IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO. 7051/2018 BETWEEN:
Sri.Murali, S/o Gare Muniyappa, Aged about 25 years, R/at Sunnuru Village, Malur Taluk, Kolar District – 562102. ...Petitioner (By Sri.L.Sudharshan, Advocate) AND:
State of Karnataka, By Mulbagal Police Station, Mulbagal, Rep. by State Public Prosecutor, High court of Karnataka, Bengaluru – 560001. ... Respondent (By Sri.M.Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.219/2017 of Mulbagal Rural Police Station, Kolar for the offences punishable under Sections 363, 376 of IPC and Section 6 of POCSO Act and under Section 9 of Child Marriage Act, 2006.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R The petitioner/accused has sought for release him on bail under Section 439 of Cr.P.C., in crime No.219/2017 (S.C.No.71/2018) of Mulbagal Rural Police Station, Kolar District for the offences punishable under Sections 363, 376 of IPC and Section 6 of POCSO Act and Section 9 of Child Marriage Act, 2006.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. The gist of the complaint is that complainant is the mother of the victim. She filed a complaint stating that on 29.04.2017, the victim went to the lands of the Chinnappaiah and did not return. They searched everywhere but they could not trace her. Then they got doubt that the accused/petitioner has eloped her daughter. Subsequently, victim was traced on 03.02.2018 and she had given her statement stating that she was studying in 9th Standard, she was loving the accused/petitioner and her parents were in search of bride and she was not interested. Thereafter, she went to Marandahalli for treatment and she called the accused and informed about the efforts of the marriage. The accused/petitioner told to come to Malur on 24.09.2017 and she went there at about 5.00 p.m., she found the accused/petitioner and told that she is not interested in the marriage to be performed by her parents and told him to take her and he took her to Ramasandra near Palamner to the house of one Manjunath and he had purchased tali and tied to her. They stayed in Ramasandra for 2 days and thereafter they went to Teertham and took a room on rent and stayed for one week and then went to Attibele and stayed in a rented house and they used to have physical contact. On the basis of the investigation, charge sheet has been filed.
4. It is the submission of the learned counsel for the petitioner/accused that earlier the accused/petitioner has approached this Court in Criminal Petition No.3895/2018, the same came to be dismissed but while dismissing, liberty was given to the accused/petitioner to move for bail after examination of the victim. He further submitted that the victim came to be examined as PW.2 on 25.07.2018 and she has not supported the case of the prosecution. She has turned hostile. Even during the course of cross examination by the learned Public Prosecutor, nothing has been elicited to substantiate the case of the prosecution. He further submits that the victim is aged about 17 years and she herself voluntarily called the accused/petitioner and took him to various places. She was knowing the consequence and it is consensual sexual act and the accused/petitioner is ready to abide by any conditions that may be imposed on him by this Court and ready to offer surety. On these grounds, he prayed to allow the petition and to release the accused/petitioner on bail.
5. Per Contra, learned High Court Government Pleader vehemently argued and submitted that the accused/petitioner has committed heinous offence against a minor by tying tali and having physical contact. He further submits that the alleged act of the accused/petitioner cannot be regularized by the order of the Court. The victim has turned hostile only because the accused/petitioner over powered her, made her depose falsely before the Court. If the accused/petitioner is enlarged on bail, he may tamper with the prosecution evidence and he may not be available for trial. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for both the parties and perused the records.
7. On close reading of the records it reveals earlier the accused/petitioner has approached this Court in Crl.P.No.3895/2018 by order dated 20.06.2018, this Court rejected the bail application filed under Section 439 of Cr.P.C. But while dismissing, liberty had been given to move for bail after examination of the victim. Victim came to be examined on 25.07.2018 and she has not supported the case of prosecution and she has been turned hostile. When the victim herself has not supported the case of the prosecution and even the conduct and other material that which is available, itself clearly goes to show that the victim herself has voluntarily gone along with the accused/petitioner and insisted him to marry and thereafter they had physical contact.
8. Under the peculiar facts and circumstances and when liberty was given to the accused/petitioner to move this Court for bail, I feel that the accused/petitioner has made out a case to release the accused/petitioner on bail. Hence, petition is allowed. Accused/petitioner is ordered to be release on bail in Crime No.219/2017 (S.C.No.71/2018) pending on the file of II Additional Sessions Judge at Kolar for the offences punishable under Sections 363, 376 of IPC and Section 6 of POCSO Act and Section 9 of Child Marriage Act, 2006 subject to the following conditions:
1. Petitioner/accused 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 trial Court.
2. He shall not leave the jurisdiction of the trial Court without prior permission till trial is concluded.
3. He shall mark his attendance once in a month i.e., on 1st of every month between 10.00 a.m., and 5.00 p.m., before the concerned police station, till the trial is concluded.
4. He shall not tamper with the prosecution evidence directly or indirectly.
5. He shall regularly appear before the trial Court for trial, without fail.
Sd/- JUDGE NS