IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL PETITION No. 9609 OF 2018 BETWEEN:
Mohammed Rafique, 35 years, S/o. Abdul Razak, R/at: Beetige House, Charmady Post, Chibidre Village, Belthangady Taluk, D.K. District -575231. …Petitioner (By Sri. B. Lathif, Advocate) AND The State of Karnataka, By Dharmasthala Police Station, D.K. District -575231. …Respondent (By Sri. M. Diwakar Maddur, HCGP ) This criminal petition filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Crime No.108/2018 of Dharmasthala Police Station, D.K., for the offence punishable under Sections 341, 504, 506 and 326 read with 34 of IPC and Sections 8 and 12 of POCSO Act.
This criminal petition coming on for orders this day, the Court made the following:
ORDER The present petition has been filed by the petitioner/accused under Section 439 of Code of Criminal Procedure praying to release him on bail in Crime No. 108/2018 of Dharmasthala Police Station for the offences punishable under Sections 341, 504, 506 and 326 read with 34 of IPC and Sections 8 and 12 of POCSO Act.
2. I have heard the learned counsel for the petitioner and learned High Court Government Pleader for the respondent/State.
3. The gist of the complaint is that on 17.05.2018 the complainant who is studying in II PUC alleged that accused No.1 used to harass him and the same was informed to the parents and on that day at about 8.15 a.m. when the complainant is on the way to his college, accused came in an auto-rikshaw along with accused -2 and gave a mobile phone and said the complainant to accompany him. The complainant refused to take the mobile and at that time accused -2 caught hold him. Further alleged that accused- Rafeeq threatened him and abused in filthy language and assaulted with stone to his face, head and other parts of the body. It is alleged that a passerby told the accused persons not to assault the complainant and he informed the parents of the complainant. The complainant had fell down on the floor. Immediately, he was shifted to Krishna Hospital at Kakkinje. There he took first aid and after getting conscious he was shifted to another hospital for higher treatment to SDM Hospital at Ujire. Based on this a case has been registered.
4. It is the submission of the learned counsel for the petitioner that already charge sheet has been filed, accused No.2 has been released on bail and the petitioner- accused also is entitled to be released on bail on ground of parity. He further submitted that the complaint was registered on 17.05.2018 and therein no allegations have been made with regard to showing of the porn pictures in the mobile and no sexual assault has also been stated. But subsequently, on 31.05.2018, 164 statement of the victim was recorded and at that time the alleged incident has been disclosed. He further submitted that the accused-petitioner is in custody since more than 6 months and there is no earlier antecedents and no complaint has been registered against the petitioner. Alleged offences are not punishable with death or imprisonment for life. On these grounds learned counsel for the petitioner prays to allow the petition and release the petitioner on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the accused- petitioner is involved in serious offence, whereas, he has sexually assaulted the complainant and it is the accused- petitioner who was a driver of the auto-rikshaw and he used to steer and watch the complainant whenever he used to go to school. At that time the petitioner-accused showed some pornography videos and forcefully disrobed him and thereafter has sexually assaulted the complainant. Even the medical records clearly goes to show the said act of the petitioner-accused. He further submitted that accused- petitioner has committed a serious offence and he is liable to be convicted for the same. On these grounds he prays to dismiss the petition.
6. I have carefully and cautiously gone through the arguments and other materials which are made available in this regard.
7. As could be seen from the contents of the complaint, which is said to have been filed on 17.05.2018, there are no specific allegations made with regard to the subsequent statement, which has been made under Section 164. It is alleged in the said complaint that six months prior to the alleged incident, the accused-petitioner has taken the complainant, shown some pornography video and sexually assaulted the complainant. Thereafter the alleged incident has taken place. The same would have been reflected in the complaint dated 17.05.2018 and not in 164 statement which has been recorded on 31.05.2018, that too 15 days after the incident. Under such circumstances, I feel that there is no prima facie case to allege the said sexual assault. Injuries that have been suffered by the complainant are simple in nature. The alleged incident is not punishable with death or imprisonment for life. Under such circumstances, that too when charge sheet has also been filed, if the petitioner accused is ordered to be released on bail by imposing some stringent conditions, then it is going to meet the ends of justice.
8. Taking into consideration the said facts and circumstances of the case, petition is allowed. Petitioner/accused is ordered to be released on bail in Crime No. 108/2018 subject to the following conditions.
1. Petitioner 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 tamper with the prosecution evidence either directly or indirectly.
3. He shall not leave jurisdiction of the court without prior permission.
4. He shall mark his attendance once in every first day of month between 10.00 a.m., to 5.00 p.m., before the jurisdictional police station till the trial is concluded.
5. He shall not indulge in similar type of activities.
Sd/- JUDGE BVK