IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.2858/2019 BETWEEN:
Sri. Lokesh L.V., S/o Venkatappa, Aged about 38 years, Care of Commissioner of Income Taxes, Office of the Commissioner, Gandhinagar, Bengaluru – 560 009.
... Petitioner (By Sri. C.V. Nagesh, Senior counsel for Sri. Sandeep Patil, Advocate) AND:
The State of Karnataka, Through Chintamani Sub-Divn.
Chintamani Town Police – 563 125, Chikabalapura, Represented by Public Prosecutor, High Court Building, Bengaluru – 560 001.
... Respondent (By Smt.Namitha Mahesh.B.G, HCGP Notice served on the complainant) This Criminal Petition is filed u/s.438 of Cr.P.C praying to enlarge the petitioner on bail in the event of his arrest in Crime No.27/2019 of Chintamani Town Police Station, Chickballapura District for the offences P/U/Ss 376, 493 and 420 of IPC.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R This petition has been filed by the petitioner/accused No.1 under Section 438 of Cr.P.C. praying this Court to release him on anticipatory bail in the event of his arrest in Crime No.27/2019 of Chintamani Town Police Station for the offences punishable under Sections 376, 493 and 420 of IPC.
2. I have heard Sri. C.V. Nagesh, learned senior counsel for petitioner and learned High Court Government Pleader for the respondent-State. Notice is served to the complainant. The complainant is present before the Court through the learned High Court Government Pleader she has submitted her say.
3. Gist of the complaint is that in a felicitation function, the mother of the complainant came in contact with the petitioner/accused No.1 and she gave a marriage proposal of the complainant to the petitioner/accused No.1. Subsequently, the marriage got fixed and therein, they demanded a sum of Rs.20 lakhs as dowry and other expenses. It is further alleged that accused No.1 demanded a sum of Rs.10 lakhs as he had taken a hand loan. The mother of the complainant told to hold the engagement ceremony on 06.11.2017 and on 06.11.2017, the engagement ceremony has held in a conventional hall and accused No.1 got engaged with the complainant. Subsequently, the complainant received a telephone call from one Smt. Manjula, PSI of Chikkamagalur and she informed that the petitioner/accused No.1 is not having good character and has also received some money from her and she cautioned the complainant not to believe the petitioner/accused No.1. When the mother of the complainant questioned the same to petitioner/accused No.1, he avoided to give reply. It is further alleged that the complainant went to Delhi for coaching of IAS, at that time, accused No.1 came by collecting the mobile number from the mother of the complainant and telephoned the complainant and under the pretext of getting married with the complainant, on 17.04.2018, he met the complainant and on that day, they had physical contact. It is further alleged that on 26.04.2018, the complainant was picked up by the accused No.1 from Airport and took her to her house and there also, he had physical contact with the complainant. When the mother of the complainant asked the accused No.1 as to when he is going to marry her daughter, then accused No.1 told the mother of the complainant that he will marry her after the marriage of his sister. Thereafter, the complainant’s family members went to Tumakuru along with elders and other family members. The family members of petitioner/accused No.1 and elders were also present. There, the accused persons told the complainant, that the present petitioner will not marry the complainant. On the basis of the complaint, a case has been registered.
4. It is the submission of the learned senior counsel for the petitioner that the engagement of both the complainant and the accused petitioner took place on 06.11.2017. Both were highly educated and the petitioner/accused No.1 was ever-ready and intending to marry the complainant. Nowhere, he stated that he is not going to marry the complainant. It is his further submission that in order to attract the provisions of Section 376 of IPC, from the inception of the said promise, under the pretext, if he is prosecuted of sexual assault and having intercourse with her, under such circumstance, it will be considered to be rape as contemplated under Section 375 of IPC. In order to substantiate the said contention, he has relied upon the decision of Hon’ble Apex Court in the case of ANURAG SONI Vs. STATE OF CHHATTISGARH reported in 2019 SCC Online SC 509. It is his further submission that since from the inception, no such intention was there to the petitioner/accused No.1. Even as on 06.11.2017, the engagement was also performed. It is further submitted that the proposal has been made by the mother of the complainant in a felicitation function and in pursuance of the said offer, the engagement has also taken place. Further it is submitted that in the month of February, 2019 a complaint was filed before the Superior Officers of the petitioner/accused No.1. No such allegations have been made in the said complaint. It is further submitted that prior to the filing of the present complaint, the petitioner/accused No.1 has also filed a complaint and to the said complaint, the complainant has given reply on 17.12.2018 wherein, no whisper of sexual assault said to have been committed by the petitioner/accused No.1. Further it is submitted that the petitioner/accused No.1 went to Delhi only on the call of the victim and it is the complainant who called the petitioner/accused No.1 and thereafter, they have moved at various places and thereafter they had a physical contact. It is further submitted that when the complainant came back to Bengaluru, the petitioner/accused No.1 took her from the Airport and they went to the house of the complainant and there, in the house of the complainant beneath the nose of the elders, they had a physical contact, it clearly goes to show that the petitioner was not having any such intention not to marry and the said sexual intercourse which has taken place in between the complainant and accused is not under the pretext of false promise. It is his further submission that the petitioner is also highly educated and he is serving as an Assistant Commissioner Commercial Tax, Class – I Officer and he is all the time available and he is not absconded. It is further submitted that the remaining accused persons have been already released on anticipatory bail by the trial Court. It is his further submission that even by going through the contents of the complaint and other materials, which has been produced clearly goes to show that at no point of time the petitioner/accused No.1 expressed that he was not willing to marry and has not expressed any intention to marry. Even in the messages said to have been passed on to the complainant, he has expressed that he is ever ready to marry. The messages which have been exchanged between the petitioner and the complainant clearly go to show it is only at the instance of the mother of the complainant that the complainant agreed to marry. It is further submitted that under the peculiar facts and circumstances, the provisions of Sections 375 and 376 of IPC are not attracted. The petitioner/accused No.1 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 No.1 on anticipatory bail.
