Karnataka High Court
Mohammed Rafiq Saikalgar vs The State Of Karnataka on 1 October, 2020
Equivalent citations: AIRONLINE 2020 KAR 2071
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1 S T DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO.101069 OF 2020
BETWEEN
1. MOHAMMED RAFIQ SAIKALGAR
S/O IBRAHIM SAHEB SAIKALGAR,
AGE: 57 YEARS, OCC: LABOUR,
R/O: PLOT NO.T2, 3RD FLOOR,
VINAYAK APARTMENTS, UPPER BAZAAR,
PANDITHWADA, PONDA,
NORTH GOA, GOA-403401.
2. KHALEEL AHAMED SAIKALGAR
S/O IBRAHIM SAB
AGE: 50 YEARS, OCC: LABOUR,
R/O: T.T. ROAD, RATTIHALLI,
TQ: HAVERI DISTRICT.
3. JAHIR @ ZAHIRUDDIN SAIKALGAR
S/O IBRAHIM SAHEB SAIKALGAR,
AGE: 41 YEARS, OCC: BUSINESS,
#15/1, 2ND FLOOR, 2ND MAIN,
GORRAPANA PALYA, TAVARAKERE MAIN ROAD,
NEW WISDOM SCHOOL, DHARMARAMA COLLEGE,
BENGALURU-560029.
4. ZABIULLA PATIL S/O MAQBOOLSAB PATIL
AGE: 34 YEARS, OCC: BUSINESS,
R/O: BLACK A3, DULER BARDEZ,
MAPUSA, NORTH GOA, GOA-403507.
5. SAMIULLA PATIL S/O MAQBOOL SAB PATIL
AGE: 32 YEARS, OCC: BUSINESS,
2
R/O: VILLA NO.A2, OPP: ANURADHA APARTMENTS,
GOPAL, MADGOA, SOUTH GOA, GOA-403601.
... PETITIONERS
(BY SRI.K L PATIL, ADVOCATE)
AND
THE STATE OF KARNATAKA
THROUGH RATTIHALLI POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... RESPONDENT
(BY SMT.SEEMA SHIVA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC.438 OF
CR.P.C., PRAYING TO GRANT ANTICIPATORY BAIL TO THE
PETITIONERS / ACCUSED NOS.2, 4, 5, 7 & 8 IN RATTIHALLI
POLICE STATION CRIME NO.88/2019 REGISTERED FOR
OFFENCES PUNISHABLE UNDER SECTIONS 376(2)(n), 312, 313,
506, 109 OF IPC AND CHARGE SHEETED FOR THE OFFENCES
PUNISHABLE UNDER SEC.354(D), 420, 376(2)(n), 312, 313,
506, 109, 120(B) OF IPC AND SAME IS REGISTERED AT CC
NO.437/2019 PENDING ON THE FILE OF ADDL. CIVIL JUDGE &
JMFC, HIREKERUR.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
This petition is filed by the petitioners-accused Nos. 2,4,5,7 and 8 under Section 438 of Cr.P.C. seeking bail in Crime No.88/2019 of Rattihalli Police Station registered for the offence punishable under Sections 376(2)(n), 312, 313, 506, 109 OF IPC and charge sheeted for the offence punishable under Sections 354(D), 420, 376(2)(n), 312, 313, 506, 109, 120(B) OF IPC.
2. It is the case of the prosecution that, victim girl has filed a complaint against the petitioners and others alleging that, she is residing with her father in the above said address and her brothers are engaged in doing coolie works and she has completed her graduation in Arts (B.A). It is further alleged that, in the year 2017 when she was in 2nd year of her B.A., accused No.1 befriended with her and used to follow her and tease her, for which, the complainant had allegedly objected. Subsequently, the said accused No.1 started to say to her that he was in love with her and wanted to marry her. Though, the 4 complainant requested him not to do so since her father would stop her from going to college if this fact comes to his knowledge. Accused No.1 did not listen to her and continued to persuade her. It is further alleged that, on 02.05.2018 at around 1.00p.m. in the afternoon, accused No.1 told the complainant that it was his birthday and as such asked her to come to his home and when the complainant showed reluctance, accused No.1 allegedly told her that he would spoil her name in the society if she did not come. When the complainant went to the house of accused No.1, she noticed that there were neither any arrangements for birthday celebration nor was there any birthday. When the complainant tried to return from there, accused No.1 allegedly held her and committed forced sexual intercourse with her and also told her not to tell about it to anyone or else he would commit suicide by writing her name in the suicide note. It is further alleged that, likewise, accused No.1 used to commit such forced sexual intercourse with her every now and then by 5 threatening her. It is further alleged that, on 07.03.2019 when the complainant was returning from her computer class, accused No.1 met her near the State Bank and again took her to his home and committed forcible sexual intercourse. If is further alleged that, the complainant missed her menstrual periods, she informed the said fact to accused No.1 and told him to marry her. Accused No.1 allegedly told her that they could first take up a check up and get it confirmed before proceeding further. Likewise, when the complainant and accused No.1 consulted the doctor, the doctor suggested that there are chances of her pregnancy and as such advised them to get the scanning done. When the complainant and accused No.1 both went to the scan centre, it was confirmed that, the complainant was pregnant by 6 weeks, 6 days. Accused No.1 by allegedly stating that since they were married only 3 months back and did not want children so early, allegedly got the said pregnancy aborted. It is further alleged that, on 11.05.2019 the said accused No.1 again took the 6 complainant for scanning and came to know that the pregnancy was not yet aborted. As such he again got medications for her in order to get her pregnancy aborted and told the complainant to not to inform anyone regarding the said fact. It is further alleged that, accused No.1 assured the complainant that he would speak to his family members and get the date of their marriage fixed and left her at her home. It is further alleged that, accused No.1 later neither contacted the complainant in person or over phone. When the complainant himself called him up and enquired, he told her that he had come to Goa for work and assured her that he would come back after Ramzan and marry her. Though the complainant waited for accused No.1, he did not come on Ramzan. When the complainant again called him up and enquired with him, accused No.1 allegedly told her that he had done the same thing to