IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.6240/2018 BETWEEN:
Sri. Thoufizulla, S/o. B.K.Jasiulla, Aged about 28 years, R/at No. 743, Muslim Street, Bandahalli, Kollegal Taluk, Chamarajanagar-571 439. ... Petitioner (By Sri.Ravindra.D.K, Adv., for Sri.R.Kothwal, Adv.,) AND:
The State of Karnataka, By Hebbagodi Police Station, Bengaluru-560 099.
Rep. by its State Public Prosecutor, High Court of Karnataka, Bengaluru-560 001. ... Respondent (By Sri.M.Divakar Maddur, HCGP) This Criminal Petition is filed u/s.438 of Cr.P.C., praying to enlarge the petitioner on bail in the event of his arrest in Cr.No.508/2017 of Hebbagodi P.S., Bengaluru District for the offence p/u/s 376, 420 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 the petitioner/accused No.1 under Section 438 of Cr.P.C. praying this Court to release him on anticipatory bail in the event of his arrest in Crime No.508/2017 of Hebbagodi Police Station for the offences punishable under Sections 376 and 420 of IPC.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. Gist of the complaint is that the victim filed a complaint alleging that when she was studying in PUC, the accused being the neighbor, became her friend. Subsequently, he expressed that he is loving her when she refused her, he assured to marry her. By believing the words of accused, they started loving each other for more than nine years. It is further stated that accused used to drop her to the working place and they were working together in BPO company and also eight months back, accused informed the complainant that his friend-Prajwal and his wife have decided to visit Pondicherry and he invited her to join. Believing the words of the accused that his friend and his wife were also going to Pondicherry, the complainant was agreed to join and on 17.02.2017, they went to Pondicherry in a car bearing registration No.KA-53-M-8666 to Pondicherry. On 18.02.2017 and 19.02.2017, when they were in the lodge, accused forcibly raped her in spite of her resistance. It is further stated that the accused was expressing his desire to marry her and on the said assurance, he had a physical contact with her many times. Subsequently, when she forced him to intimate his family members about their marriage, on 23.09.2017, he took her to sub-registrar office and had given necessary documents. The said office asked them to visit after 30 days. Accordingly, on 26.10.2017, the complainant visited the said office and waited for the accused, but he did not turn up. Though she attempted to talk over phone, his phone became switched off. On the basis of the complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioner that the complainant and the petitioner/accused were friends and they were working together and they started loving each other and whatever the physical contact was there, it is a mutual consensual sex and there was no force and the complainant herself has voluntarily come along with the petitioner. It is further submitted that the petitioner/accused had a sex with consent. Under such circumstance, it will not amounting to rape. In order to substantiate his argument, he relied upon the decision in the case of Dr. Dhruvaram Murlidhar Sonar v.
State of Maharashtra and Others reported in 2018 SCC Online SC 3100. It is further submitted that in case of consensual sex this Court has also released the petitioner/accused on bail. He is ready to abide by the conditions imposed on him by this Court and ready to offer surety. On these grounds, he prayed to allow the petition.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the petitioner/accused has been falsely compromising the victim and had the sexual act and thereafter, he has refused to marry her that itself clearly go to show that it was not a consensual sex. Only under the pretence of marriage, he had a sex. The alleged offence is a serious one, the petitioner is absconding and not available for investigation or interrogation. No discretionary power has to be exercised to release the petitioner on bail. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
7. On close reading of the contents of the complaint and other materials, it indicates that they were moving together and they were working together. But when the accused has taken her to Pondicherry, there when he had a sex, the said sex appears to be not a consensual one and under the pretence of marriage, he had a sex. Be that as it may. The petitioner/accused has approached this Court under Section 438 of Cr.P.C., to release the petitioner on bail. Under such circumstance, I feel that it is not a fit case to exercise the discretionary power under Section 438 of Cr.P.C., to release him on bail. Under the said fact and circumstance, the petition stands dismissed. Liberty is given to the petitioner/accused to approach the Court below or this Court under Section 439 of Cr.P.C., the above observation will not come in the way to decide the case on merits.
VBS Sd/- JUDGE