IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.5854/2018 BETWEEN:
Jayashankar, S/o. Sannegowda, Aged about 41 years, R/o. Thotahalli Village, Acalu Post, Saatanuru Hobli, Kanakapura Taluk, Ramanagara District – 562 126. ...Petitioner (By Sri. Nataraju T., Advocate) AND:
The State of Karnataka, By Kamakshipalya Police Station, Bengaluru City, Now represented by S.P.P., High Court Building, Bengaluru – 560 001. ... Respondent (By Smt. Namitha Mahesh. B.G., HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.255/2017 (SPL.C.No.593/2017) of Kamashipalya P.S., Bengaluru for the offence P/U/S 366A, 376 of IPC and Sec.4, 5(1), 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.P.C. to release him on bail in Spl.C.No.593/2017 on the file of LIV Additional City Civil and Sessions Judge, Sitting in the Child Friendly Court, Bengaluru Urban District in Crime No.255/2017 of Kamakshipalya Police Station, for the offences punishable under Sections 366 and 376 of IPC and also under Sections 4, 5(1) and 6 of Protection of Children from Sexual Offences Act, 2012 (herein after referred as Act for short).
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State.
3. The gist of the complaint is that the relative of the victim filed a missing complaint alleging that her daughter Nandini is missing from 07.06.2017 and on the basis of the missing complaint, the case has been registered and when the victim came to be examined, she revealed that on 06.08.2017 she called the accused and accused took her to his house and kept her in a rented premises and when she was staying there he had sexual intercourse with her. On the basis of the said statement, after investigation, chargesheet has been filed.
4. It is the submission of learned counsel for the petitioner that there is a delay of seven days in filing the complaint. He further submitted that the victim was aged sixteen and half years as on the date of the alleged incident. She was matured and the said act is consensual sexual act. He further submitted that the trial has not yet been commenced and even the medical reports also do not support the case of the prosecution. He also referred to the statement of the victim under Section 164 of Cr.P.C and submitted that she has stated that he may be convicted or that he should not be convicted that itself, clearly goes to show that voluntarily she came along with the petitioner/accused. The petitioner/accused is ready to abide by the conditions imposed by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner/accused on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that as on the date of the alleged incident, the victim was minor. The accused/petitioner, who was staying with the complainant was a relative of the complainant. He gave mobile to the victim girl and they both used to talk. Thereafter, induced her and took her to a rented house and sexually assaulted her. He further submitted that the petitioner/accused has involved in a serious offences and if he is released on bail, he may abscond and may not be available for trial. 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. Even on close reading of the chargesheet material which has been made available, it could be seen that earlier petitioner/accused was staying with the complainant and he also provided the mobile to the victim girl. Even the statement of the victim clearly goes to show that she used to talk with the accused. On 06.06.2017 in the morning hours, she went to Vinayaka School. From there, she went to coin booth and called the accused/petitioner. At that time, the accused/petitioner told her to come on next day and call him and he will come and pick her up. On 07.06.2017, in the morning, again without telling anybody in the house, she went to the coin booth near school and called the accused and accused came in a autorickshaw and took her to his house and there he had sexual intercourse with her. The victim girl was aged sixteen years, six months and three days as on the date of the alleged incident. That itself clearly goes to show that she was matured and she was knowing the wordly affairs. Even the statement of the victim girl, which has been recorded under Section 164 of Cr.P.C., clearly go to show that it is not the accused/petitioner, who took her and sexually assaulted her. Earlier to the alleged date of incident, i.e., on 06.06.2017 the accused told the victim girl to call him next day and again when she called him, the accused came and took her. The act of the victim clearly goes to show that it is nothing but consensual sexual act and though she was aged sixteen years six months, the attitude and conduct which is seen, she was knowing the wordly affairs. Under the said facts and circumstances, as already chargesheet has been filed, I feel that by imposing some stringent conditions, if the petitioner/accused in ordered to be released on bail, it is going to meet the ends of justice.
8. In the light of the discussions held by me above, the petition is allowed. Petitioner/accused is order to be released on bail in Spl.C.No.593/2017 on the file of LIV Additional City Civil and Sessions Judge, Sitting in the Child Friendly Court, Bengaluru Urban District in Crime No.255/2017 for the offences punishable under Sections 366 and 376 of IPC and also under Sections 4, 5(1) and 6 of Protection of Children from Sexual Offences Act, 2012 subject to the following conditions:
1. 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 tamper with the prosecution evidence directly or indirectly.
3. He shall regularly appear before the Court for trial.
4. He shall mark his attendance on first of every month till the trial is concluded.
5. He shall not leave the jurisdiction of the Court without prior permission.
sd/- JUDGE rv