IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.5428/2019 Between:
Ganapathy.M.T @ Ponnu, S/o.Late.Thimmaiah.M.T, Aged about 35 years, R/at Panjarpet, Virajpet Taluk, Kodagu District, Pin Code - 571 218. ... Petitioner (By Sri. R.K. Mahadeva, Advocate) And:
The State of Karnataka, Rep. by the Station House Officer, Virajpet Town Police Station, Virajpet Circle Sub-Division, Kodagu District, Pin Code-571 218, Rep. by its State Public Prosecutor, High Court Building, Bengaluru-560 001. ... Respondent (By Sri.K.Nageshwarappa, HCGP; Complainant served and unrepresented) 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.87/2018 of Virajpet Town Police Station, Kodagu for the offence punishable under Section 354(A) of IPC and Section 10 of POCSO Act.
This Criminal Petition is 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 438 of Cr.P.C., to enlarge him on bail in Crime No.87/2018 of Virajpet Town Police Station, Kodagu for the offences punishable under Section 354(A) of IPC and also under Section 10 of POCSO Act.
2. I have heard the learned counsel for the petitioner/accused and learned High Court Government Pleader for the respondent-State.
3. The genesis of the complaint are that the victim and her mother were residing along with the accused, who is none other than uncle of the victim for couple of years. The parents of the victim died due to ill-health and as such they were residing with the accused. On 29.07.2018, the complainant received a call from the accused that both the victim and her grandmother have left the house along with their clothes and on 30.07.2018, a missing complaint was registered. On the basis of the missing complaint, the police traced the victim and her grandmother and brought them on 05.08.2018. On 06.08.2018, the victim revealed that she was not comfortable under the roof of the accused and as such, she left the house along with her grandmother. On 07.08.2018, the victim further revealed that from past two months, her grandmother was not keeping well and her grandmother used to sleep in one room and the accused used to sleep in the hall. When grandmother of the victim was sleeping, accused used to come to the room of the victim, used to forcibly hug and kiss her and as such, the victim used to come out of the house at night and by locking the door from outside used to spend whole night there.
4. It is the submission of the learned counsel for the petitioner/accused that on 29.07.2018, the victim and her grandmother were missing and a missing complaint was registered on 30.07.2018 and on 05.08.2018, they were traced. But when they were traced, no allegation was made as against the petitioner/accused. Only on subsequent days i.e., on 07.08.2018, the victim has disclosed the fact of the accused was kissing and hugging her during the night hours. It is his further submission that the victim and her grandmother were looked after by the petitioner/accused and they were staying in the house of the accused and they went out of the house by taking their belongings and clothes. The civil disputes are pending and as such, a false complaint has been registered. The statements of the victim which have been recorded on 05.08.2018 and 07.08.2018, the different statements have been given by her. Then, under such circumstances, the said statements cannot be looked into. It is his further submission that he is ready to abide by any of the conditions imposed by this Court and ready to offer the 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 statements of the victim have been recorded under Section 161 of Cr.P.C. and even before the Magistrate under Section 164 of Cr.P.C. clearly goes to show that the petitioner/accused has sexually assaulted her by hugging and kissing her. It is his further submission that the victim is aged about 15 years and she is a minor. Earlier, the petitioner/accused has approached this Court in Criminal Petition No.914/2019 and this Court, vide order dated 11.04.2019 has disposed of the petition by giving liberty to the petitioner/accused to file a fresh application after the filing of charge sheet. Till today, the investigation is not yet completed, the petitioner/accused is not co-operated with the investigation and as such, the charge sheet has not yet been filed. Under the said facts and circumstances, there is no changed circumstances to again reconsider the bail application and to enlarge the petitioner/accused on anticipatory bail. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
7. Though several contentions have been taken up by the learned counsel for the petitioner/accused stating that two different version of statements have been made by the victim and the first statement does not disclose any allegations as against the petitioner/accused and subsequently, only on 07.08.2018, she has falsely implicated the accused stating that he is sexually assaulted her. On that point, the matter has to be considered and appreciated only at the time of the trial as there is a prima facie material against the petitioner/accused for having sexually assaulted the victim. However, I feel that it is not a fit case to exercise the power under Section 438 of Cr.P.C. to enlarge the petitioner/accused on anticipatory bail. In that light, the petition is dismissed.
Sd/- JUDGE NR/RG