IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MAY, 2019 BEFORE THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL PETITION NO.3091 OF 2019 BETWEEN:
SRI.KUMAR GOWRAV, S/O LATE MOTAPPA, AGED ABOUT 38 YEARS, RESIDING AT NO.T-10, GURUPRIYA AKASH GANGA APARTMENT, C-BLOCK, 3RD FLOOR, 1ST A MAIN, 3RD CROSS, ISRO LAYOUT, K.S.LAYOUT, BENGALURU – 560078.
...PETITIONER (BY SRI V.LAKSHMINARAYANA, SENIOR COUNSEL FOR SRI.S ISMAIL ZABIULLA, ADVOCATE) AND:
THE STATE OF KARNATAKA, BY KUMARASWAMY LAYOUT POLICE STATION, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 560001.
...RESPONDENT (BY SRI DIVAKAR MADDUR, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.104/2019 OF KUMARASWAMY POLICE STATION, BENGALURU FOR THE OFFENCE P/U/S 376, 354-D, 342, 504, 506 OF IPC R/W SEC.3(1)(w), 3(1)(r)(s)(2)(va) of SC/ST (POA) AMENDMENT ACT.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER In this petition, the petitioner has sought for his enlargement on bail in Crime No.104/2019 of respondent – police for the offence punishable under Sections 376, 354(D), 342, 504 and 506 of Indian Penal Code read with Section 3(1)(w), 3(1)(r)(s)(2)(va) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015.
2. It is alleged in the FIR that the present petitioner calling himself as producer of movies got himself introduced to the victim girl on the protest of getting her the chance in his alleged ensuing movies and in the pretext of taking her to the audition test, took her to his house and subjected her to forcible sexual intercourse despite her protest. It is further alleged that he has threatened of dire consequences as well as publishing the previous acts of sexual intercourse, he had with her. The petitioner is said to have been repeated the same acts several times for a continuous period of about two years.
3. Learned Senior Counsel appearing for the petitioner in his argument submitted that the very complaint itself on the face of it clearly go to show that the complainant had stated that it was not single stray incident, but, it was shown as the continuous act extending for more than two years at all time and at all place, where the alleged acts are said to have taken place. The alleged victim girl had not shown the protest for the alleged act. Admittedly, she was a major and as such a consenting party.
4. Learned High Court Government Pleader in his argument submitted that the complaint has given a detailed picture as to how the victim girl has suffered continuously for a long time. He further submitted that the alleged offence is heinous and that the victim girl is herself a complainant and has given a detailed account of the alleged incident. As such, the accused does not deserve to enlarge on bail.
5. This Court on 08.05.2019 has ordered issuance of notice to the complainant since the alleged victim girl was said to be belonging to Scheduled Caste. Learned High Court Government Pleader today while producing copy of the acknowledgment of service of notice has submitted that from Commissionerate of Police, a notice has been served upon the complainant on 03.05.2019 itself. Learned Senior Counsel for the petitioner has also filed an acknowledgment showing the service of hand summons upon the alleged victim girl on 19.05.2019. Despite the service of notice both by the police as well as by the petitioner, the alleged victim girl has not responded to the same either by appearing before the Court by herself or through her representative or counsel. Thus, this Court has already given a fair opportunity to the complainant.
6. On perusal of the complaint, at this stage, prima facie, it goes to show that even according to the complainant, the alleged incident of the alleged sexual assault for the first time is said to have been taken place in the year 2016. Even according to the complainant, after the said incident, she did not inform anybody about the alleged incident nor has taken any measures to protect her interest and ensuing appropriate legal action against alleged culprit. On the other hand, very same complainant has stated that the said act of sexual assault or sexual intercourse was repeatedly and constantly being practiced even thereafter also till 2019 and that too at different places on different dates. In her complaint itself, she has stated that such an act of sexual intercourse which had commenced in the month of September 2016 had continued till March 2019 and on an average of at least thrice a week both of them were having sexual relationship. In that scenario, whether the alleged victim was a consenting party to those acts? if so, under what circumstances. In such a situation, whether the alleged offences have taken place and they really attract the offences with which he has been charged, are all the matters of detailed consideration at the stage of final hearing of the matter.
7. Further, it is not the case of the prosecution that continuation of accused in judicial custody is required for investigating purpose also. Thus, imposing reasonable restrictions, the petitioner/accused could be enlarged on bail. Accordingly, I proceed to pass the following:
ORDER The petition is allowed. The petitioner be enlarged on bail in Crime No.104 of 2019 of Kumaraswamy Layout Police Station, subject to the following conditions:
i) That the petitioner shall execute a personal bond for a sum of `2,00,000/- (Rupees Two Lakh only) with two solvent sureties, with proof of their address and to the satisfaction of the enlarging Court.
ii) The petitioner to give in writing about the change in his address, if any, to the Investigating Officer as and when such change occurs and obtain acknowledgement in that regard.
iii) He shall appear before the Court on all the dates of hearing.
iv) He shall not tamper the prosecution witnesses and documents.
SD/- JUDGE NBM