile. The complainant by suspecting the same went to the fiber shop and enquired the owner of the shop, later she came to know that her daughter did not go to the shop on that day. Thereafter, she enquired about her daughter with her relatives and could not trace her. The complainant registered a complaint suspecting that the accused might have taken the victim. On the basis of the complaint, a case has been registered.
4. It is the submission of learned counsel for the petitioner that after lodging the complaint, the victim voluntarily appeared before the Police on 14.11.2018 and gave her statement stating that due to poverty, she could not continue her studies and in order to search for a better job, she went to her friend’s house and both left to Shivamogga in search of a job. Some villagers met her at Shivamogga and informed about lodging of the complaint by her mother and as such, she went to the Police Station and deposed accordingly. In her first statement, nothing has been stated with reference to the petitioner-accused No.1 eloping her and sexually assaulting her. Subsequently, the victim was remanded back to Child Welfare Committee. He further submitted that on 21.11.2018, the Chairman of the Child Welfare Committee took the victim forcibly and there, the statement has been recorded and at that time, she revealed that the petitioner-accused No.1 took her to a temple and forcibly tied a turmeric thread and after exchanging the garland, went to Konandur and stayed in his friend Rahu’s room, and there against her will, she was sexually assaulted. The entire material which has been produced indicates that there is inconsistency in the statement of the victim and subsequent statement given on 21.11.2018 is only because of the Chairman of the Child Welfare Committee. Even there is no corroboration in the statement given by the victim with the medical records. He further submitted that the victim refused to go for medical examination. Under the said facts and circumstances of the case, there is no material to connect the petitioner-accused No.1 to the alleged crime. The petitioner-accused No.1 is ready to abide by any conditions that may be 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 No.1 on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the petitioner-accused No.1, eloped a minor girl and married her against her will and she was sexually assaulted. Though she refused for medical examination but her statement which has been recorded by the Police under Section 164 of Cr.P.C clearly goes to show that the petitioner-accused No.1 has sexually assaulted knowingly full well that she is a minor. There is ample material to connect the petitioner-accused No.1 to the alleged offence. No good grounds have been made out to release the petitioner on anticipatory bail. 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 have been produced in this behalf and the submissions made by learned counsel for both the parties.
7. As could be seen from the records, when the victim girl appeared before the Police, immediately, after coming to know that her mother has lodged a complaint, no allegations were made against the petitioner-accused No.1 either eloping or sexually assaulting. The victim girl gave her statement regarding the petitioner-accused No.1 only when the Chairman of the Child Welfare Committee insisted and took her on 21.11.2018. All these material clearly goes to show that the victim did not give her statement voluntarily. The records also indicate that the victim and her mother refused for medical examination and even no documents have been produced to substantiate the fact that the petitioner-accused No.1 has sexually assaulted the victim by getting her married and taking her to his friend’s house. Under the peculiar facts and circumstances of the case, the material which has been produced does not repose the confidence so as to come to the conclusion that the petitioner-accused No.1 is involved in the alleged offence.
In that light, criminal petition is allowed and the petitioner-accused No.1 is enlarged on anticipatory bail in Crime No.774/2018 of Tunga Nagar Police Station, Shivamogga for the offences punishable under Sections 363, 366, 376, 506 of IPC and Section 4 of POCSO Act, 2012 and Sections 9 and 10 of Prohibition of Child Marriage Act, 2006, subject to the following conditions:
1. In the event of his arrest, the Investigating Agency is directed to enlarge him on bail on he executing a personal bond for a sum of Rs.1,00,000/-(Rupees One Lakh Only) with two sureties each for the likesum to the satisfaction of the Investigating Officer.
2. He shall surrender before the Investigating Agency within 15 days from today.
3. He shall not tamper with the prosecution evidence in any manner.
4. He shall mark his attendance once in 15 days between 10.00 a.m., to 5.00 p.m., before the concerned police station till the charge sheet is filed.
5. He shall be regular in attending the Court.
6. He shall not leave the jurisdiction of the Court without prior permission.
Sd/- JUDGE RB