Karnataka High Court
Mahammed Chand Pasha vs The State on 25 November, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.201606/2021
BETWEEN:
MAHAMMED CHAND PASHA
S/O RAZAK
AGE: 22 YEARS (AS PER LCO)
OCC: STUDENT
R/O BAGODI, TQ. CHITTAPUR
DIST. KALABURAGI-585211
... PETITIONER
(BY SRI VISHAL PRATAP SINGH, ADVOCATE)
AND:
THE STATE, THROUGH
SINDHANUR TOWN PSI, RAICHUR
REPRESENTED BY ADDL. SPP
HIGH COURT, KALABURAGI BENCH
KALABURAGI-585107
... RESPONDENT
(BY SRI GURURAJ V. HASILKAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CRIMINAL PROCEDURE CODE, PRAYING TO RELEASE THE
PETITIONER ON BAIL IN CRIME NO.48/2021 OF SINDHANOOR
TOWN POLICE STATION, DIST. RAICHUR, FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 363, 376, 419, 384, 506 OF IPC
AND SECTIONS 66(E) AND 67 OF I.T. ACT, 2000 PENDING
BEFORE THE COURT OF SESSIONS AT RAICHUR.
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THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
2. This petition is filed under Section 439 of Cr.P.C., seeking regular bail in Crime No.48/2021 of Sindhanoor Town Police Station, Dist. Raichur, for the offences punishable under Sections 363, 376, 419, 384, 506 of IPC and Sections 66(E) and 67 of Information Technology Act, 2000 (for short 'I.T. Act').
3. Factual matrix of the case is that the complainant-victim girl in her complaint has stated that she was studying PUC in Sharada Women College, Sindhanur. During corona lockdown period, she received phone call from the petitioner and he presented himself that he is the son of Hubballi MLA Abbayya Patil and also 3 informed that he fell in love with her and he asked the complainant to convince her parents. It is further alleged that on 27.02.2021 she had been to college along with her father. Her father left the complainant near Sindhanur bus stand to attend his personal work. When she was waiting in Sindhanur Bus stand, the petitioner came and called her and when she refused, by keeping hand kerchief at her nose made her to become partially unconscious and thereafter, he took her to Bengaluru and told that his aunt will come and take them, but aunt did not turn up. On the guise of making promise that he would take her to native place, he took her to Panaji wherein he forced her to have sexual act making her to consume alcohol. Thereafter, he took pictures and videos of the said sexual assault made on her and brought he back and left her and insisted to withdraw the complaint, though no such complaint was given. It is also alleged that the petitioner has threatened that he would send the said pictures to her relatives and not to 4 do the same, he demanded an amount of Rs.9,00,000/- from her. Inspite of the complainant telling him not to do the same, by taking her relative numbers, he sent the photographs. Based on the complaint, the police have registered the case for the offences punishable under Sections 363, 376, 384, 506 of IPC and Sections 66(E), 67 and 67(A) of the I.T Act. The police have investigated the matter and filed charge sheet invoking offences under Sections 363, 376, 419, 384, 506 of IPC and Sections 66(E) and 67 of I.T. Act.
4. The learned counsel appearing for the petitioner submits that the story of the complainant cannot be believed. The very complaint itself discloses that she was taken to different places. The petitioner also produced some photographs evidencing the fact that she only eloped with the petitioner and she only consumed alcohol. The learned counsel referring to those photographs submits that it is evident that the 5 victim girl who is aged about 21 years went along with the petitioner and it cannot be termed as an offence of rape. As to whether she was subjected to sexual act against her will has to be proved only during the course of the trial. The petitioner is also aged about 22 years. The learned counsel further submits that the other offence alleged against the petitioner with regard to extortion and offence under the I.T. Act are not punishable with death or imprisonment for life and hence, he may be enlarged on bail.
5. Per contra, the learned High Court Government Pleader appearing for the respondent-State would submit that at the first instance the petitioner got introduced himself as son of MLA and thereafter, he developed intimacy with the complainant over phone and by using handkerchief made her to become partially unconscious and took her to different places and subjected her to sexual act. Thereafter, the petitioner 6 subjected her to extortion demanding money and also uploaded pictures which he has taken while committing serious offence of rape on her. Apart from that, demanded amount of Rs.9,00,000/- stating that otherwise, he would post the said pictures to their relatives and accordingly, when the amount was not paid, he sent the said pictures to their relatives. The Court hast to take note of the conduct of the petitioner. It is a serious offence of rape. Whether he promised her to marry and took her to different places on the guise of promise that he would marry her, is a matter of trial and at this stage, the Court cannot exercise power under Section 439 of Cr.P.C.,
6. Having heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State and on perusal of the contents of the complaint, no doubt, the complainant/victim is aged about 21 years 7 and the petitioner is aged about 22 years. The records also reveal that both of them had been to different places. The main allegation against the petitioner is that by making her to consume alcohol subjected her to sexual act. The photographs which the petitioner has placed before the Court also disclose that she was consuming alcohol. The offence alleged against the petitioner is heinous offence of sexual assault. The medical report discloses that she was subjected to sexual assault and hymen was ruptured. However, no genital injuries were present in external genitalia. The Court has to take note of the allegations made in the complaint as well as in the statement recorded under Section 164 of Cr.P.C., before the learned Magistrate. In the complaint as well as in the statement recorded under Section 164 of Cr.P.C., specific allegations are made that she was not only subjected to sexual assault, the petitioner took the photographs. It is also specifically stated that sent the said photographs to her relatives 8 and caused life threat. The Court has to look into the very conduct of the petitioner that when she was subjected sexual assault the said photographs were taken and posted the said photographs to her relatives. The petitioner not only subjected the victim girl to sexual assault, but thereafter using photographs subjected her to extortion as alleged in the complaint. When unmarried girl was subjected to sexual act and taking those photographs in his mobile and sending them to her relatives, is nothing but more than heinous offence. When such materials are available before the Court, I am of the opinion that it is not a fit case to exercise discretion under Section 439 of Cr.P.C., and the Court has to consider the conduct of the petitioner as well as even after having sexual act with her subjected the victim girl for extortion and demanded money making use of the pictures.
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7. In view of the observations made above, I pass the following:
ORDER The petition is dismissed.
The trial Court is directed to dispose of the matter as early as possible.
Sd/-
JUDGE NB*