IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.43 OF 2019 BETWEEN:
IRFAN WAZEER S/O WAZEER PASHA AGED ABOUT 22 YEARS R/AT NO.78 1ST CORSS, 1ST MAIN GANGONDANAHALLI BENGALURU-560 073 ...PETITIONER (BY SRI. DILRAJ JUDE ROHIT SEQUEIRA, ADVOCATE) AND:
THE STATE OF KARNATAKA BY CHANDRA LAYOUT POLICE STATION, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, BANGALORE – 560 001. ...RESPONDENT (BY SRI. M. DIVAKAR MADDUR, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF THE CODE OF THE CRIMINAL PROCEDURE CODE PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.441/2018 REGISTERED BY CHANDRA LAYOUT POLICE STATION, BENGALURU FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 366, 344, 114, 506, 354, 376 AND 498 R/W 34 OF IPC.
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 439 of Cr.P.C., seeking his release on bail in Crime No.441/2018 of Chandra Layout Police Station for the offences punishable under Sections 366, 344, 114, 506, 354, 376 and 498 read with Section 34 of IPC.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. Gist of the complaint is that the victim had been to college on 15.09.2018 at about 8.00 a.m. she did not return to home and a missing complaint was registered on 26.09.2018. The victim was traced and her statement was recorded. In her statement it is stated that on 15.09.2018, the petitioner-accused forcefully took her to Mysore and other places and there after kept her in the house belonging to his sister Reshmataj and forced her to marry him. It is further alleged that under the guise of marriage, the petitioner had a sexual intercourse with the victim and she was threatened to spread relationship between petitioner and prosecutrix in the social media. The petitioner- accused and his sister forced her to marry him. It is further stated that on 26.09.2018, she escaped and left the petitioner-accused and came to the police station. On the basis of her statement, the said case has been registered.
4. It is the submission of learned counsel for the petitioner-accused No.1 that already charge sheet has been filed. The petitioner-accused No.1 is not required for the purpose of investigation and interrogation. It is further submitted that subsequently, the statement of the victim was recorded under Section 164 of Cr.P.C by the learned magistrate, wherein she has not stated anything with regard to sexual assault said to have been committed by the petitioner-accused No.1. She has only stated that the petitioner-accused No.1 asked 5 to 6 times and tried to have an sexual act but she refused and no further allegations have been made. He further submitted that the statement of the victim under Section 164 of Cr.P.C, clearly shows that she has voluntarily gone along with the petitioner- accused No.1. It is further submitted that even Medical Report also does not substantiate the fact that the petitioner- accused No.1 had sexually assaulted. He is ready to abide the conditions imposed on him by this Court and ready to offer surety. 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 had sexually assaulted a minor girl before marrying the victim, knowingly full well that she is minor, he had committed sexual act. The statement of the victim clearly goes to show that the petitioner-accused No.1 had sexually assaulted and he has committed heinous offence. Hence, the petitioner- accused No.1 is not entitled to be released on 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 including the medical records.
7. On going through the statement of the victim under Section 164 of Cr.P.C recorded on 10.10.2018, which discloses the fact that there is no sexual assault said to have been committed by the petitioner-accused No.1. Even the medical reports which have been made available corroborates the statement under Section 164 of Cr.P.C recorded by the learned Magistrate. Though the other allegations which are made against the petitioner-accused No.1 is the matter said to have been considered and appreciated only at the time of trial. This Court cautiously aware of the fact that keeping under the false promise, the petitioner-accused No.l takes the victim and had sexual assault amounts to rape but the said circumstances does not substantiate the said fact and even that there is no sexual assault said to have been committed by the petitioner-accused No.1. In this behalf, no other material is available except the statement under Section 164 of Cr.P.C. Under the above facts and circumstance, I feel that by imposing some stringent conditions, if the petitioner/accused No.1 is ordered to be released on bail, it is going to meet the ends of justice.
8. In that light, petition is allowed.
Petitioner/accused No.1 is ordered to be released on bail in Crime No.441/2018 of Chandra Layout Police Station for the offences punishable under Sections 366, 344, 114, 506, 354, 376 and 498 read with Section 34 of IPC subject to the following conditions:
1. Petitioner/accused No.1 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 leave the jurisdiction of the Court without prior permission.
3. He shall mark his attendance once in a month i.e., 1st of every month before the jurisdictional police station, till the trial is concluded.
4. He shall not tamper with the prosecution evidence directly or indirectly.
5. He shall regularly attend the trial.
Sd/- JUDGE KTY