IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.6518/2018 BETWEEN:
Sri Ravindra Aged about 33 years S/o. Babu Mugera R/at: No.1-107 Malabe House, Allipade Post Devasyapadoor Bantwal D.K. District- 574 143. ...Petitioner (By Sri Nishit Kumar Shetty., Advocate) AND:
The State of Karnataka by Station House Officer Buntwala rural Police Station Mangalore Represented State Public Prosecutor High Court Building Bangalore-560 001. ...Respondent (By Smt. Namitha Mahesh B.G., HCGP) This Criminal Petition is filed under Section 438 of Cr.P.C praying to enlarge the petitioner on bail in the event of his arrest in Crime No.345/2017 of Buntwal Rural Police Station, D.K. District for the offences p/u/s. 504, 506, 417 and 376 R/w 34 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 petitioner – accused No.1 under Section 438 of Cr.P.C to release him on anticipatory bail in the event of his arrest in Crime No.345/2017 by Buntwala Rural Police Station for the offences punishable under Sections 504, 506, 417 and 376 R/w Section 34 of IPC.
2. I have heard the learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State.
3. The victim/complainant has filed the complaint alleging that she was having love affair with petitioner/accused No.1 since four years. The said fact was not informed to any of her relatives, but they have decided to marry. In the month of June, her family members have decided to perform her marriage with one Ravi of Vitla and she agreed for the same. The engagement ceremony was also taken place on 13.07.2017 and the marriage date was fixed on 23.11.2017. At that time, the petitioner/accused No.1 came to know the same had started talking with the victim over the phone and forced her to come to Cement workshop. On 23.10.2017 at about 5.00 p.m., when she went there, he took her inside the room and promised her that he would marry her and told her not to marry Ravi and against her will he forcibly had sexual intercourse with her and she did not informed the said matter in her house. On 22.11.2017, the day before her marriage, she came to know through neighbors that the petitioner/accused No.1 has decided to marry another girl. Though petitioner/accused No.1 told that he is going to marry her, but he did not come even the day before her marriage, she got fear and consumed pesticide and fell ill. Immediately, family members took her to Fr. Mullers hospital, where she has been treated and there the doctor told that she was pregnant and their parents came to know that the petitioner herein with an intention to marry her had sexual act. As a result of the same, she has become pregnant. Thereafter, when relatives of the victim went to the house of the petitioner/accused No.1 and asked them to take the complainant and marry, accused Nos.2 and 3 abused them in a filthy language and petitioner/accused No.1 also refused to marry her. On the basis of the complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioner that petitioner/accused No.1 and the victim/complainant were loving since four years and they wanted to marry each other and it is not a forceful physical contact and the provision of Section 376 of IPC is not attracted and it is a consensual sexual act. He further submitted that the complainant was intended to marry one Ravi and subsequently she expressed that she is going to marry petitioner/accused No.1. As such, petitioner had a physical contact with the victim. He further submitted that petitioner/accused No.1 is ready to abide by any conditions imposed by this Court and ready to offer surety. On these grounds, he prays to allow the petition and grant anticipatory bail to petitioner/accused No.1.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the petitioner/accused No.1 forcibly had sexual act with the victim and as a result of the same, the victim/complainant became pregnant and gave birth to a male child. She further submitted that petitioner/accused No.1 is absconding and he is not available for the purpose of investigation or interrogation. The Investigating Officer has to conduct a DNA test and blood test, which has to be taken for the purpose of proving the case and still the investigation is in progress. If the petitioner/accused No.1 is enlarged on bail, he may not be available for investigation and he may abscond. On these grounds, she prays to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and other materials, which has been produced in this behalf.
7. It is the specific contention of the learned counsel for the petitioner that since four years the petitioner and complainant were loving each other and as such physical contact was there between them, it is nothing but consensual sexual act and the provision of Section 376 of IPC is not attracted. It is the matter which has to be considered only at the time of trial. The petitioner has been involved in serious offence of sexual assault on the complainant. There is ample material to connect the accused to the alleged crime. Hence, I feel that it is not a fit case to exercise the power under Section 438 of Cr.P.C., to release him on anticipatory bail, that too when the alleged incident has taken place on 23.10.2017 and the complaint was registered on 21.12.2017 and till then petitioner/accused No.1 is absconding and was not available for investigation or interrogation.
In the light of the above discussion, the petition stands dismissed. If the petitioner/accused surrendered before the Court and apply for regular bail, the above observations will not come in the way.
Sd/- JUDGE nms