IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MRS JUSTICE RATHNAKALA CRIMINAL PETITION NO.2268 OF 2017 BETWEEN:
SRI. LOKESH, S/O. LATE SIDDAPPA, AGED ABOUT 26 YEARS, R/O. GANADAKATTE, CHIKKAJAJURU VILLAGE, CHANNAGIRI TQ, DAVANAGERE-577 552.
... PETITIONER (BY SRI. ASIM MALIK FOR SMT. RASHMI JADHAV, ADV.) AND:
STATE OF KARNATAKA, BY WOMAN PS, DAVANAGERE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560 001.
... RESPONDENT (BY SRI. K. NAGESHWARAPPA, HCGP) 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.13/2017 OF WOMAN POLICE STATION, DAVANAGERE, WHICH IS REGISTERED FOR THE OFFENCE P/U/S 420, 376, 506 R/W 34 IOF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel for the petitioner and the learned Government pleader for the respondent/State.
2. The respondent/police has registered a case against the petitioner and three others in respect of the offences punishable under Sections 420, 376, 506 read with Section 34 of IPC in Crime No.13/2017.
3. The allegation is that the complainant Ms. Jyothi came in contact with the petitioner/1st accused in the year 2012. Their acquaintance turned into affair. The petitioner at that point of time was working as an Electrician at Chikkajajuru. He took the complainant to his house during December 2014 and committed forcible sexual intercourse on her. However, he assured to marry her and from 2014 till January 2017, on many occasions he had forcible sexual intercourse with her. During 3rd week of January 2017 also, he came to her residence and committed rape on her. He took her to Davanagere Sub-Registrar’s Office and filled the forms. On 01.02.2017, the family members of the petitioner threatened the complainant and her uncle of dire consequences if ever she raises the issue of marriage etc., 4. Learned counsel for the petitioner Sri. Asin Malik for Smt. Rashmi Jadhav submits that from the reading of the complaint allegations it emanates that the complainant is an educated and earning lady. She had voluntarily visiting the house of the petitioner from 16.12.2014 till January 2017. Though she alleges of forcible sex on her, at no point of time, she seems to have contemplated action against him. The very fact that the petitioner took her to the Sub-Registrar’s Office to marry her implies that there is no such fraudulent intention on his part. It is only subsequent to the intervention of the family members, he had to succumb to them and marry another girl on 04.02.2017. The breach of promise to marry and fraudulent intension to marry are two different aspects. The Apex Court in the judgment of Dilip Singh alias Dilip Kumar V/s. State of Bihar reported in (2005) 1 Supreme Court Cases 88, considered this aspect of the matter at Para-
35 of its judgment and observed that there shall not be an intention to marry a prosecutrix at all from the inception to attract the offence under Section 376 of IPC. Due to unavoidable circumstances, the petitioner had to resign from his promise to marry the complainant. It is only on his marriage, the complaint is filed by the complainant. He is ready to co-operate with the Investigating Officer and in view of the registration of the non-bailable offences against him, he apprehends arrest which will have bearing on his service with the Central Government.
5. While opposing the petition, the learned HCGP submits that as of now, a prima-facie case is made out from the complaint allegation that under the false assurance of marrying the complainant, for three years the petitioner had forcible sexual intercourse with her and now he has avoided her. The Apex Court in its judgment in the case of State of U.P. V/s. Noushad in Crl. Appeal No.1949/2013, considered the conduct of the accused therein in obtaining the consent of the prosecutrix fraudulently, under a misconception of fact. The petitioner is required for medical examination and his presence in the custody is required by the Investigating Officer in depth interrogation. This Court in Crl. Petition No.101082/2016 dated 03.10.2016, wherein the accused was charged for offence under Section 376 of IPC on false assurance of marriage, refused the bail.
6. Perused the investigation papers. The Investigating Officer has conducted spot Mahazar and examined witnesses in support of the complaint allegation. Accepting the case of the prosecution, on the face of the complaint allegation it emanates that the complainant is an educated and working lady aged about 26 years. She has visited the house of the petitioner where he was residing alone at Chikkajajuru and he has also visited her residence at Davanagere. Until the petitioner registered his marriage with Sub-Registrar, Chennagiri on 04.02.2017, she did not take any action against him in respect of her grievance and allegations against him. As per the submission of the learned counsel, petitioner is willing to subject himself for medical examination. Since there is no allegation about the petitioner extorting any material in cash or kind from the complainant, the nature of allegation does not require his custodial interrogation. Whether it is an incidence of breach of promise or false assurance of marriage that would be a matter for judicial interpretation after collection of evidence. Without expressing any opinion about the merit or de-merit of the case, on the sole ground that the petitioner is a married man and being in the employment of the railways, with no chance of its fleeing away from the process of law, there is no impediment to allow the petition.
7. Accordingly, petition is allowed. The petitioner is enlarged on bail in Crime No.13/2017 registered by the Woman Police Station, Davanagere, on the following conditions:
(i) In the event of petitioner’s arrest by the respondent – Police, in respect of the above case, he shall be released on bail, on his executing a self bond for a sum of Rs.50,000/- (Rupees Fifty Thousand only) with one local surety for the likesum to the satisfaction of the Investigating Officer.
(ii) He shall make himself available before the I.O. for interrogation and subject himself for medical examination.
(iii) He shall co-operate with the I.O. during the further course of investigation and appear before him as and when directed.
(iv) He shall not threaten the complainant or her family members.
(v) He shall not approach the complainant directly or telephonically.
Sd/- JUDGE snc