Karnataka High Court
Malatesh S/O. Suresh Kammar vs The State Of Karnatak on 11 June, 2021
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11 T H DAY OF JUNE 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.100781/2021
BETWEEN:
MALATESH S/O: S URESH KAMMAR,
AGE: 20 YEARS , OCC: CARPENTER,
R/O: KURA BARMALLUR,
TQ: SAVANUR, DIST: HAVERI-581110.
...PETITIONER
(BY SRI.M.M .PATIL, ADV OCATE)
AND:
THE STATE OF KARNATAKA,
REP. BY ITS S .P.P.
HIGH COURT BUILDING,
DHARWAD BEN CH,
DHARWAD-580011.
... RES PONDENT
(BY SRI. RAMESH CHIGARI , HCGP)
THIS CRIMINAL PETITION IS FILED U/S 439 OF
CR.P.C., S EEKIN G TO A LLOW T HE PETITION AN D
ENLARGE THE PETITIONER ON BAI L IN
SPL.S.C.N O.1/ 2021, IN PURS UANCE OF THE CRIME
NO.63/ 2020 REGISTERED BEFORE THE HAV ERI
WOMEN'S POLICE STATION, HAVERI FOR THE
OFFENCES PUNISHABLE U/SEC.363, 366, 376(2)(N) OF
IPC AND U/S 4, 6, 8, 12 OF POS CO ACT.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
This petition is filed by the sole accused under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.63/2020 of Haveri Women's Police Station, registered for the offences punishable under Sections 363, 366, 376(2)(n) of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Section 4, 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act', for brevity).
2. It is the case of the prosecution that one Shivappa S/o: Chandrashekharappa Hadagali, has filed the complaint stating that on 03.11.2020 he is residing in Vishveshwartheerth Nagar, 1 s t Cross, Haveri, 3 along with his wife and two daughters including the victim girl aged 15 years 10 months. It is further stated that the victim girl was studying in first PUC Commerce in Government First Grade College, Ijarilakamapur. That on 02.11.2020, after having the dinner, all slept at 11.30 p.m., when he woke up at 2.00 a.m. to attend the first call of nature. At that time, he did not find the victim girl in her bed and he enquired with his wife and she told that victim girl was sleeping and he intimated the same to his younger brothers and searched for her in Haveri Bus stand, Railway Station, bye-pass and did not find her. He also enquired with the relatives of him and he did not get any information and he filed the complaint stating that somebody might have kidnapped her. The said complaint came to be registered in Crime 4 No.63/2020 for the offence punishable under Section 363 of IPC against unknown persons. The Investigating Officer, after completing the investigation has filed the charge sheet against the petitioner for the aforesaid offences. The accusation leveled against the accused petitioner in the charge sheet is that he kidnapped the victim girl aged 15 years 10 months and took her to Dharwad to a hostel building and had forcible sexual intercourse on 03.11.2020 at 3.00 a.m. The petitioner came to be arrested on 05.11.2020. The petitioner filed bail application in Spl.C.No.1/2021 and the same came to be rejected by Addl. District and Sessions Judge, FTSC-1, Haveri, by order dated 02.03.2021. Therefore, the petitioner is before this Court seeking bail.
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3. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State.
4. It is the contention of the learned counsel for the petitioner/accused that petitioner is innocent, he has not committed any offence as alleged and he has been falsely implicated in the case. He further contended that there was love affair between the petitioner and the victim girl and victim girl has stated the same in her statement recorded under Section 164 of Cr.P.C. The doctor who examined the victim girl has noted that there are no injuries over the genetelia and body of the victim girl. The doctor has also noted that hymen was irregular. The doctor after receipt of FSL report has given final opinion opining that there is no evidence of recent sexual 6 intercourse. The victim girl has been examined on 05.11.2020. He further contended that the investigation is over, charge sheet has been filed and therefore, the petitioner is not required for any custodial interrogation. The petitioner is ready to abide by the terms and conditions to be imposed by this Court. With this, he prayed for allowing the petition.
5. Per contra, learned High Court Government Pleader has contended that, the victim girl was aged 15 years 10 months and as on the date of offence. Her date of birth is 03.01.2005. The said victim is a minor her consent is 'no consent' in the eye of law. The charge sheet material shows prima facie case against the petitioner, if the petitioner/accused is released on bail, he will threaten the complainant and other prosecution witnesses 7 and flee from justice. With this, he prayed to dismiss the petition.
6. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the charge sheet records.
7. In the statement recorded by the police on 04.11.2020 and the statement recorded under Section 164 of Cr.P.C., victim has stated that she was in love with the petitioner-accused. The date of birth of the victim girl is 03.1.2005 and she was 15 years 10 months as on the date of the offence. The medical examination record reveal that there were no external injuries over the body of the victim and there were no injuries over her 8 genetelia . The doctor who examined the victim girl has given final opinion after receiving FSL report that there is no evidence of recent sexual intercourse. The victim girl was the age of understanding the consequences of her acts. As the charge sheet has been filed, petitioner is not required for any custodial interrogation. The petitioner has no criminal antecedents. The victim girl has sent a letter stating that evidence of herself and her parents were not recorded and if the petitioner accused is released on bail he will visit her college and harass by following her. The said apprehension of the victim girl can be met with by imposing conditions on the petitioner not to visit Haveri, wherein the victim girl is residing and studying in college. The other objections of the prosecution that in the event of granting bail, 9 the petitioner is likely to cause threat to the complainant and other prosecution witnesses may be met with by imposing 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 granting bail subject to certain terms and conditions. Hence, I proceed to pass the following:
ORDER The petition filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioner shall be released on bail in Crime No.63/2020 of Haveri Women's Police Station subject to the following conditions:10
i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with one surety for the like sum to the satisfaction of the jurisdictional Court. Due to COVID-19, the petitioner is permitted to furnish surety within two months. If circumstances arise, the jurisdictional Court is permitted to extend the period for furnishing surety.
ii) The petitioner shall not indulge in tampering the prosecution witnesses.
iii) The petitioner shall not visit Haveri Town except for attending the Court on hearing dates of the case registered against him till disposal of case.
iv) The petitioner shall not contact
the victim girl in any way either
through phone, whatsapp or any
other electronic and communication
means.
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v) The petitioner shall attend the Court on all the dates of hearing unless exempted and co-operate in speedy disposal of the case.
Sd/-
JUDGE RM