IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV CRIMINAL PETITION No.3937/2019 BETWEEN:
Suresh Kumar @ Suresh Jain, S/o Babulal, Aged about 50 years, R/o No.5, Bangiyappa Garden, 1st Cross, Lakshmi Road, Shanti Nagar, Bengaluru – 560 027. ... Petitioner (By Sri Bharath Kumar V., Advocate) AND:
State of Karnataka, Through Station House Officer, Viveknagar Police Station, Bengaluru – 560 085, Represented by Sessions Public Prosecutor, Hon’ble Principal Sessions Court, Bengaluru – 560 001. ... Respondent (By Sri K.P. Yoganna, HCGP) This Criminal Petition is filed under Section 438 of the Criminal Procedure Code, praying to enlarge the petitioner on bail in the event of his arrest in Crime No.63/2019 registered by Viveknagar Police Station, Bengaluru for the offences p/u/s 376, 342, 417, 504 and 506 of IPC.
This Criminal Petition coming on for Orders this day, the Court made the following:
ORDER The complainant’s counsel files an application under Section 301 (2) r/w 482 of Cr.P.C., to permit her to assist the prosecution through her counsel Sri. Manjunath H.R.
For the reasons stated in the application accompanying memorandum of facts, the application is allowed and Sri.Manjunath H.R. is permitted to assist the prosecution.
2. The petitioner is seeking to be enlarged on bail in the event of his arrest pursuant to the proceedings in Crime No.63/2019 for the offences under Sections 376, 342, 417, 504 and 506 of IPC.
3. The case of the prosecution is that the complainant who is stated to be a permanent resident of Bombay was employed as waitress in Bengaluru. It is further stated that the petitioner had met the complainant at her work place and established contact with her. It is stated that the complainant was promised by the petitioner that he will marry her and that she had conceived through him. It is further stated that she had conceived on 2 to 3 times previously and at the instance of the petitioner, she terminated her pregnancy. The complainant further states that the petitioner despite such promise has not married her and was harassing her. The FIR has been lodged and investigation is under progress.
4. The learned counsel for petitioner points out that the victim is aged about 25 years and there was previous complaint to the Sub-inspector of Police, Viveknagar Police Station lodged on 06.04.2019 by the complainant, wherein she describes the petitioner as her husband and states that they have been married for about 3 ½ years back. Hence, it is contended that admittedly the petitioner and the complainant were persons who had attained majority and there was consensual relationship even as per the version of the complainant and hence, contends that proof of offence being a matter for trial, custodial interrogation as such is not required.
5. The learned HCGP opposes grant of bail and contends that the complainant has been subjected to harassment and the allegations made are grievous and custodial interrogation is required. He further submits that a complaint has been lodged by the complainant stating that certain persons had threatened her to withdraw the complaint filed against the petitioner on 24.06.2019.
6. Looking into the facts and material on record, it is not in dispute that the complainant is aged about 25 years, the previous compliant filed by the complainant on 06.04.2019 describes the relationship of petitioner and the complainant as that of husband and wife. The question of proof of offence is a matter for trial. The records sought for by the investigating agency in the form of medical records are materials that can be procured even without custodial interrogation of the petitioner. Looking into the version of the complainant and the earlier complaint filed by the petitioner, prima-facie there is some force in the contention of the petitioner that even if the story of the prosecution is to be accepted, apparently there was an element of consent. However, it would not be appropriate at this stage to express any opinion with regard to nature of relationship between the petitioner and the complainant. Taking note of the above observations in the facts of the case, case is made out for enlarging the petitioner on anticipatory bail.
7. In the result, the bail petition filed by the petitioner under Section 438 of Cr.P.C., is allowed and the petitioner is enlarged on bail in the event of his arrest in Crime No.63/2019 for the offences under Sections 376, 342, 417, 504 and 506 of IPC, subject to the following conditions:
(i) The petitioner shall appear in person before the Investigating Officer in connection with Crime No.63/2019 within 15 days from the date of release of the order and shall execute a personal bond for a sum of `1,00,000/- (Rupees One Lakh only) with a surety for the likesum to the satisfaction of the Investigating Officer.
(ii) The petitioner shall not tamper with evidence, influence in any way, any witness.
(iii) The petitioner shall physically present himself and mark his attendance before the concerned Station House Officer once in a week between 10.00 a.m. and 5.00 p.m., till filing of the final report.
(iv) In the event of change of address, the petitioner to inform the same to the concerned SHO.
(v) The petitioner to subject himself to medical investigation as and when he is called upon to do so by the Investigating officer as may be required for the purpose of investigation.
(vi) The petitioner shall not go near the residence of the victim or near her work place.
(vii) Any violation of the aforementioned conditions by the petitioner, shall result in cancellation of bail.
Any observation made herein shall not be taken as an expression of opinion on the merits of the case.
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JUDGE