IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31st DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. NO. 7468/2019 BETWEEN SRI SHREYAS GANESH PAI SON OF GANESH PAI AGED ABOUT 27 YEARS RESIDING AT NO.311 10TH CROSS, F BLOCK SAHAKARNAGAR BENGALURU – 560 092 ... PETITIONER (BY SRI. AKSHAY PRABHU, ADVOCATE FOR MELANIE SEBASTIAN, ADVOCATE) AND STATE OF KARNATAKA BY INDIRANAGAR POLICE STATION BENGALURU CITY REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001 … RESPONDENT (BY SRI. ROHITH B.J., HCGP SMT. JAYNA KOTHARI, SENIOR ADVOCATE A/W SRI. ROHAN KOTHARI, ADV. FOR COMPLAINANT) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.209/2019 REGISTERED BY INDIRANAGAR POLICE STATION, BENGALURU FOR THE OFFENCE P/U/Ss. 323, 354, 354(A), 354(B), 376, 506 AND 509 OF IPC AND SECTION 67 OF INFORMATION TECHNOLOGY ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY ALONG WITH IA No.I/2019 FOR IMPLEADING, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner and the learned HCGP for the Respondent –State. Perused the records.
2. IA No.1/2019 is filed by the complainant through her advocate seeking permission of the Court to assist the learned HCGP to object for granting of bail. The said application is allowed and the learned counsel for the complainant is permitted to assist the learned HCGP.
3. The petitioner is the sole accused in Crime No.209/2019 of Indiranagar Police Station registered against him for the offence punishable under Sections 323, 354, 354(A), 354(B), 376, 506, 509 of IPC and Section 67 of the Information Technology Act, 2000.
4. The allegations in brief as could be seen from the FIR are that, the accused and the complainant came in contact with each other at Indiranagar, Bengaluru, since 2015 and both of them were loving each other and they developed their relationship into physical contact. But, thereafter, it appears, differences arose between them. It is alleged that on 06.11.2015, the accused started doubting the complainant and with regard to that, he started abusing her and quarrelling with her and it is alleged that on 06.02.2018, he has released some defamatory statements against the complainant in social media.
5. It appears from February 2016 their relationship has been disrupted. But,after long lapse of time, a complaint came to be lodged on 09.09.2019. The respondent-Indiranagar police have registered a case in Crime No. 209/2019 and investigating the matter and in this context, the petitioner was arrested on 10.09.2019 and since then he has been in judicial custody.
6. Learned counsel for the petitioner has strenuously contended that, the complaint lodged by the complainant itself shows that, she is a working woman aged about 27 years and knowing fully well about the consequences of developing intimacy, continued their relationship including the physical relationship up to 2016 and thereafter differences arose in the year 2015. Subsequently on 18.11.2015, it is alleged that the petitioner pressurized her consent for Anal intercourse with him as a gift for his birth day and she refused the same and in spite of that, the accused forcibly had such sexual intercourse with her on the night of 19.11.2016. Therefore, she discontinued her relationship with him from 19.11.2016. In spite of that, till that point of time, no complaint as been lodged up to 09.09.2019. After the marriage of the complainant, she hatched a conspiracy with her husband and lodged a complaint in detail.
7. Learned counsel contended that, actually Section 376 of IPC does not attract, because the relationship between the petitioner and the complainant is a consensual one and the other offences so far as Section 67 of Information Technology Act, 2000 (for short, ‘IT Act’) is concerned, there is no allegation against the petitioner and it is only against one lady by name Kanchan Kumar, who put material in the instagram stating that the petitioner had sexual intercourse with so many other ladies including the said lady by name Kanchan Kumar. But, the learned counsel contended that no complaint has been lodged by the said Kanchan Kumar nor the complainant has lodged any complaint so far as that aspect is concerned. Therefore, the learned counsel contended that, except the offence under Section 356 of IPC, the other offences under Sections 354(B) and 354(A) are virtually bailable in nature and even Section 376 is also not attracted for the present.
8. Per contra, learned HCGP with an active assistance of the counsel for the complainant submitted before the court that, the investigation is still in progress and the police have to collect lot of materials against the accused with regard to his previous conducts and relationships with the complainant. Therefore, at this stage, he is not entitled to be enlarged on bail. Further, it is contended that, in the cases like this, all women folk normally will not go to the police station to lodge a complaint, because of their financial incapability and social apprehension. Therefore, there is a delay in lodging the complaint, and that itself will not take away the allegations made against the petitioner.
9. It is further contended that, on the intervening night of 18/19.11.2015, the incident has happened and on that day, the petitioner has pressurized the complainant to consent for anal sexual intercourse, which was refused by her, but in spite of that, the accused threatened her and committed physical violence to her and had forcible anal intercourse with the complainant, which shows that there was absolutely no consent for the said act and therefore, Section 376 of IPC is attracted. When once the complainant says that, she was not a consenting party, in such an eventuality, the provision under Section 376 is attracted. Even the Sessions Court, after considering all the above said facts and circumstances of the case, has rejected the bail petition. Therefore, the petitioner is not entitled to be enlarged on bail.
