IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18th DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.9015/2018 BETWEEN :
Dr. Anita Patil W/o late Remaling Brige Patil Aged about 60 years Residing at No.201, HBR 2nd Block, 2nd Cross, Kacharakanahalli Bengaluru-560 096.
… Petitioner (By Sri Ravi B. Naik, Senior Counsel for Smt. Vijetha R. Naik, Advocate) AND :
State of Karnataka Through K.R.Pet Town Police Represented by the State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
… Respondent (By Sri K.P. Yoganna, HCGP) This Criminal Petition is filed under Section 438 of Cr.P.C praying to enlarge the petitioner on bail in the event of her arrest in Crime No.59/2018 of K.R. Pet Town Police Station, Mandya District for the offences punishable under Sections 326, 363-A, 365, 367, 370(A)(1), 465, 468 r/w Section 34 of Indian Penal Code and Sections 6, 21 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 is filed by accused No.4 under Section 438 of Cr.P.C. praying to grant her anticipatory bail in Crime No.59/2018 of K.R.Pet Town Police Station for the offences punishable under Sections 326, 363A, 365, 367, 370A (1), 465, 468 r/w. Section 34 of IPC and also Sections 6 and 21 of POCSO Act.
2. I have heard Sri Ravi B.Naik, the learned Senior Counsel for the petitioner and the learned HCGP for the respondent-State.
3. The genesis of the complaint is that complainant filed a complaint on 11.2.2018 stating that her grand son Chandan Kumar studying in 10th Standard in BBMP Smt.Parimala Bai School, Vijayanagara, Bengaluru had come to her house at Akkimanchanahalli and on 4.2.2018 he left her house by informing that he is going to Bengaluru. After few days, she tried to call her grand son but his mobile was switched off. Thereafter, she went to Bengalauru to verify about her grand son. She was informed that her grandson has not come to the school. She searched her grand son at various places and on 28.10.2018 one Manju of Akkimanchanahalli brought one transgender. After enquiry it came to the light that missing grand son of the complainant has become transgender and his name has been changed to Lekhana Gowda from Chandan Kumar. Subsequently, the police investigated the case by registering the complaint.
4. It is the submission of the learned Senior Counsel that on 4.2.2018 a missing complaint was filed and after investigation the charge sheet has already been filed. The only allegation which has been made against the petitioner herein is that it is the doctor who transformed the missing boy to a female by transgender and no other overt acts either of kidnapping and other offences are alleged against her. He further submitted that the statement of the Chandan Kumar @ Lekhana Gowda clearly goes to show that earlier to the alleged incident he used to behave like female and also used to wear the female dresses. It is further discloses that at his own wish he got transformed him into a female by taking the help of another transgender. He further submitted that nobody has forced him to transfer himself as a transgender and even he misrepresented the doctor by stating that he has attained the age of majority and there is no force or ill-will and therefore petitioner has not done any illegality. He further submitted that the petitioner is ready to abide by any conditions and to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner on anticipatory bail.
5. Per contra, the learned HCGP vehemently argued and submitted that the date of birth of the transgender who got transformed into female on 8.2.2003 and when the said operation was conducted by the petitioner, he was a minor. The transformation without there being any permission of the guardian or parents is illegal and petitioner being a Physician, cannot conduct the said surgery. He further submitted that after the said operation, the victim is suffering with HIV and records also clearly go to show that the petitioner along with other accused persons have been involved in the said case. He further submitted that the affidavit is also got prepared by the doctor herself to over come legal lacunas. On these grounds, he prays to dismiss the petition.
6. Though the notice is served on the complainant, she has remained absent.
7. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and also gone through the other material which has been made available during the course of arguments. Though the statement of the victim is recorded under Section 164 of Cr.P.C., as could be seen from the statement under Section 161 of Cr.P.C. it clearly goes to show that prior to the alleged incident, he was behaving like a female and also used to wear female dresses and on his own wish he left the house and on the way he met a transgender, went to the hospital and without there being any force, he got transformed himself as a female by filing an affidavit to the effect that he has already crossed the age of majority. On going through all these materials, it would indicate that there are no overt acts alleged as against the present petitioner. Under such circumstances, that too when already charge sheet is said to have been filed, I feel it just and proper that by imposing some stringent conditions, if the petitioner is enlarged on anticipatory bail, it would meet the ends of justice.
Accordingly, petition is allowed. Petitioner- accused No.4 is ordered to be released on bail in the event of her arrest in Crime No.59/2018 of K.R.Pet Town Police Station for the offences punishable under Sections 326, 363A, 365, 367, 370A(1), 465, 468 r/w. Section 34 of IPC and also Sections 6 and 21 of POCSO Act, subject to the following conditions:-
i) Petitioner shall execute a personal bond for Rs.2,00,000/- with two sureties for the like sum to the satisfaction of the Investigating Officer.
ii) She shall surrender before the Investigating Officer within fifteen days from today.
iii) If the charge sheet is not filed, she shall cooperate with the investigation.
iv) She shall not leave the jurisdiction of the trial Court without prior permission.
v) She shall mark her attendance before the jurisdictional police on every Thursday between 10.00 a.m. and 5.00 p.m. for a period of six months.
vi) She shall not indulge in similar type of criminal activities in future.
In view of the disposal of the petition, I.A.No.1/2018 stands dismissed as it does not survive for consideration.
Sd/- JUDGE *ck/-