IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.7205/2017 Between:
Shek Shafi Ulla Shek Sanaulla Aged about 40 years S/o Shek Sanaulla R/at Honganuru village Kasaba Hobli Channapatna Taluk Ramanagara District-571 511. (By Sri Hanumaiah H.C., Adv.) And State of Karnataka By Ramanagara Rural Police Station Reptd. by State Public Prosecutor High Court Building Bangalore- 560 001.
(By Sri Chetan Desai, HCGP) ...Petitioner ...Respondent This Crl.P is filed under Section 438 Cr.P.C praying to enlarge the petitioner on bail in the event of his arrest in Cr.No.371/2017 of Ramanagara Rural Police Station, Ramanagara for the offence p/u/s 376, 506 of IPC.
This Criminal petition coming on for orders this day, the court made the following:
ORDER This petition is filed by the petitioner/accused under Section 438 of Cr.P.C. seeking anticipatory bail, to direct the respondent-police to release the petitioner on bail in the event of his arrest for the offences punishable under Sections 376, 506 of IPC registered in respondent-police station Crime No.371/2017.
2. Brief facts of the prosecution case that the complainant is the victim. In the complaint, it is stated that she is practicing as Advocate for the last one year and residing at Honganuru village, Kasaba Hobli, Channapatna Taluk. The petitioner Shek Shafi Ulla Shek Sanaulla S/o Shek Sanaulla is dealer in cement and he is also residing in the same village. Every day the petitioner used to contact over phone and he was pretending that he was in love with her. He was making call from his mobile phone number 9964037710 to her mobile number 8971816233 and also sending messages to her. On 20.01.2017 at about 12.30 p.m., after completion of her work in Magadi Court, she was coming back from Magadi, the petitioner called her informing her that, he will take her to village. On reaching Ramanagara at about 3.00 p.m., he took her to Ramadevara Betta and parked his motorcycle in the parking area and later he took her to a desolated place and after undressed her, he committed sexual intercourse on her. She started crying but, he informed her that he would marry her. Again on 24.05.2017 he called her near Ramanagara Court, when she spoken to him, he informed her that after talking with elderly people he promised to marry her. Later he took her to Ramadevara Betta and after parking his vehicle, again he took her to a desolated place and threatened her with dire consequences, later undressed her and committed sexual intercourse with her against her will, again threatened her to kill her and her children informing that he will take her photographs and produced the same in mobile phone and T.V. since there was Ramzan festival, he promised to marry her after festival. Consequently, there was delay in filing the complaint. On the basis of the said complaint, case came to be registered for the said offences.
3. Heard the arguments of the learned counsel appearing for the petitioner/accused and so also the learned High Court Government Pleader appearing for the respondent-State.
4. Learned counsel appearing for the petitioner made submission that even looking to the complaint averments, the alleged first incident occurred on 20.01.2017 and there was no sort of protest from the complainant. The second incident occurred on 24.05.2017 even at that time also, there was no sort of protest from her. Learned counsel submitted that the victim is an Advocate, know law better than as a layman. Learned counsel further made submission that she is a married woman having two children. Learned counsel has drawn the attention of the Court that the complainant has filed a petition under Domestic Violence Act against her husband and his family members and drawn the attention of the Court at para No.4 of the said petition. Learned counsel also made submission that the marriage of the complainant is in subsistence and there was no divorce at all. Learned counsel submitted that the question of petitioner promising the complainant that he will marry her does not arise at all. Learned counsel submitted that if really such incident has taken place, immediately she could have lodged the complaint but, there is delay in lodging the complaint. Therefore, the learned counsel submitted that looking to these materials placed on record, prima- facie they goes to show that even if there is sexual act in between the two, it is consensual in nature. Learned counsel submitted that the petitioner is ready to abide by any condition that may be imposed by this Court. Hence, he submitted that the petitioner may be admitted to anticipatory bail.
5. Per contra, learned High Court Government Pleader has made submission that, looking to the contents of the complaint, it goes to show that the alleged act has taken place on the misrepresentation made by the petitioner herein that too when she was coming from the Court premises. The petitioner was on his two-wheeler and he made her to believe that he will take her to village, but on the contrary, he took her to the isolated place, there he removed her cloths and committed sexual intercourse on her. Learned High Court Government Pleader further made submission that as far as the delay is concerned, the contents of the complaint and statement given by the complainant under Section 164 of Cr.P.C clearly demonstrated that there is reason for not filing the complaint immediately and keep mum. Learned High Court Government Pleader submitted that the petitioner threatened her, if she disclosed about the incident to anybody, he is going to finish off the complainant and her two children and also threatened that recording photographs and scenes that he has taken-up, will be published in the T.V and in other public medias to make known to the entire world, because of that reason, she kept mum. Learned High Court Government Pleader further made submission that as the investigation still under progress, the petitioner is required for custodial interrogation by the Investigating Officer, the petitioner is not entitled for grant of anticipatory bail.
6. I have perused the grounds urged in the bail petition, FIR, complaint and other materials placed on record and so also, the statement of the victim recorded under section 164 of Cr.P.C., before the J.M.F.C., Court, Ramanagara.
7. Looking to the complaint averment, it goes to show that the alleged incident of sexual intercourse on the complainant it was on two dates i.e., on 20.01.2017 and 24.05.2017. The main contention of the petitioner herein that there was no sort of protest at all by the complainant. Therefore, the material will not attract the ingredients of the alleged offence under Section 376 of IPC.
8. I have perused the contents of the complaint and so also, the statement of the victim recorded under Section 164 of Cr.P.C. The complainant has stated in the said complaint that the petitioner when took her to the isolated place gave her one flower and asked her to smell and when she smelt it, he grappled and he himself removed her cloths and then committed sexual intercourse on her. No doubt, this was not disclosed and immediately there was no complaint by the complainant on the alleged act of the petitioner on 20.01.2017. But, it is stated that again on 24.05.2017, the petitioner took her to the similar place and again he has committed sexual intercourse on her. Perused the statement of the victim recorded under Section 164 of Cr.P.C., the reasons are offered for the delay in lodging the complaint and why the complainant keep mum without lodging the complaint. She was threatened by the petitioner that in case if she disclosed the fact, he will finish off her and also her two children and he also make it publish the photographs and scenes recorded in his mobile phone through T.V. and other medias. According to her, this was the reason that he should not to publish the scenes recorded and she afraid about the threat given by the petitioner that he will make same publish through media channels. Therefore, at this stage perusing these materials, such serious allegations are made, only on the ground that the complaint was not immediately given and there is explanation offered by the complainant to that effect. Therefore, looking to the materials placed on record and in view of serious offence alleged against the petitioner, I am of the opinion that custodial interrogation of the petitioner is required by the Investigating officer and it is not a fit case for grant of anticipatory bail to the petitioner. Accordingly, the petition is hereby rejected.
Sd/- JUDGE DL