IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE BUDIHAL R B CRL.P. No.5743 OF 2017 BETWEEN:
SRI. SYED ILLIYAS, S/O. SYED WAZEER, AGED ABOUT 39 YEARS, RESIDING AT NO.16, 4TH CROSS, AROGYAMMA LAYOUT, VENKATESHAPURA, ARABIC COLLEGE POST, BANGALORE-560 045. ... PETITIONER (BY SRI. VEERANNA G. TIGADI FOR SRI K.S. NARESH SANTHOSH, ADV.) AND:
STATE BY K.G. HALLI POLICE BENGALURU, REPRESENTED BY THE S P P, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDINGS, BANGALORE-560 064. ... RESPONDENT (BY SRI. CHETAN DESAI, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.335/2016 (SPL.C.C.NO.449/2016) KADUGODNANA HALLI POLICE STATION, BANGALORE CITY, WHICH IS REGISTERED FOR THE OFFENCE P/U/S 376 OF IPC AND SEC. 8, 9(m) AND 10 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This is the petition filed by the accused under Section 439 of the Cr.P.C. seeking his release on bail of the alleged offences punishable under Section 376 of the Indian Penal Code and Sections 8, 9(m) and 10 of the Protection of Children from Sexual Offences Act, 2012 registered in respondent police Station in Crime No.335/2016.
2. Heard the arguments of the learned counsel appearing for the petitioner - accused and also the learned High Court Government Pleader for the respondent side. Before taking this Court into the merits of the case the learned counsel for the petitioner made the submission that even earlier also the present petitioner approached this Court seeking his release on bail, but this Court vide its order dated 27.03.2017 passed in Crl.P.No.888/2017 rejected the said bail application. But however, learned counsel draw the attention of this Court to para No.6 of the said order and made the submission that liberty was given to the petitioner to approach the concerned trial court itself after recording the statement of CW.3 since she is a girl aged 17 years. Learned counsel made the submission that statement of the victim is also recorded during the course of the trial. The learned counsel fairly submitted that she has supported the prosecution case during the course of evidence. But however learned counsel made the submission that looking to the statement of the own sister of the victim girl who is CW.4 she has stated that when she enters into the house she has seen the present petitioner slept on the body of her sister. Learned counsel submitted that the further statement of CW.4 is important that at that time the victim girl told to her sister CW.4 that ‘nothing has happened, don’t disclose this before anybody’. Hence the learned counsel made the submission, that this itself clearly goes to show prima facie there may be a love affair between the two or even if it is assumed that there is a sexual intercourse, it is a consensual sex. He further made the submission that the mother of the petitioner is aged about 74 years and there is nobody to take care of the mother and even if the petitioner is released on bail, he can effectively contest the case of the prosecution. Hence the learned counsel made the submission that in view of the medical certificate dated 11.09.2017 it clearly goes to show the ailment of the mother of the petitioner. Hence he submitted by imposing reasonable conditions petitioner may be enlarged on bail.
3. Per contra, learned High Court Government Pleader made the submission that looking to the statement of the victim girl she clearly stated that there is a forcible sexual intercourse on her by the present petitioner. Even in her statement given before the Magistrate Court recorded under Section 164 of the Cr.P.C. also she clearly narrated about the sexual assault on her by the petitioner. Learned High Court Government Pleader also made the submission that even in the trial also the victim girl who has been examined as PW.1 supported the prosecution case. Hence he submitted when such a material is there before the Court and she being only 17 years of age, the offence alleged under Section 376 is a serious offence and hence the petitioner is not entitled to be granted with bail.
4. I have perused the grounds urged in the bail petition, FIR, complaint and the entire materials produced by the petitioner along with the petition, so also the medical records and the medical certificate in respect of the mother of the petitioner produced by the learned counsel for the petitioner. Looking to the statement of the victim girl recorded under Section 164 of the Cr.P.C. she clearly stated on oath that there is sexual assault by the present petitioner. So also the statement of CW.4, the own sister who is aged 10 years also goes to show that she has personally seen the present petitioner who slept on the body of the victim girl. No doubt true looking to the other contents of the statement of CW.4 wherein she has stated that the sister who is the victim girl told CW.4 that ‘nothing has happened’, but it may be to protect the honor and dignity of the family she might have at that stage stated so, but only on that basis it cannot be said at this stage that the entire other materials of the prosecution are to be ignored by the Court. The earlier bail application also rejected by the Court. However, with liberty that after the evidence of victim girl is recorded before the concerned trial court, the petitioner can approach the learned Sessions Judge again. But now the evidence of PW.1, the victim girl is recorded, wherein also she has supported the prosecution case. Therefore, looking to these materials I am of the opinion that prosecution has made out a prima facie case as against the present petitioner of his involvement in committing the alleged offence. Therefore, the petitioner is not entitled to be granted with bail.
5. However, it is the contention that since from the date of arrest the petitioner is in custody. There is no other persons in the family to take care of the mother of the present petitioner and in that regard a certificate is also produced by the petitioner. In view of the same the concerned Sessions Judge is hereby directed to take up the matter on priority basis and to dispose of the same as early as possible, but not later than four months from the date of receipt of a copy of this order.
The High Court registry is directed to send a copy of this order immediately to the concerned Sessions Court.
Sd/- JUDGE ykl