IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MAY 2019 BEFORE THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL PETITION No. 9763 OF 2018 BETWEEN:
ZABIULLA @ ZABI AGED 29 YEARS R/AT. 2ND CROSS, NEAR A.M.SCHOOL HYDERI MOHALLA MULBAGAL – 563131 KOLAR DISTRICT (BY SRI HASHMATH PASHA, SR.COUNSEL FOR SRI RANJANKUMAR P, ADVOCATE) AND:
…PETITIONER STATE OF KARNATAKA REPRESENTED BY PSI, KOLAR WOMEN POLICE STATION, GANDHI CHOWK KOLAR – 563101 …RESPONDENT (BY SRI NASRULLAKHAN, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME NO.10/2018 (S.C.NO.194/2018) OF KOLAR WOMEN P.S., KOLAR FOR THE OFFENCE P/U/S 376, 506 OF IPC, SECTION 6 OF POCSO ACT AND SECTION 9 OF PROHIBITION OF CHILD MARRIAGE ACT.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned senior counsel for the petitioner and the learned High Court Government Pleader on the petition.
2. Despite granting sufficient opportunity since March 2019, the prosecution has not filed its statement of objection to the petition.
3. Learned senior counsel submits that the accused is innocent of the alleged offence and only to cause trouble to him, a false case has been filed against him. He seriously disputes the alleged minority of the victim and says that there is no evidence of any sort to show that the alleged victim was minor as on the date of the alleged offence.
4. Per contra, learned High Court Government Pleader submits that prima facie a clear case is made out against the accused/petitioner who has committed repeated sexual assault on the victim girl. As such, accused does not deserve to be enlarged on bail.
5. The allegation against the petitioner is that he promising to marry a minor girl, had repeatedly enjoyed the sexual relationship with her for about nearly two years. It is thereafter, the said minor girl was married to the accused, but after his marriage with the said girl and leading marital life for a short duration and after she conceived, abandoned her. As such, the offences punishable under Sections 376 and 506 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 and under Section 9 of the Prohibition of Child Marriage Act, 2006, are alleged against the petitioner.
6. A cursory look at the material placed before this Court at this stage go to show that the very age of the victim girl is disputed by the accused when the victim girl is said to have cohabited with the accused for about two years and it is alleged that during the said period, they had repeated sexual relationship intercourse and thereafter, when it is alleged that the said girl was married by the accused himself. These alleged facts go to show that the matter requires a detailed probe and a mere allegation that she was a minor as on the date of the incident and was subjected to sexual assault also requires a detailed probe and analysis. The accused is said to be in judicial custody for more than nine months and it is submitted by the learned counsel that his dependents are suffering a lot due to the accused being in judicial custody. Considering the facts of the case and allegation leveled against the accused, I am of the view that in the circumstances of the case, as could be gathered at this stage, the petitioner be enlarged on bail. The apprehension of the prosecution that the accused may flee from justice can be checked by imposing reasonable conditions. Accordingly, I proceed to pass the following:
ORDER The petition is allowed. The petitioner be enlarged on bail in Crime No.10 of 2018 of Kolar Women Police Station, subject to the following conditions:
i) That the petitioner shall execute a personal bond of `1,00,000/- (Rupees One Lakh only) with two sureties, with proof of their address and to the satisfaction of the enlarging Court.
ii) The petitioner to give in writing about the change in their address, if any, to the Investigating Officer as and when such change occurs and obtain acknowledgement in that regard.
iii) He shall appear before the Court on all the dates of hearing.
iv) He shall not hamper or tamper the prosecution witnesses and documents in any manner.
Sd/-
JUDGE bnv