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.2625/2019 BETWEEN:
Sri.B.Ganesh, S/o.Babu, Aged about 35 years, R/at Shenay Padavu, Mundakoor Post, Karkala Taluk, Udupi District-574 104. …Petitioner (By Sri.S.Balakrishnan, Advocate) AND:
State of Karnataka, By Mulky Police, Represented by Special Public Prosecutor, High Court Building, Bengaluru-560 001. ... Respondent (By Sri. S.Rachaiah, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C., praying to enlarge the petitioner on bail in Cr.No.23/2019 registered by Mulki Police Station, Mangaluru for the offence p/u/s 376 and 417 of IPC.
This Criminal Petition coming on for Orders, this day, the Court made the following:
ORDER The petitioner is seeking to be enlarged on bail with respect to his detention in connection with proceedings in Crime No.23/2019 with respect to the offences punishable under Sections 376 and 417 of IPC.
2. The complainant is stated to have given the information by typed report on 25.02.2019 stating that her husband has died on 02.10.2009 and she had two children from the said wedlock. It is contended that subsequent to the death of her husband, she came in contact with the petitioner who was her classmate. It is stated that intimacy developed between the petitioner as well as the complainant. It is further stated that the complainant was taken to Bengaluru by the petitioner on two occasions and it is alleged that there was a promise to marry and with such promise, he has had sexual intercourse with the complainant. The complaint states that contrary to the promise when it came to her knowledge that the petitioner intended to marry some other person, a complaint was lodged.
3. The learned counsel for the petitioner states that the question as to whether there was a promise to marry is a matter to be proved during trial and there is no question of any force used by the petitioner insofar as there was a consensual relationship between the petitioner and the complainant.
4. Learned HCGP states that the facts would makes it a clear case insofar as there was a breach of promise to marry the complainant.
5. Having heard both the sides, it is to be noted that the petitioner is aged about 35 years. The question of use of force, the aspect of consent and whether the consent was obtained on the basis of promise made by him, is a matter to be proved during the trial. The element of consent prima-facie comes out from the material on record. But as to whether such consent was procured by any promise is a matter that can be proved only during trial.
6. The Sessions Court had rejected the application of the petitioner noticing that investigation is still underway. However, charge sheet has been filed and in the light of the observations made above, petitioner is entitled to be enlarged on bail.
7. Accordingly, petition is allowed and petitioner is enlarged on bail in Crime No.23/2019 for the offences punishable under Sections 376 and 417 of IPC, 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) The petitioner shall not indulge in any criminal activities of like nature.
(vi) 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 NS