5. Per contra, learned High Court Government Pleader on instruction of the complainant submitted that the petitioner/accused No.1 under the pretext of false promise had physical contact in Delhi and even at Chintamani. She further submitted that in the month of November – 2017, the complainant received a telephone call from one Manjula, PSI from Chikkamagaluru and she informed the conduct of the petitioner/accused No.1 and she clearly told that under the false promise, he had a relationship with her and he had taken the money and the same thing should not happen to her. It is further submitted that even the engagement ceremony has taken place but the petitioner/accused No.1 made her to believe that he is going to marry but actually he was not intending to marry and had physical contact. Under the said facts and circumstance, the provisions of Sections 375 and 376 of IPC are attracted. In order to substantiate her contention, she also relied upon the same decision in the case of ANURAG SONI Vs. STATE OF CHHATTISGARH (quoted Supra). It is her further submission that when the conduct of the petitioner/accused No.1 was adverse to his promise, a complaint has also been registered to the superior officers by the mother of the complainant. Even in spite of the complaint, the petitioner has not turned up and he was not having any intention to marry, that itself clearly go to show that the petitioner/accused No.1 under the pretext of marriage, had a sexual contact with the complainant. Further it is submitted that the petitioner is evading the arrest and has also evaded marrying with the complainant and all these conduct clearly go to show that the petitioner had sexual intercourse with the complainant under the pretext of false promise. There is prima-facie material as against the petitioner/accused No.1. It is further submitted that the petitioner is not available for the purpose of investigation or interrogation. As such, the investigation has been hampered. The present petition has been filed by the petitioner/accused No.1 under Section 438 of Cr.P.C. The discretionary power cannot be exercised when the allegations have been made under Section 376 of IPC. On these grounds, she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
7. Without expressing anything on the merits of the case, if I express anything on the merits of the case, definitely it is going to affect both the complainant as well as the accused during the course of trial. The only consideration which the Court has to consider is that whether prima-facie the material which has been produced go to show that the petitioner/accused No.1 under the pretext of false promise, had physical contact with the complainant or not. On going through all the materials including the exchange of the messages between the parties and the engagement which has been taken place on 06.11.2017 clearly go to show that the said promise is not a false promise or under the pretext of marrying the complainant, the petitioner had sexual contact with the complainant. As observed by the Hon’ble Apex Court in the case of ANURAG SONI Vs. STATE OF CHHATTISGARH (quoted Supra), at paragraph No.37, it has been observed as under:
37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC.”
8. On close reading of the said paragraph, it is clearly stated that the prosecution has to establish and prove that from the inception the accused who gave promise to the victim to marry, did not have any intention to marry and under the pretext if the consent is obtained for sexual intercourse, under such circumstance, it amounts to a rape as defined under Section 375 of IPC.
9. On close reading of the said paragraph along with the facts and circumstances, which has been narrated above, the engagement ceremony has taken place on 06.11.2017 and thereafter, the complainant and the accused have moved to various places and even in the first sexual contact happened in Delhi, the message clearly go to show that it is the complainant who has called the accused petitioner to Delhi and subsequently, when she came to Bengaluru he took her to her house and beneath the nose of the elders of the family they had sexual act. All these circumstance clearly go to show that the petitioner/accused No.1 was not under the pretext of false promise, had sexual intercourse. Be that as it may, even the messages which have been sent if they are perused, nowhere he has expressed that he is not willing to marry her and the alleged incident has started and precipitated only when the phone call has been received from one Manjula, PSI of Chikkamagaluru to the complainant. Till then, no such intention or no such expressions were there. Under the peculiar facts and circumstances, I feel that it is a fit case to release the petitioner/accused No.1 on bail. Hence, petition is allowed.
10. Petitioner/accused No.1 is ordered to be released on anticipatory bail in the event of his arrest in Crime No.27/2019 of Chintamani Town Police Station for the offences punishable under Sections 376, 493 and 420 of IPC subject to the following conditions:
1. Petitioner/accused No.1 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 Investigating Officer.
2. He shall surrender before the Investigating Officer within 15 days from today.
3. He shall not tamper with the prosecution evidence either directly or indirectly.
4. He shall not threaten the complainant or any of the witnesses concerned in the said case.
5. He shall co-operate during the course of investigation.
6. He shall appear before the Investigating Officer and when he is ordered to do so.
7. He shall not leave the State without prior permission.
8. He shall mark his attendance once in a month i.e., 1st of every month between 10.00 a.m., and 5.00 p.m., before the jurisdictional police station, till the charge sheet is filed.
Sd/- JUDGE VBS