IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV CRIMINAL PETITION No. 744/2019 Between:
Shivakumar M @ Shivu S/o. Manju, Aged about 19 years, R/at No.52, 6th Cross, Near Kumarans School, Tata Silk Farm, Bangalore 560 015.
… Petitioner (By Sri. Nataraj. D., Advocate) And:
State by Banashankari Police Station, Bangalore.
Rep. by Public Prosecutor High Court of Karnataka, Bangalore 560 001.
(By Sri. S. Rachaiah, HCGP) …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C., praying to enlarge the petitioner on bail and release him from judicial custody pertaining to Spl.C.C.No.862/2018 of Banashankari Police Station pending on the file of Hon’ble LIII Addl. City Civil and Sessions Judge at Bangalore for the offence punishable under Section 363, 366, 376 of IPC and Sections 4 & 6 of the POCSO Act.
This Criminal Petition coming on for orders this day, the Court, made the following:
ORDER Petitioner is seeking to be enlarged on bail in connection with his detention pursuant to the proceedings in Spl.C.C.No.862/2018 for the offences punishable under Sections 363, 366, 376 of IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012.
2. Notice has been served on the complainant.
3. The case of the prosecution is that a complaint was filed by the mother of the victim on 19.09.2018 stating that her elder daughter who is studying in 9th standard had developed some intimacy with the accused. It is stated that the parents of the victim had warned the victim as well the petitioner not to continue with their relationship. It is further stated that on 18.9.2018 when the victim had gone to school, victim’s father noticed and admonished the victim. It is stated that on the same day, victim is said to have gone out of the house and was missing. A complaint was lodged expressing suspicion that the petitioner had taken away the complainant. After the complaint was filed, FIR was registered and investigation is complete and charge sheet has been filed.
4. Learned counsel for the petitioner submits that version of the complainant in the complaint itself points out to a consensual relationship between the petitioner and the victim. It is also pointed out that the medical records do not indicate any force employed by the petitioner nor are there any injuries. Hence, it is contended that this aspect of the matter has to be kept in mind.
5. It is noted that the statement of the victim under Section 164 of Cr.P.C. has also been recorded and it comes out from the statement that the petitioner was known to the victim.
6. Learned High Court Government Pleader points out that in view of the age of the victim, question of consent does not arise.
7. However, the fact that the petitioner and the victim are known to each other as per the version of the complaint and other materials, the said aspect is to be taken note of as a mitigating factor.
8. Taking note of the fact that the commission of offence is a matter to be proved during trial and the medical records prima facie do not indicate sexual intercourse and the said finding is stated to be subject to the FSL report to be obtained, without expressing any opinion as regards to the weight of such evidence, that the commission of offence is a matter to be proved during trial, case is made out to enlarge the petitioner on bail.
9. It is also to be noticed that the petitioner has been in custody since 22.10.2018 and trial has not yet commenced.
10. The Sessions Court had rejected the petition of the petitioner. However, in light of the observations made above, case is made out for enlarging the petitioner on bail.
11. Accordingly, the bail petition filed by the petitioner under Sec. 439 of Cr.P.C. is allowed and the petitioner is enlarged on bail in Spl.C.C.No.862/2018 for the offences punishable under Sections 363, 366, 376 of IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012, subject to the following conditions:
(i) The petitioner shall execute a personal bond of `1,00,000/- (Rupees one Lakh only) with one surety for the likesum to the satisfaction of the concerned Court.
(ii) The petitioner shall fully co-operate for the expeditious disposal of the trial.
(iii) The petitioner shall not tamper with evidence, influence in any way any witness.
(iv) In the event of change of address, the petitioner to inform the same to the concerned SHO.
(v) Any violation of the aforementioned conditions by the petitioner, shall result in cancellation of bail.
Any observation made herein shall not be taken as an expression of opinion on the merits of the case.
Sd/- JUDGE VP