IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B. CRIMINAL PETITION No.8834 OF 2017 BETWEEN V. MADHU S/O LATE VENKATESH AGED ABOUT 22 YEARS R/AT KONDOJI ROAD NEAR NEW R.T.O. OFFICE SPS NAGAR, NEW CAMP DAVANAGERE – 577 006 (BY SRI. JAGADEESHA H., ADV.,) AND THE STATE OF KARNATAKA BY CHANNAMMANAKERE ACHUKATTU POLICE STATION BENGALURU REPRESENTED BY THEIR PUBLIC PROSECUTOR HIGH COURT COMPLEX …PETITIONER BANGALORE – 560 001 …RESPONDENT (BY SRI. K.NAGESHWARAPPA, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.233/2017 OF CHANNAMMANAKERE ACHUKATTU POLICE STATION, BENGALURU AND IN SPL.C.NO.425/2017 PENDING ON THE FILE OF LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU FOR THE OFFENCE P/U/S 363 AND 376 OF IPC AND SEC.4 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the petitioner/accused under Section 439 of Cr.P.C. seeking his release on bail for the offences punishable under Sections 363, 376 of IPC and Section 4 of the POCSO Act registered in the respondent – police station in Crime No.233/2017.
2. Brief facts of the prosecution is; the father of the victim girl is the complainant in this case, wherein he has stated that his daughter was studying in II PUC. On 23.6.2017 evening at 7.00 p.m. there were exchange of words between the complainant and daughter in connection with that she is loving one Madhu, who is the petitioner herein, as the complainant came to know about the same from one Kavya & Deepa, who were the friends of victim girl. The further averments in the complaint goes to show that he has also advised his daughter and he was about to assault her in that connection and he told her if she is doing the same thing, she can go. Because of that reason and for which occasion the victim girl was waiting, took her clothes and Rs.5,000/- which was kept on the TV stand and she went out of the house. Even they chased, she was not available. Thereafterwards they searched for her and they have also informed the police that they are having suspicion as against Madhu, the petitioner herein. They also given particulars regarding identity of their daughter. After the victim girl was traced, her statement also recorded and the case was registered for the said offences.
3. Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned High Court Government Pleader appearing for the respondent-State.
4. Learned counsel for the petitioner made the submission looking to the statement of the victim girl given before the police as well as before the Court under Section 164 of Cr.P.C., that it will not make out a case of rape. He submitted that a false case has been booked against the present petitioner. It is also his submission that the prosecution material itself goes to show that there is love affair between the two, but regarding forcible sexual intercourse, there is no material. He submitted that now the investigation is completed and charge sheet is also filed, by imposing certain conditions petitioner may be admitted to regular bail.
5. Per contra, learned HCGP submits that the victim girl is a minor and looking to the prosecution material there is prima-facie case as against the present petitioner and committed forcible sexual intercourse on the victim girl, so also the kidnap of girl. Hence, the petitioner is not entitled for grant of bail.
6. I have perused the grounds urged in the bail petition, FIR and entire charge sheet materials produced by the learned HCGP.
7. Looking to the statement of the victim girl it goes to show that prima-facie at this stage she was loving the present petitioner. It was noticed by the parents and even the parents scolded her and because the father also made an attempt to assault her in that connection she herself left the house taking the clothes and Rs.5,000/-. The statement given before the Magistrate Court on oath clearly goes to show that when she wanted to go and join the present petitioner, petitioner himself advised not to come because still she is a minor. There is no specific allegation in her statement both before the police as well as magistrate Court that there is forcible sexual inter course by the present petitioner. In the absence of that and even if there is a sex as it is rightly submitted by the learned counsel for the petitioner that it is prima facie consent in nature, now the investigation is completed and charge sheet is also filed, petitioner has undertaken to abide by any conditions to be imposed by this Court. Considering the materials placed on record, it is a fit case to exercise discretion in favour of the petitioner.
8. Accordingly, petition is allowed. Petitioner/ accused is ordered to be released on bail for the offences punishable under Sections 363, 376 of IPC and Section 4 of the POCSO Act registered in the respondent – police station in Crime No.233/2017, subject to the following conditions:
i. Petitioner has to execute a personal bond for Rs.1,00,000/- and has to furnish one surety for the likesum to the satisfaction of the concerned Court.
ii. Petitioner shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii. Petitioner has to appear before the concerned Court regularly.
Sd/- JUDGE KLY/