9. Having heard the arguments, I have carefully perused the complaint averments, which run to various pages and the complaint averment shows that the complainant was aged 27 years as on the date of lodging of the complaint and she is having mobile phones and she is also a gainful employee in a reputed company and in fact it is specifically stated since 2015 the relationship between the accused/petitioner and the complainant began and it is also specifically stated that she began her paid internship with Happy Creative Services in Indiranagar (‘HCS’ for short) from 01.10.2015 on probation. The accused was well-aware of this aspect and therefore, he managed to get himself assigned to HCS as a full time employee and thereafter, their relationship begun. It is specifically stated at Para-6 of the complaint that, since 2015, the accused became very close and romantic with the complainant and both of them commenced their physical relationship with each other. It is in so many words stated that they became very close to each other and they started behaving in an extraordinary manner with each other. Up to 2015, ie. precisely up to 18.11.2015 there was absolutely no grumble between them and they continued their physical relationship with all love and affections. But, on 18.11.2015 it is alleged that the accused asked the complainant for the anal intercourse as his birthday gift and the same was refused by the complainant and even in spite of her resistance, he had such intercourse with her, with force. But it never ended the relationship there itself. Further, the explanation given in the complaint was that, the relationship between them has been continued up to 09.01.2016 ie., for more than 2½ months and thereafter, the relationship was ended because of the violent behavior of the petitioner as alleged in the complaint. Though the said relationship was disrupted on 09.01.2016, there was no material available in the complaint as to why she was silent for all these years. Though it was argued that, she was undergoing vulnerable financial and social problems, but there is absolutely no such explanation available in the complaint that as to what prevented her from lodging any complaint against the petitioner at right point of time. Still there is no limit for lodging of the complaint, but in order to ascertain the conduct of the parties and their allegations against each other, the court has to look into such delay in lodging the complaint. Of course, the delay itself will not be sufficient to throw out the case of the prosecution, but that has to be tested whether the delay is deliberate or not and whether the complaint is filed with the active assistance of any other person/s in order to falsely implicate the accused, has to be thrashed out during the course of full dressed trial. Whatever it may be, the delay in fact has not been in detail explained in the complaint. Therefore, the reason for such delay has to be tested during the course of full- dressed trial after examining the victim. As rightly contended by the learned counsel for the petitioner, Section 67 of the IT Act is attracted, because the allegation is against one lady by name Kanchan Kumar, who has also made allegations that, the petitioner has raped her and so many other girls. But, no materials are placed by the prosecution to show that any other case has been registered against the petitioner in this regard.
10. Considering the above said narration of facts and also the subsequent conversation between the them, as the learned counsel brought to the notice of this court that the posting of material by the petitioner wherein he identified the relationship between himself and the complainant and incident that happened on the intervening night of 18/19.11.2015 and he apologies for the same. Though the learned counsel has drawn the attention of this court that the above forcible act of the accused has been admitted, but the entire material if it is accepted, he apologized for that and even after apology, no complaint has been lodged soon after the apology, but the complaint has been lodged after a long lapse of time ie., on 09.09.2019. Therefore, in the above facts and circumstances, the learned Sessions Judge has not at all considered the above said aspects. The aspect of consent or no consent so far as the above particular incident is concerned, has to be tested during the course of full dressed trial. The materials disclose that prior to and after the said alleged incident, the relationship whatsoever existed between the parties has been continued for a long time, therefore, the conduct of the parties has to be tested by means of evidence before the trial Court.
11. In the above said facts and circumstances of the case, it is clear that, the accused has already been arrested and he has been sent to judicial custody, which indicates that he is no more required for any further investigation, as the police after arrest requested the court to send him to judicial custody. Moreover, the offence under Section 376 and other offences are not punishable compulsorily either with the sentence of death or imprisonment for life. Therefore, in the above said circumstances, in my opinion, the petitioner has made- out a case for grant of bail, particularly under Section 439 of Cr.PC. with stringent conditions. The apprehension of the complainant that, ‘the petitioner/accused may tamper the prosecution witnesses’, can be controlled by means of imposing stringent conditions on him.
12. With the above said observations, I proceed to pass the following:
ORDER The petition is allowed. Consequently, the petitioner/accused-Shreyas Ganesh Pai shall be released on bail in connection with Crime No.209/2019 of Indiranagar Police Station registered against him for the offence punishable under Sections 323. 354, 354(A), 354(B), 376, 506, 509 of IPC and Section 67 of the I.T. Act, 2000, now pending before the Court of I Additional Chief Metropolitan Magistrate at Bengaluru, subject to the following conditions:
(i) The petitioner shall execute his personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like-sum to the satisfaction of the jurisdictional Court.
(ii) The petitioner shall not tamper the prosecution witnesses.
(iii) The petitioner shall appear before the jurisdictional Court on all future hearing dates unless exempted by the Court for any genuine cause.
(iv) The petitioner shall not leave the jurisdiction of the trial Court without prior permission, till the case registered against him is disposed of.
vi) The petitioner shall mark his attendance once in a week ie., every Sunday between 10.00 am and 5.00 p.m., till filing of the charge sheet or for a period of two months, whichever is earlier.
The petitioner is hereby directed not to post any incriminating articles or any material pertaining either against the complainant or about this case in the social media, pending disposal of this case against him.
Further, it is made clear that, if any conditions are violated, the State Government is at liberty to file application for cancellation of bail.
KGR* Sd/-
JUDGE