many girls and she was one of them and told her that if she made the said issue public it would only tarnish her image as well as the image of her family and as 7 such threatening the complainant with her life accused No.1 disconnected the call. It is further alleged that, the complainant scared of the said incident, the complainant informed the happenings to her parents for which the father of complainant spoke with the elders of the community who tried to initiate talks with the family members of accused No.1 for which the family members have allegedly not co-operated. They have told the members of the community to accused No.1 would not listen to them and as such told the community members to do as they wish against him. It is further alleged that, the Rattihalli Police have filed the charge-sheet in Crime No.88/2019 for the offence punishable under Sections 354(D), 420, 376(2)(n), 312, 313, 506, 109 and 120B of IPC. The petitioners have arrayed as accused Nos.2, 4, 5, 7 and 8 in the charge-sheet. The petitioners approached II Addl. District and Secessions Judge, Haveri in Crim.Misc.No.175/2020 seeking anticipatory bail and the same came to be rejected by order dated 22.05.2020. 8 Therefore, the petitioners are before this Court seeking anticipatory bail.
2. Heard the learned counsel for the petitioners- accused Nos.2, 4, 5, 7 and 8 and learned HCGP for respondent-State.
3. It is the submission of the learned counsel for the petitioners-accused that, the sexual assault is alleged against accused No.1, the offence leveled against the accused Nos.2 to 8 are under Section 109 and 120B of IPC. It is his further submission that, on looking to the entire complaint, it is clear that, the allegation leveled against the petitioners is that they conspired with accused No.1 and not co-operated with the elders of the community who tried to take initiative steps regarding marriage of accused No.1 with the victim girl. It is his further submission that, the petitioner/accused Nos.2,4,5,7 and 8 are residing in different places and they were not present in Rattihalli. It is his further submission that, the offences alleged against the petitioners/accused are not 9 punishable with death or life imprisonment. With this he prayed to allow the petition.
4. Per contra, the learned HCGP contended that petitioners have supported the accused No.1 and they are trying to send the accused No.1 to Dubai and it is her further submission that, the petitioners abetted the accused No.1 not to marry the victim girl. It is her further submission that, the charge sheet has been filed, there is prima-facie material against accused for the offences alleged against them. It is her further submission that, if petitioners are granted with anticipatory bail, they will tamper the prosecution witnesses and flee way from justice. With this she prays to reject the anticipatory bail application.
5. Having regard to the submission made by the learned counsel for the petitioners and the learned HCGP, this Court has gone through the charge sheet records. 10
6. In Siddharam Satlingappa Mhetre v. State of Maharashtra reported in AIR 2011 SC 312, the Hon'ble Supreme Court after analyzing various previous judgments and guidelines, has enumerated the following factors and parameters that can be taken into consideration by courts while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;11
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully.
The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of sections 34 and 149 of the Penal code, 1860, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in 12 the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
7. On looking to the entire charge-sheet material, the allegation of sexual assault is against accused No.1. The allegation leveled against petitioners is that, they conspired with accused No.1 and not co-operated with the elders in arranging marriage of accused No.1 with victim girl and tried to send the accused No.1 to Dubai. The offences leveled against the petitioners are under Section 109 and 120B of Indian Penal Code, which are not punishable with death or imprisonment for life. The petitioners apprehend their arrest as their names are shown as accused in the charge sheet. There are no criminal antecedents of the petitioners, the petitioners are residing in the address shown in the cause title is not disputed. The apprehension of the prosecution that, in the event of grant of anticipatory bail, the petitioners are likely to cause threat to the complainant and other prosecution 13 witnesses and they may flee away from justice. The said objection may be set right by putting some stringent conditions.
8. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for grant of anticipatory bail subject to certain terms and conditions. Hence, I pass the following:
ORDER Criminal petition filed under Section 438 of Cr.P.C. is allowed. In the event of arrest, petitioners/accused Nos.2 4, 5, 7 and 8 are ordered to be released on bail in connection with Crime No.88/2019 of Rattihalli Police Station with the following conditions:
I. Petitioners shall execute a personal bond for a sum of Rs.1,00,000/- each (Rupees One Lakh Only) with one surety for the like sum to the satisfaction of the Investigating Officer/Jurisdictional Court.14
II. Petitioners shall surrender before the Investigating Officer/Jurisdictional Court within fifteen days from today.
III. The petitioners shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer.
IV. The petitioners shall not obstruct or hamper the Police investigation and not to play mischief with the evidence collected or yet to be collected by the Police.
V. The petitioners shall appear before the jurisdictional Court and co-operate in speedy disposal of the case.
Sd/-
JUDGE Hm b / K K P