IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION No.8585/2018 BETWEEN:
Syed Hussain Ali S/o Syed Pasha Aged about 25 years No.59, Opp Idga Maidan Ramasandra Main road Chikkabasti, Bengaluru-56.
(By Sri V. Srinivas, Advocate) AND:
State by Jnanabharathi PS Represented by State Public Prosecutor High Court of Karnataka Bangalore-560 001.
… Petitioner … 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.294/2018 of Jnanabharathi Police Station, Bangalore City for the offences punishable under Sections 354 and 376 of Indian Penal Code and Sections 3, 4, 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 Crime No.294/2018 of Jnanabharathi Police Station, Bangalore City, for the offences punishable under Sections 354 and 376 of IPC and Sections 3, 4 and 6 of POCSO Act.
2. I have heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. The gist of the complaint is that, the mother of the victim filed a complaint alleging that she has a daughter by name Nagma Sultana, studying at Pavithra Vidya Mandira and they were tenants under the father of the petitioner/accused and petitioner used to roam around and used to telephonically call her daughter and proposed her stating that he is in love with her and when her daughter refused, he pressurized her by stating that he would take good care and it is alleged that they used to roam around and used to go to the hotel. Hence, for the safety of her daughter they have vacated the house.
It is further alleged that he used to meet her and about two months’ back when nobody was present in the house, the petitioner has entered into the house and sexually assaulted the victim girl under the impression that he would marry her. The same was disclosed to the parents and subsequently even though she refused, again he sexually assaulted her and on the basis of the complaint, a case has been registered.
4. It is submitted by the learned counsel for the petitioner that the petitioner/accused and the victim girl used to love and move around and earlier on 2.10.2018 a complaint was given by the victim to the Jnanabharathi Police Station requesting to help her and direct the accused to marry her with his permission. He further submitted that subsequently the police called the victim as well as the accused and they have decided to discuss the matter in Masjid and as the matter was taken to the Masjid, they did not agree for the marriage and as such the present false complaint has been registered. He further submitted that the medical report also clearly indicate that except the hymen all other organs of the victim are intact. He further submitted that already charge sheet has been filed and petitioner/accused is not required for the purpose of further investigation or interrogation.
5. By relying upon the decision in the case of Bhyrava Vs. The State of Karnataka by the Police of Periyapatna Police Station, Mysore, in Criminal Petition No.1515/2014 dated 21.4.2014 he submitted that under similar facts and circumstances the accused has been released on bail and as such the petitioner is also entitled to be released on bail. He further submitted that he is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition.
6. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the medical reports clearly goes to show that the petitioner/accused has sexually assaulted the victim, who is a minor. She further submitted that the statement of the victim has been recorded under Section 164 of the Cr.P.C. by the learned Magistrate and even in her statement she has clearly stated that the accused has sexually assaulted her. She further submitted that if the petitioner/accused is enlarged on bail, he may tamper with the prosecution evidence and he may not be available for the trial. On these grounds, she prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and I have also perused the records and the charge sheet material.
8. It is the case of the prosecution that when the victim was present in the house, accused entered and sexually assaulted her and at that time the victim has not communicated or informed her parents about the incident.
Subsequently also the accused entered the house and sexually assaulted her. But, as could be seen from the records, before filing the complaint on 2.10.2018, the victim has filed a complaint before Jnanabharathi Police Station wherein the victim as well as the accused were called and their statement was recorded and the matter was settled and decided to discuss the matter in the Masjid and accordingly, the said complaint has been closed. Even the records show that, the petitioner and the victim girl are also known to each other and they used to move around. Even earlier to the alleged incident she went along with the petitioner/accused and she had physical contact with him and she has not disclosed the said fact. But, the statement of the victim recorded under Section 164 of Cr.P.C. discloses the fact that she has been sexually assaulted when she was in the house. But the medical records which have been produced indicate the fact that the other organs were intact except the hymen. FSL report has also not been produced in order to substantiate the said fact.
9. On going through the said records and the materials, I am of the considered opinion that though there is sexual assault said to have been committed on the victim, it appears that it is a consensual sexual assault and can aware of the fact that the victim is a minor she cannot give the consent, but however, the age of the victim is more than 16 years. Under such circumstances, she is having the fair knowledge and acquaintance in this behalf. Therefore, under the above said facts and circumstances, I feel, if by imposing some stringent conditions and by taking adequate security, if the petitioner is enlarged on bail, it is going to meet the ends of justice.
10. In the light of the discussions held by me above, the petition is allowed, and the petitioner/accused is ordered to be released on bail in Crime No.294/2018 of Jnanabharathi Police Station, Bengaluru City, for the offence punishable under Sections 354 and 376 of IPC and Sections 3, 4 and 6 of POCSO Act, subject to the following conditions:
i) Petitioner 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..
ii) He shall not tamper with the prosecution evidence in any manner till the disposal of the case.
iii) He shall appear before the Court below on all dates of hearing.
iv) He shall not leave the jurisdiction of the trial Court without prior permission of the Court.
v) If he threatens any of the witnesses or the victim, then under such circumstances the police is having every right to move the Court for cancellation of bail.
*AP/-
Sd/- JUDGE