IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.382/2019 BETWEEN:
Vishal Makannawar S/o Jinappa Makannawar, Aged about 24 years, R/at Boys Hostel, Rajarajeswari Medical College, Mysuru Road, Bengaluru – 560 085. ...Petitioner (By Sri Praveen Kumar Raikote, Advocate) AND:
1. The State of Karnataka, Through the Police Inspector, Bidadi Police Station, Bidadi, Ramanagara District. (Earlier Kumbalgod P.S.) 2. Kum. Deepti Gupta D/o Narendra Gupta, Aged about 23 years, No.255, 63/1, Near Srinidhi Delux Hotel, Anchepalya, Mysore Road, Bengaluru-560 092. ... Respondents (By Smt. Namitha Mahesh, B.G., HCGP for R1 Sri. B. Lathif, Advocate for R2) This Criminal Petition is filed under Section 438 of Cr.P.C., praying to enlarge the petitioner on bail in the event of his arrest in Cr.No.383/2018 (Crl.Misc.No.658/2018) of Bidadi Police Station, Ramanagara for the offence p/u/s 376, 420 and 506 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 under Section 438 of Cr.P.C to release him on bail in Cr.No.383/2018 of Bidadi Police Station, Ramanagara District for the offences punishable under Sections 376, 420 and 506 of IPC.
2. I have heard the learned counsel for the petitioner, the learned High Court Government Pleader for the respondent-State and the learned counsel for respondent No.2.
3. The gist of the complaint is that the complainant/victim is from Delhi and she was pursuing her studies in MBBS at Rajarajeswari Medical College, Bengaluru. Petitioner/accused was also pursuing his studies in the same College and gradually developed intimacy with the complainant/victim. Thereafter, the petitioner/accused pressurized her to attend his birthday celebrations on 06.02.2017 and also on 11.03.2017, the accused met the victim and wished on her birthday and requested her that they can celebrate such birthday outside.
4. It is further alleged that on 23.04.2017, the petitioner/accused took her to Sri Sai Residency and there he promised her to marry and had a physical contact with her against her wish. It is further alleged that thereafter, under the pretext of marriage many a times, he had physical contact with her. Subsequently, she requested him to marry her, but he threatened her to do-away with her life and cheated her. On the basis of the compliant, a case came to be registered.
5. It is the submission of the learned counsel for the petitioner that the petitioner/accused is pursuing his final year MBBS and he is innocent. Petitioner/accused used to coach the victim and they were moving together. No such incident has taken place as alleged by the complainant, He further submitted that only in order to plant the evidence, the complainant had collected the bills from various places and even though she made the payment, she had collected the bills in the name of the petitioner/accused.
6. He further submitted that the petitioner/accused is a brilliant MBBS student and he was doing his internship. The case of the accused is that now he is not in a position to continue his studies. He further submitted that the contents of the compliant clearly goes to show that since more than 1 year 8 months, they were moving together and many a times they had physical contact and nowhere it has been resisted and also no compliant has been registered in this behalf. Thus, it clearly goes to show that it is a consensual sex.
7. He further submitted that the petitioner/accused and the victim were studying in MBBS that they were also knowing the consequences of having physical contact with consent. It is further submitted that the petitioner/accused is ready to abide by the conditions imposed by this Court and also ready to offer surety to the satisfaction of this Court.
8. He further submitted that if there is any consensual sex, it does not amounts to rape as held in the decision of the Hon’ble Supreme Court in the case of Dr.Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra & Ors in Criminal Appeal No.1443/2018. On these grounds, he prays to allow the petition and to release the petitioner/accused on bail.
9. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the petitioner/accused was studying in final year MBBS and the victim was in 1st year MBBS and even when the petitioner/accused came in contact with the victim, under the premise of false promise he had physical contact with her though she was reluctant and refused to have physical contact. She further submitted that even though the accused had promised, he has not kept-up the same by refusing to marry her and as such, the complaint was registered. She further submitted that since inception he was not intending to marry and falsely telling he cheated the victim.
10. She further submitted that there was no consent as contended by the learned counsel for the petitioner to have a physical contact and it is also not a consensual sex. She further submitted that the medical records also corroborate with the version of the victim to show that the petitioner/accused has sexually assaulted the victim girl. She further submitted that from inception under the pretext of false promise, if physical contact is there and subsequently, if the petitioner/accused refused to marry, that itself amounts to rape as contemplated under Sections 375 and 376 of IPC. The accused/petitioner is absconding and he is not available for the purpose of investigation or interrogation, but he has approached this Court seeking grant of anticipatory bail. Hence, the discretionary power of this Court cannot be exercised on such persons. On these grounds, she prays to dismiss the petition.
11. In order to substantiate her submission, learned HCGP has relied upon the decision of the Hon’ble Supreme Court in the case of Anurag Soni Vs.
State of Chhattisgarh reported in 2019 0 Supreme (SC) 445.
12. I have carefully and cautiously gone through the submissions of both the learned counsel appearing for the parties and perused the records.
13. Before going to consider the submissions which have been made from the Bar, I want to place on record that in recent days, such incidences are in increased rate and the said type of offences are menace against the society. It is observed in many catena of decisions of Hon’ble Apex Court as well as this Court that whenever the innocent victim is sexually assaulted, then under such circumstances, it not only leads to physical assault, but also mentally and even her privacy is affected as contemplated under Article 21 of the Constitution of India. It is also noticed that when once such physical contact has been made under the false promise, it degrades and defaces the soul of the helpless victim and it also reduces the strength of the said victim in the Society. The victim would be the ultimate sufferer in the Society. In order to prevent such type of activities and harassments, the Court has to take into consideration all the facts and circumstances of the case together then come to the conclusion, whether there is any false complaint or there is any materials to show that with a false promise, the physical contact has been made by the petitioner/accused.
14. With the above observations, let me consider the facts and circumstances of the case on hand. It is the specific contention of the learned counsel for the petitioner/accused that since 1 year 8 months they were in physical contact and it is the consensual sex, but it is the specific averment made in the complainant by the victim that in the pretext of false promise, the petitioner/accused took her to various places and had physical contact and when she requested him to marry, he refused. In that context, the said act of the petitioner/accused amounts to rape under sections 375 and 376 of IPC as held in the decision quoted supra i.e., in the case of Anurag Soni Vs. State of Chhattisgarh wherein it has been observed that in the pretext of false compromise to marry, if the physical contact has been developed and subsequently, if the accused/petitioner refused to marry, then under such circumstances, the provisions of Section 375 and 376 of IPC are attracted and it amounts to rape.
15. In the light of the discussion made by this Court above, though it is argued that it is a consensual sex, nothing has been substantiated to show that it is a consensual sex. Though both petitioner/accused and victim were pursuing medical studies, it does not mean that they were having a consensual sex, when the victim is studying in the 1st year MBBS and the accused was in the final year MBBS and even the complaint also clearly goes to show that he pressurized her to attend the birthday party celebrations and took her outside and further, with the pretext of false promise, he had sexually assaulted her.
16. There is ample materials to show the conduct of the accused/petitioner which establishes the alleged crime. Be that as it may, the petitioner/accused is not available for the purpose of investigation or interrogation, that itself shows that his submissions are not fair and he has not assisted the investigation.
Under such circumstances, it is not a fit case to exercise the power under Section 438 of Cr.P.C to release the accused on anticipatory bail. In the light of the observations, the petitioner has not made out any case. Hence, petition stands dismissed.
PYR Sd/- JUDGE