Karnataka High Court
Mahammadgous S/O Mahammad Siraj Aka ... vs The State And Anr on 25 August, 2022
Author: P.N.Desai
Bench: P.N.Desai
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.200733/2022
BETWEEN:
MAHAMMADGOUS S/O MAHAMMAD SIRAJ
AKA SIRAJ WALIKAR
AGE: 26 YEARS OCC: FABRICATOR
R/O: NEAR OLD KARNATAKA BANK, ALMEL
TQ: SINDAGI DIST: VIJAYAPURA-586 202.
...PETITIONER
(BY SRI. S. B. SANGOLAGI, ADVOCATE)
AND:
01. THE STATE THROUGH
INDI POLICE STATION
DIST: VIJAYAPURA
(REPRESENTING BY LEARNED ADDL. SPP
HIGH COURT, KALABURAGI-585 105)
02. HANAMANTRAYA BIRADAR S/O
DUNDAPPA BIRADAR
AGE: 48 YEARS OCC: AGRICULTURE
R/O: GUNDAGI, TQ: SINDAGI
DIST: VIJAYAPURA-586 128.
...RESPONDENTS
(BY SRI. GURURAJ V. HASILKAR, HCGP FOR R1
RESPONDENT NO.2 IS SERVED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO ALLOW
THE PETITION AND BE PLEASED TO ENLARGE THE PETITIONER
ON REGULAR BAIL IN CRIME NO.72/2021 OF INDI TOWN P.S.
TQ: INDI, DIST: VIJAYAPURA AND CASE IS PENDING ON THE
FILE OF ADDL. SESSIONS JUDGE FAST TRACK SPECIAL COURT-I
(POCSO) AT VIJAYAPURA IN SPL.CASE POCSO NO.42/2021, FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 120(B), 212,
363, 366, 366(A), 376(2)(n) and 344 read with Section 149 OF
IPC AND SECTIONS 4, 6 OF POCSO ACT, 2012 AND SECTIONS 9,
10 AND 11 OF PROHIBITION OF CHILD MARRIAGE ACT.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT PASSED THE FOLLOWING:
2
ORDER
This petition is filed under Section 439 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short), seeking to enlarge the petitioner, who is arraigned as accused No.1, on bail in Crime No.72/2021 of Indi Town Police Station, registered for the offences punishable under Sections 120 (B), 212, 363, 366, 366(A), 376(2) (n) and 344 read with Section 149 of Indian Penal Code ('IPC' for short) and under Sections 4 and 6 of Protection of Children from Sexual Offences (POCSO) Act, 2012 and Sections 9, 10 and 11 of Prohibition of Child Marriage Act, on the file of the Addl. Sessions Judge Fast Track Special Court-I (POCSO) at Vijayapura in Spl.Case POCSO No.42/2021.
02. It is the case of the prosecution that the complainant who is the first informant by name Hanamantayya has lodged the complaint before the Indi Police Station. It is alleged in the complaint that the victim is his daughter. On 22.07.2021 she went to examination centre for 10th class examination at Indi and complainant 3 was waiting outside of examination centre. But he could not found his daughter after the examination when he searched for her. Therefore, he has filed a missing complaint on 02.08.2021. The police have registered the case and conducted the investigation. The police after the investigation have filed the charge sheet against 18 accused persons. It is alleged that accused No.1 instigated the victim to love him and kidnapped her from the school compound and took her to his relatives' house. It is alleged that knowing full well that the victim is minor and accused No.1 has physical relation with her. Therefore, the police have filed the charge sheet against totally 18 accused. It is stated that except this petitioner all other accused are on bail. The petitioner is arrested on 12.09.2021. His bail petition came to be rejected by the Sessions Court. Hence, the petitioner has filed this petition.
