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.8262/2018 BETWEEN:
SAJID S/O. LATHIF, AGED ABOUT 21 YEARS, COOLIE, R/O. HUNASAEKATTE JUNCTION, BHADRAVATHI TALUK, SHIVAMOGGA, DISTRICT-577115 (NOW IN JUDICIAL CUSTODY) …PETITIONER (BY SRI RAVI V. ADV.,) AND:
STATE OF KARNATAKA THROUGH RURAL POLICE STATION BHADRAVATHI REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU-560001.
(BY SRI. K.P. YOGANNA, HCGP.,) ...RESPONDENT THIS PETITION IS FILED UNDER SECTION 439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.241/2018 OF BHADRAVATHI POLICE STATION, SHIVAMOGGA FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 366, 376 (2)(I) OF IPC AND SECTIONS 4 AND 7 OF POCSO ACT 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.241/2018 of Bhadravathi Police Station for the offences punishable under Sections 366, 376 (2)(i) of IPC and Sections 4 and 17 of POCSO Act.
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 a missing complaint was registered by the father of the victim. Upon tracing of the victim, she gave the statement stating that she is studied upto S.S.L.C., she has been written the exams and has failed. She was acquainted with the petitioner-accused and both were fell in love with each other. Before one year, when her father and mother visited Mandanagadde, at that time, the victim’s grandmother and victims were in the house, the petitioner called the victim through mobile phone and when she came out of the house, they went near the land of the petitioner’s grandfather and thereafter, the petitioner kissed her and touched the victim’s body and the petitioner told the victim that he is loving her and wanted to marry. Thereafter he had physical contact with the victim and promised her to marry and thereafter she was taken to various places and after coming to know the complaint, she came back and on the basis of the said complaint, a case of registered.
4. It is the submission of the learned counsel for the petitioner that the complaint disclosed that the victim has voluntarily came out of the house and called the petitioner and went with him, they were loving with each other and that there is no abduction of the victim. He further submitted that even in 164 statement of the victim, nothing has been stated except having physically contact with the victim and also submitted that the victim is a matured girl and she was aware of the worldly affairs and knowing fully well she went with him and it is a consensual sexual act and not forcible one. Hence, the provisions of POCSO Act is not applicable to the present case. 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 took the minor victim and thereafter she has been sexually assaulted. The medical report also clearly goes to show that she has been sexually assaulted by the accused-petitioner. If the accused is enlarged on bail, he may abscond and may not be available for trail. On these grounds, he prays to dismiss the petition.
6. 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.
7. On perusal of the contents of the complaint and other materials, it clearly goes to show that it is the victim who called the petitioner-accused and thereafter he took her and they were in physical contact with each other. Even as could be seen from the records, she is aged about 17 years and she was a matured girl and it is a consensual sexual act and not forcible one. Even 164 statement also supported the said contention of the learned counsel for the petitioner-accused.
8. 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 that 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.241/2018 of Bhadravathi Police Station for the offences punishable under Sections 366, 376 (2)(i) OF IPC and Sections 4 and 7 of POCSO Act 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 not leave the jurisdiction of the Court without prior permission.
Sd/-
JUDGE BS