IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B. A. PATIL CRIMINAL PETITION No.9716/2018 Between:
Naveen Shetty Aged about 29 years s/o Krishnayya Shetty r/o Amrutha Nivas Subbannakatte Mudradi village and Post Karkala Taluk, Udupi District – 576223. .. Petitioner (By Sri Vittal Mattikoppa for Sri Ravi L Vaidya, Advocates) And The State of Karnataka by Hebri Police Station Karkala Circle, Udupi District, represented by State Public Prosecutor High Court Building Bengaluru-560 001. .. Respondent (By Sri M Divakar Maddur, HCGP) This criminal petition is filed under Section 438 of Cr.PC praying to enlarge the petitioner on bail in the event of his arrest in Crime No.88/2018 of Hebri PS, Udupi District for the offences punishable under Sections 4, 5(J)(II), 6, 12 of POCSO Act and Section 376 of IPC.
This petition is coming on for orders this day, the Court passed the following:-
ORDER This matter is taken up out of turn on the submission made by the learned counsel for the petitioner that the petitioner’s father is not keeping well.
2. This petition has been filed by the petitioner under Section 438 of Cr.P.C praying this Court to release him on anticipatory bail in the event of his arrest in Crime No. 88/2018 of Hebri PS, Udupi District for the offences punishable under Sections 4, 5(J)(II), 6, 12 of POCSO Act and Section 376 of IPC.
3. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
4. The gist of the complaint is that the complainant/victim is a minor girl. She is residing with her aunt and was studying in second year PUC, Government PU College. Petitioner being the relative of victim often used to visit and stay in her house. One day he tried to sexually assaulted the victim during the month of January, 2018, she resisted the same. Subsequently, in the month of July, 2018, when the petitioner/accused came to the house of victim and on that day, he was sleeping and the victim was sleeping on the floor in the hall, at that time, against her will, he committed aggravated sexual assault on her. Subsequently, her menstrual cycle was stopped and she was taken to the hospital and came to know that she is pregnant. On the basis of the complaint, case has been registered.
5. It is submitted by the learned counsel for the petitioner/accused that the petitioner is innocent and not committed any offence. He is ready to co-operate with the investigation including the DNA test. He further submitted that the alleged incident has been taken place in the month of July, 2018 and the complaint was registered on 2.11.2018. But when the fetus was removed, she was two and half month pregnant, that itself goes to show that there is variation in the complaint and the said statement of the victim girl. He further submitted that the petitioner is ready to abide by the conditions that may be imposed by this Court and ready to offer the sureties. On these grounds, he prayed to allow the petition and release the petitioner/accused on bail.
6. Per contra, the learned High Court Government Pleader vehemently argued that the petitioner/accused has committed a heinous offence on the minor victim girl. He further submitted that the victim girl has become pregnant and subsequently the fetus has been removed and the same is kept for DNA test. Further he submitted that the petitioner/accused was not available for the purpose of investigation and interrogation and he is absconding and as such, he is not entitled to be released on anticipatory bail. In the absence of the petitioner/accused, DNA test has not yet been conducted. Therefore, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel for the petitioner and the learned Government Pleader.
8. On close reading of the contents of the complaint and other materials, these go to show that the petitioner/accused and victim are related with each other. The petitioner/accused also used to visit and stay in the house of victim girl. In the month of July, 2018, when he stayed in her house and on that day the victim girl was sleeping on floor, he has committed aggravated sexual assault against her will and as a result of the same, the victim girl has become pregnant. Thereafter about two and half month, the menstrual cycle was stopped and therefore when she was taken to hospital, it came to know that she is pregnant. Under the said facts and circumstances, the petitioner is involved in the serious offence of sexual assault on the minor girl. The DNA test has not yet been conducted. Hence, I feel that it is not a fit case to grant anticipatory bail. Therefore the petition is dismissed. However, if the petitioner/accused surrenders before the Court and apply for regular bail, the above observation will not come in the way while considering the said bail application.
Sd/- JUDGE bkm.