03. Heard Sri. S. B. Sangolagi, the learned counsel for the petitioner and Sri. Guururaj V. Hasilkar, the learned High Court Government Pleader for the respondent - State. 4
04. The learned counsel for the petitioner argued that the petitioner is innocent and he has been falsely implicated in this case. There is no medical evidence about the offence alleged. Even in the statement under Section 164 of Cr.P.C. the victim has not stated anything about any forcible sexual intercourse by the petitioner. The age of the victim is shown as 17. Actually she has already attained the age of majority. There is no material to show that the petitioner kidnapped the victim against her will from the possession of her parents. The investigation is already completed and charge sheet is also filed. The petitioner is in judicial custody from nearly 01 year. The petitioner is ready to abide by any conditions that may be imposed by this Court and ready to offer surety. Hence, the learned counsel for the petitioner prays to allow the petition.
05. Against this, the learned High Court Government Pleader argued that the alleged offences are heinous in nature. Knowing well the victim is minor, the petitioner has married her and committed sexual intercourse on her. If he is released on bail he may 5 threaten the prosecution witnesses, he may abscond and tamper with the prosecution witnesses. The investigation is completed and charge sheet is already filed. Hence, the learned High Court Government Pleader prays to reject the petition.
06. I have perused the statement of the victim before the police on 29.09.2021 and also her statement before the Magistrate under Section 164 of Cr.P.C. wherein she has stated that her age is 17 years and she has not at all stated anything about sexual intercourse committed by the petitioner on her against her will or she has stated anything implicating the petitioner in this case. The only allegation is that she was forcibly married. Except that there is no other allegation. The medical report also does not show regarding sexual intercourse. The investigation is already completed. The petitioner is in judicial custody from 21.09.2021.
07. It is settled principle of law that bail is a rule and rejection is an exception. While granting or rejecting the bail, the Court will have to take into consideration, 6 (1) the nature and seriousness of the offence;
(2) character of the accused;
(3) circumstances which are peculiar to accused;
(4) reasonable probabilities of presence of the accused not being secured at trial;
(5) reasonable apprehension of witnesses being tampered with; and (6) larger interest of public or the state and similar other considerations, which arise when a Court is asked to admit the accused to bail in a non-bailable offence.
08. So, in the light of these principles if the allegations against the petitioner, the charge sheet materials, statement of witnesses are considered and as other accused already released on bail, in my considered view the petitioner is also entitled to be enlarged on bail.
09. The apprehension of the prosecution can be meted out by imposing reasonable conditions on the petitioner, as he has undertaken to co-operate with the investigation and furnish sureties. Accordingly, I proceed to pass the following:
7
ORDER The criminal petition filed under Section 439 of Cr.P.C. is allowed.
The petitioner - accused No.1 Mahammadgous s/o Mahammad Siraj Aka Siraj Walikar, in Crime No.72/2021 of Indi Town Police Station, on the file of the Additional Sessions Judge Fast Track Special Court-I (POCSO) at Vijayapura in Spl.Case POCSO No.42/2021, registered for the offences punishable under Sections 120 (B), 212, 363, 366, 366(A), 376(2)(n) and 344 read with Section 149 of IPC and Sections 4 and 6 of POCSO Act, 2012 and Sections 9, 10 and 11 of Prohibition of Child Marriage Act, shall be released on bail, subject to the following conditions.
i) The petitioner shall execute a self-bond for Rs.1,00,000/- with a surety, for the like sum to the satisfaction of the Trial Court or Committal Court where the case is now pending.
ii) The petitioner shall not try to tamper the prosecution witnesses directly or indirectly.8
iii) The petitioner shall not involve in any criminal activities and shall not commit similar offences.
iv) The petitioner shall furnish proof of his
residential correct address to the
investigating officer and shall inform the Court/Investigating Officer if there is any change in the address.
v) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of Trial Court.
vi) The petitioner shall appear before the Court on all dates of hearing without fail as and when directed.
In case if any of the condition is violated, the prosecution is at liberty to move application for cancellation of bail.
Sd/-
JUDGE KJJ