IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9382 OF 2018 BETWEEN:
Govinda, Aged 23 years, S/o. Arumugam, R/at Agaraseethambudu Village, Kanni Taluk, Vallipuram District, Tamilnadu - 603 405. ...Petitioner (By Sri. Chandrahasa Raj.B, Adv.,) AND:
The State of Karnataka, By Vishweshwarapuram Police Station, Bengaluru, Rept. by State Public Prosecutor, High Court Building, Bengaluru - 560 001. ... Respondent (By Smt. Namitha Mahesh.B.G, HCGP) This Criminal Petition is filed under Section 439 of Criminal Procedure Code praying to enlarge the petitioner on bail in Crime No.104/2018 (Spl C.C.No.649/2018) of Vishveshwarapuram Police Station, Bengaluru City for the offence p/u/s 6 of POCSO Act and 376 of IPC.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R This petition has been filed by the petitioner under Section 439 of Cr.P.C., to release him on bail in Crime No.104/2018 of Vishweshwarapuram Police Station, Bengaluru City for the offences punishable under Section 376 of IPC and also Section 6 of Protection of Children from Sexual Offence Act.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
3. The complainant lodged the missing complaint alleging that victim was residing along with the complainant and when she was staying, she was injuring her hand by using small stone sticks and even earlier, when she was also staying with Swaskshetra (NGO) she used to injure herself and she was taking treatment in Nimhans Hospital and their they advised to admit her and accordingly, she was admitted. It is further alleged that on 04.06.2018, she had swallowed excessive tablets than the required one and as such, she was taken to Vani Vilas Hospital and got admitted there as in-patient. On 05.06.2018, at about 8.00 pm, she ran away from the hospital and on search, she could not be traced and as such, the missing complaint was filed.
4. It is further case of the prosecution that subsequently the victim was traced and she said that she had gone to Tamilnadu, where the accused was residing and she was staying with the accused on 05.06.2018, 06.06.2018 and 07.06.2018, at that time the accused has sexually assaulted her against her will and consent. Based on the said complaint, after investigation, the charge sheet has been filed.
5. It is the submission of the learned counsel for the petitioner-accused that he is innocent and has not committed any offence alleged against him. He further submitted that the victim girl is aged about 17 years and she has given her statement under Section 164 of Cr.P.C., wherein she has clearly stated that the accused-petitioner has not sexually assaulted her. He further submitted that the missing complaint was registered under Section 363 and thereafter, at the time of filing the charge sheet, Section 363 has been dropped and charge sheet has been filed under Section 376 of IPC and also under Section 6 of the Protection of Children from Sexual Offence Act.
6. The alleged offence has taken place in Tamil Nadu and as such the Court is not having any jurisdiction to the said offence. He further submitted that the victim herself has voluntarily escaped from the hospital and subsequently, she was dropped into the police station when she was wondering at HSR Layout. Even the ingredients of the Section 376 are not attracted. The petitioner-accused is not required for the purpose of further investigation or interrogation. Already the charged sheet has been filed. Petitioner is ready to abide by any of the terms and conditions imposed by this Court and to offer sureties. On these grounds, he prayed to allow the petition.
7. Per contra, the learned High Court Government Pleader vehemently argued and submitted that prima facie material clearly goes to show that the accused-petitioner has sexually assaulted the victim and the said fact is also corroborated by the medical evidence to the effect, which also indicate that the accused-petitioner was minor at the alleged time of the incident and accused by inducing her, has sexually assaulted. There is a prima facie material to connect the accused to the alleged crime. There are no good grounds to release the accused on bail. On these grounds she prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
9. Though it is contended by the learned counsel for the petitioner that the alleged offence has taken place in Tamil Nadu and the Court below is not having any jurisdiction that is a matter that which has to be appreciated by the trial Court, if it is urged before the Court or that if the petitioner files an application to get the cases transfer, that can be considered by this Court.
10. As could be seen from the contents of the complaint that it is only a missing complaint, thereafter, the victim has been traced and the statement of the victim has been recorded, wherein she has stated that the accused has sexually assaulted, but subsequently, the statement of the victim was recorded by the learned Magistrate under Section 164 of Cr.P.C on 25.06.2018, wherein she has stated that no such sexual assault has been committed by the accused-petitioner. Already charge sheet has been filed and the statement is also not supporting the case of the prosecution. Under the said facts and circumstances, I feel that petitioner- accused is also to be released on bail by imposing stringent conditions. It is going to meet the ends of justice. In that light, petition is allowed and the petitioner-accused is ordered to be released on bail in Crime No.104/2018 of Vishweshwarapuram Police Station for the offence punishable under Section 376 of IPC and Section 6 of the POCSO Act with following conditions.
1. Petitioner-accused 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 15 days between 10.00 a.m., to 5.00 p.m., till the chargesheet is filed.
4. He shall not tamper with the prosecution evidence directly or indirectly.
sd/- JUDGE DS/RG