IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.2363/2017 BETWEEN:
KHALID AHMED BIGGIES BURGER SHOP, NEAR SJR APARTMENT, ELECTRONIC CITY, BANGALORE.
(BY SRI.GOVARDHAN S., ADV.) AND STATE OF KARNATAKA BY ELECTRONIC CITY POLICE STATION REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING BANGALORE 560001.
(BY SRI.CHETAN DESAI, HCGP) ...PETITIONER ...RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.269/2016 OF ELECTRONIC CITY POLICE STATION, BENGLAURU CITY, FOR THE OFFENCE P/U/S 376D,307,506 R/W 34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the petitioner/accused No.3 under Section 439 of Cr.P.C. seeking his release on bail for the offences punishable under Sections 376D, 307, 506 read with Section 34 of IPC, registered in respondent – police station Crime No.269/2016.
2. It is the averments made in the complaint by the victim girl that on 15.05.2015 at about 10.30 or 11.00p.m. she was talking over phone with her boyfriend. She was having call waiting in her phone. After that she told her boyfriend that her friend Sanam is calling and she will call later. He asked her to join for smoking with them. Accordingly, she went there and at that time three persons were there, they started drinking liquor and those persons started to touch her body here and there. It is also alleged in the complaint that they put their fingers into her private part, there was pain and bleeding. Though she requested not to do like that and she is having so much of pain, even then, they continued the said act. It is further alleged that they have committed sexual intercourse on her. Hence, she has requested the Police to take action against those culprits. On the basis of the said complaint, case came to be registered firstly against three unknown persons and during the course of investigation, petitioner has been arrayed as accused No.3.
3. Heard the arguments of the learned counsel appearing for the petitioner/accused No.3 and also the learned High Court Government Pleader appearing for the respondent-State.
4. Learned counsel for the petitioner during the course of his arguments has submitted that the FIR is registered against unknown persons. It is also contended that there is a delay of 16.00 hours in lodging the complaint, which is not properly explained by the prosecution. It is also submitted that looking to the prosecution material there is no prima-facie case made out against the petitioner herein about his involvement in committing the alleged offence. It is further submitted that though she has stated that the incident has taken place in the house bearing No.293, but whereas the prosecution material shows that it is in house No.294. Hence, looking to these materials placed on record, there is no prima-facie case against the petitioner. It is also submitted that since one year the petitioner is in custody and there is no progress in the case, even charges are also not framed by the concerned trial Court. Hence, she has submitted that as investigation is completed and charge sheet has been filed, by imposing reasonable conditions, petitioner may be enlarged on bail.
5. Per contra, learned High Court Government Pleader, during the course of his arguments has submitted that, in the complaint there is an allegation against three accused persons. He has also submitted that the statement of victim girl has been recorded before the Magistrate Court under Section 164 Cr.P.C., wherein also she has stated about the involvement of three accused persons and the present petitioner is one among them. He has further submitted that apart from the statement of the victim, the statement of the owner of the house, who is C.W.13 also makes it clear that it is he, who rescued the victim girl from three assailants. He has submitted that medical evidence is also supporting the case of the prosecution. Hence, submitted that petitioner is not entitled to be granted with bail.
6. I have perused the grounds urged in the bail petition, FIR, complaint, so also the charge sheet material, and other materials produced along with the petition.
7. The victim girl, in her statement recorded under Section 164 Cr.P.C., has clearly narrated that it is the three accused persons, who committed sexual intercourse on her. I have also perused the medical records, the Doctor, who conducted examination, is of the opinion that there is an evidence of signs of recent sexual intercourse present and the individual was used to sexual intercourse. The medical report also discloses about four injuries found on the body of the victim girl, which are scratch marks, nail marks and abrasions. Looking to these materials collected during investigation, it prima-facie makes out a case against the petitioner about his involvement in committing the alleged offence under Section 307 of IPC, so also offence under Section 376D of IPC. Hence, serious offences are alleged. Therefore, considering all these materials, I am of the opinion that it is not a fit case to exercise discretion in favour of the petitioner herein. Accordingly, petition is hereby rejected.
However, in view of the submission made by the learned counsel for the petitioner that there is no progress in the trial of the case and even the charges are also not framed, the concerned trial Court is hereby directed to take up the matter on priority basis and to dispose of the same as early as possible but not later than six months from the date of receipt of copy of this order.
Registry is directed to send the copy of this order to the concerned sessions Court immediately.
Sd/- JUDGE BSR