IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30th DAY OF JANUARY 2019 BEFORE THE HON'BLE MR. JUSTICE B.A.PATIL CRIMINAL PETITION NO.8783/2018 BETWEEN:
AMEEN SAB DALAWAYI S/O. LAL SAHEB DALAWAYI, AGED ABOUT 26 YEARS, RESIDENT OF MAREGUDDI VILLAGE, OPP. MAGIYAPPA YADIHALLI, MAHANTESHWARA MATHA ROAD, JAMAKHANDI TALUK, BAGALKOTE DISTRICT PIN-587121.
(IN JC SINCE 19.06.2018) (BY SRI. K.B.K. SWAMY, ADVOCATE) AND:
THE STATE OF KARNATAKA BY UPPARA PETE POLICE STATION, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HON’BLE HIGH COURT OF KARNATAKA, BANGALORE-560001.
(BY SRI.K.P. YOGANNA, ADV.,) …PETITIONER ...RESPONDENT THIS PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.149/2018 (SPL.C.NO.694/2018) OF UPPARPET POLICE STATION, BANGALORE CITY FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 3(1)(r) (s), 3(1) (w) (ii) OF SC/ST (POA) ACT AND SECTION 417, 420, 504, 506 AND 509 OF IPC AND ETC., THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The present petition is filed by the petitioner under Section 439 of Cr.P.C. to release him on bail in Crime No.149/2018 (Spl.C. No.694/2018) of Upparpet Police Station, Bengaluru for the offences punishable under Sections 3(1)(r) (s), 3(1) (w) (ii) of SC/ST (POA) ACT and Section 417, 420, 504, 506 and 509 of IPC 2. I have heard the learned counsel appearing for the petitioner and learned HCGP appearing for the respondent – State.
3. The gist of the complaint is that complainant is a woman police constable resident of Sindanoor. Both the petitioner-accused and the complainant came in contact in the month of November 2015 and both of them developed love. It is further alleged that under the said premise, both of them had sexual intercourse at the behest of the petitioner. It is further stated that she was taken to Ganesh lodge at Bengaluru and Sri Kenchamba Lodge, Bengaluru and there also he had sexual intercourse with her. It is further alleged that the petitioner has also taken Rs.9,000/- from the complainant. It is further stated that after sometime, he started disliking the complainant and threatened to insult over the phone telling that she belongs to lower caste and it is not possible for him to marry. It is also further stated that he used to make a video calls and WhatsApp induced her to become nude and he also become nude and aggrieved by the same, she narrated all the things to the parents of the accused who instead of advising him insulted her over the phone and gave a life threat. Under this circumstance, she filed the complaint.
4. It is the submission of the learned counsel for the petitioner-accused that there is no serious allegation as against the petitioner to attract the provisions of 376 of IPC as it was a consensual sexual act. He further submitted that when the charge sheet was filed, Section 376 of IPC was not included and subsequently the same has been included. He further submitted that the records indicate that there is no element of force when the complainant was taken to two lodges. For the first time she has gone to the lodge in uniform, under this circumstance, there is no question of forcefully taking her to the lodge and had sexual act. Further, it is stated that the allegations made in the complaint indicates that she has called over the phone abused by taking the name of the caste, so provisions of Section 3 (1) (r) is not attracted and it was not in the public view.
It is further submitted that entire records of the charge sheet indicates that he was ever willing to marry her and only because of some unrestrained reasons he told that he will not marry and it is only breach of promise and not any other offence. He further submitted that he is ready to abide by the conditions imposed on him by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner-accused on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that petitioner-accused abused the complainant by taking the name of her caste and he was sexually assaulted her and he has taken some amount from her. He further submitted that alleged offence is a serious offence, if the accused-petitioner is enlarged on bail, he may abscond and may not be available for trail. On these grounds, he prays to dismiss the petition.
6. Though this Court issued notice to the complainant and served through the police, she has remained absent.
7. I have carefully and cautiously gone through the submission made by the learned counsel appearing for the petitioner and learned counsel appearing for respondent – State.
8. On going through the records including the charge sheet materials, it clearly goes to show that there is no force. As such, when the statements of the Devaraj- CW.12, CW-13 and CW-14 are verified, they indicate that the complainant herself has gone to the lodge and obtained the room key and she was in uniform at that time and thereafter sexual act has been committed. This itself clearly goes to show that she is a major and that the said act is a consensual sexual act. As could be seen from the records, it indicate that the accused has scolded by taking the name of her caste over phone. The provisions of Section 3 is also not attracted. No doubt, it is a matter which has to be considered at the time of trial. Taking into consideration the above said facts and circumstances, I fell that the custodial interrogation is not necessary and since already the charge sheet has been filed, I feel by imposing some stringent conditions, if the petitioner-accused is enlarged on bail, it is going to meet the ends of justice. In that light, petition is allowed.
9. Petitioner-accused is enlarged on bail in Crime No.149/2018 of Upparpet Police Station Police Station, Bengaluru City for the offences punishable under Sections 3(1)(r) (s), 3(1) (w) (ii) of SC/ST (POA) ACT and Section 417, 420, 504, 506 and 509 of IPC subject to the 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 tamper with the prosecution evidence directly or indirectly.
3. He shall be regular in attending the Court on all the dates of hearing 4. He shall mark his attendance once in fifteen days at the nearest police Station at Bagalkot till the trial is concluded.
Sd/-
JUDGE BS