IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.6183 OF 2018 BETWEEN:
Sri Santhosh @ Santu, S/o. Nemmya Naik, Aged about 23 years, R/at. Yasa Malapura Thanda, Huvinahadagali Taluk, Bellari Post, Bellary District – 582 101.
...Petitioner (By Sri. B. Lethif, Advocate) AND:
State of Karnataka By Women Police Station, Udupi District.
Represented by SPP High Court of Karnataka Bengaluru – 01.
...Respondent (By Sri. M. Divakar Maddur – HCGP) This Criminal Petition is filed under Section 439 of Cr.PC praying to enlarge the petitioner on bail in Cr. No. 3/2017 of Women Police Station, Udupi district for the offence P/U/S 376, 506 of IPC and Section 6 of POCSO Act.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R The present petition has been filed by the petitioner-accused under Section 439 of Cr.PC to release him on regular bail in Crime No.3/2017 of Women police station, Udupi for the offence punishable under Section 376, 506 of IPC and Section 6 of POCSO Act, 2012.
2. I have heard learned counsel for the petitioner-accused and learned HCGP for the respondent-State.
3. The case of the complainant is that the mother of the victim came to Malpe Port for their avocation and were residing in a rented room along with her mother, father and brothers and they were doing coolie work. The accused petitioner hails from Huvinahadagali Taluk and used to go to the house of the complainant. He came in contact with the victim girl and started talking with her and on a promise to marry her, he had sexual intercourse with her about 4-5 occasions in the house. The said fact was not informed by the victim to anybody and when the victim was contacting the accused over phone, the said fact was heard by the complainant and when they called the accused asking to marry the victim girl, he refused to marry her. On the basis of the complaint, a case has been registered.
4. It is the submission of learned counsel for the petitioner accused that already charge sheet has been filed and the accused petitioner is not required for further investigation or interrogation. He further submits that the complainant is a consenting party to the alleged crime and it is a consensual sex. He further submits that the statement of the victim was recorded under Section 164 of Cr.PC, even that is also clearly goes to show that it is a consensual sexual act. The complaint was registered only because the accused petitioner refused to marry the victim girl. He further submits that even the medical reports clearly show that there is no force or restraint found on the private part of the victim. Further, the age of the victim is in between 16-17 years, she was matured and she also know the consequences. He further submits that the accused petitioner is ready to abide by any of the terms and conditions that may be imposed by this Court and ready to offer sureties, if he is released on bail. On these grounds, he prays to allow the petition and to release the accused petitioner on bail.
5. Per contra, learned HCGP vehemently argued and submitted that the petitioner accused has sexually assaulted the victim girl by misrepresenting that he is going to marry her when she was minor. He further submits that the records also clearly indicates that the accused petitioner has given tablets and aborted when she was pregnant. He further submits that the accused petitioner has committed heinous offence of sexual assault on a minor girl. Even the statement recorded under Section 164 clearly goes to show that the accused petitioner has involved in the alleged crime. He further submits that if the petitioner accused is released on bail, he may abscond and may not be available for the trial. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submissions of learned counsel appearing for the parties and also perused records.
7. As could be seen from the contents of the complaint, it clearly goes to show that earlier the petitioner and the victim were having contact with each other, thereafter, the accused stated that he is going to marry her, thereafter they had sexual intercourse for 4 to 5 times in the said house. The said act has not been informed to the parents of the victim. Be that as it may. As could be seen from the medical reports issued by Department of Forensic Medicine, Kasturba Medical College, Manipal where the victim has been examined to trace out her age and the doctor has opined based on the physical, dental and radiological observations has opined that the victim is aged more than 15 years and less than 16 years and even after detailed examination the doctor has opined that there is no signs of suggestive of application of force or restraint at the time of examination. Even by going through other material, it clearly shows that it is a consensual sexual act and there was no force. Though it is contented by learned HCGP that the victim was a minor, but after medical examination, the victim is found to be 16 years old and she was knowing the consequences of the said act and she is the consenting party to the said act. Be that as it may. Even it is submitted during the course of arguments that already the victim has married and she is living happily with her husband. The charge sheet has already been filed and the trial may take some more time. Under the facts and circumstances, if by imposing some stringent conditions, the accused petitioner is enlarged on bail, then, it is going to meet the ends of justice.
In the light of the discussion held above, the petitioner accused is enlarged on bail in Crime No.3/2017 of Women Police Station, Udupi for the offence punishable under Section 376, 506 of IPC and Section 6 of POCSO Act, subject to following conditions;
1. The 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 threaten the complainant or the victim in any manner, in the event if any such activity is done, the respondent is at liberty to move the Court for cancellation of bail.
3. He shall mark his attendance on first of every month between 10.00 a.m. to 5.00 p.m. till trial is concluded.
4. He shall be regular in attending the trial.
5. He shall not leave the jurisdiction without permission of the Court.
Sd/- JUDGE PN/-