Karnataka High Court
Mahesh @ Vijaymahantesh S/O. ... vs State Of Karnataka on 20 November, 2017
Author: K.Somashekar
Bench: K.Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO.102462 OF 2017
BETWEEN:
MAHESH @ VIJAYMAHANTESH,
S/O. CHANDRAKANT TOTAGER,
AGED ABOUT 46 YEARS,
OCC: DRIVER KSRTC,
R/O. CHINNAPUR,
HUNAGUNAD TALUKA,
DISTRICT: BAGALKOT. ... PETITIONER.
(SHRI ARAVIND D. KULKARNI, ADV.)
AND:
STATE OF KARNATAKA
THROUGH HUNGUND POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
DHARWAD. ... RESPONDENT.
(Shri PRAVEEN K. UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C., SEEKING TO ALLOW THE PETITION AND
ENLARGE THE PETITIONER ON BAIL IN
SPL.C.NO.167/2017 (HUNGUND P.S. CRIME NO.31/2017)
REGISTERED FOR THE OFFENCES PUNISHABLE UNDER
:2:
SECTIONS 363, 366-A, 376(2)(i)(n) OF IPC AND UNDER
SECTIONS 4, 6 AND 8 OF THE PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES ACT, 2012.
THIS CRIMINAL PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This bail petition has been filed by the petitioner
- Accused under Section 439 of the Code of Criminal Procedure in Hungund PS Crime No.31/2017 for offences punishable under Sections 363, 366-A, 376(2)(i)(n) of the Indian Penal Code, 1860 besides Sections 4, 6 and 8 of the POCSO Act, 2012. Since from the date of his arrest, the accused is in judicial custody. Therefore, the learned counsel for the petitioner prays for enlargement of the accused on regular bail on the grounds urged therein.
2. The brief facts of the prosecution case are as under:
A Planning Director of Supreme Vidya Samsthe had filed a complaint on 20.02.2017 that the victim :3: girl Rekha aged about 16 years who was a resident of Iddalagi village, was induced by the accused who took her away with him in a motor cycle and then in a bus and a train, to finally reach Bangalore. It is alleged that he had confined her in a rented house in Bangalore for a period of four days, where he had fondled her and also sexually assaulted her. After four days, he had taken her to the Bangalore Railway Station and had asked her to stay back while he told that he would return shortly, but never returned. Seeing this abandoned girl roaming about here and there, some of the workers there had admitted her to the Children Welfare Committee. Since it was found that she belonged to Bagalkot District, she was then shifted to Girls Stay Home, Bagalkot, who in turn sent her to the custody of Supreme Vidya Samsthe, Bagalkot.
Though the girl went missing from their house, her parents did not file any missing complaint of their :4: daughter. But after a lapse of five months, a case in Cr.No.31/2017 came to be registered in Hungund P.S. On receipt of the complaint filed, crime came to be registered and thereafter the case was proceeded for investigation. Since the date of arrest, the accused is in judicial custody.
3. Heard the arguments advanced by the learned counsel for the petitioner and the learned HCGP for the State.
4. The learned counsel for the petitioner during the course of his arguments has contended that the accused is employed in the KSRTC as a Driver, but due to an accident when he suffered physical disability, he was referred to the Medical Board. The Medical Board who had subjected him to examination have submitted a report which indicates that the accused suffered from fracture of right femur shaft and fracture of left patella, resulting in a locomotive disability of 50 to 55% and he is unfit to drive and his :5: occupation being driver, he has been given light work in the KSRTC Unit of Bagalkot. Moreover, it is submitted that he is unable to move without the help of a walker.
It is further contended that subsequent to recording the statement of witnesses, spot mahazar was conducted and charge-sheet has been laid where the victim had also been secured and her statement was recorded under section 164 Cr.P.C. The victim is said to have stated in her statement that she had been abducted by the accused. She had specifically stated that the accused's grandfather as well as the grandfather of this victim are said to be relatives and the accused is related as a cousin to her. But in her statement she has stated that for four days the accused and herself stayed in a rented house in Bangalore where the accused had fondled her and also is alleged to have had physical contact with her. This statement is said to have been given by the victim :6: under Section 164 Cr.P.C. Further, the victim was subjected to medical examination which revealed that she was aged 17 to 18 years. The learned counsel submits that the accused is ready to abide by any terms and conditions to be imposed by this court while granting bail to him. On all these grounds, the counsel for the petitioner seeks for the relief of bail.
The accused has a family consisting of his wife and two minor children and he being the only source of income in the family to eke out their livelihood, if the accused is kept behind bars for a longer period, the family members will be ruined in the Society and also would lose the bread-winner. Further, he is a limping man who cannot walk without the help of a walker. This aspect has to be considered by this court which considering the relief for bail is concerned.
5. Per contra, learned HCGP vehemently contended that the complicity of the crime said to be registered in Crime No.31/2017 by Hungund P.S. :7: where the accused is said to have abducted the victim aged 16 years and also having confined her in a house for four days where the accused is said to have fondled her and sexually assaulted her. These facts along with the statement recorded under Section 164 Cr.P.C. are required to be looked into. But merely because her parents had not filed a missing complaint should not be a ground to grant the relief of bail. The Investigating Officer has laid a charge-sheet against the accused. The statement of the victim has been recorded under Section 164 Cr.P.C. For all these grounds, the learned HCGP contends that the accused does not deserve to be released on bail.
6. However, the charge-sheet has been laid against the accused consisting the statement of witnesses, and mahazar is said to be conducted by the police.
It is necessary to state at this stage that though enough materials have been collected by the :8: Investigating Officer during the course of investigation and charge sheet has been laid against the accused, it cannot be said that there are enough materials to decline the relief of bail, as sought for by the petitioner/accused. Therefore, keeping in view the submission made by learned counsel for the petitioner and also the learned HCGP for the respondent - State, at this stage, it is said that it does not require for any detailed discussion, while considering the bail petition filed by the petitioner, as there are substance in the contention of the learned counsel for the petitioner seeking for the relief of bail.
7. Whereas, the learned HCGP submits that if the petitioner is supposed to be released on bail, certainly he would come in the way of prosecution case and would destroy the evidence. This apprehension expressed by the learned HCGP, could be curtailed by imposing certain suitable conditions to safeguard the interest of the prosecution. Therefore, :9: for the aforesaid reasons as well as under the circumstances of the case, I am of the considered opinion that the petitioner/accused is deserving for bail. Accordingly, I proceed to pass the following:
ORDER The bail petition filed by the petitioner/accused under Section 439 of the Code of Criminal Procedure is hereby allowed, subject to the following conditions:
(1) The petitioner/accused shall execute a bond in a sum of Rs.1,00,000/- with a like sum surety to the satisfaction of II Additional District & Sessions Judge in Spl.C.No.167/2017 (arising out of Cr.No.31/2017 of Hungund P.S.).
(2) The petitioner / accused shall not tamper or hamper the case of prosecution witnesses.
(3) The petitioner/accused shall mark his attendance once in a month on the first week of Sunday in between 10.00 a.m. and 5.00 p.m. before the concerned : 10 : SHO pending disposal of the entire case (4) The petitioner/accused shall not leave the jurisdiction of Bagalkot District without prior permission from the competent Court of law.
(5) The petitioner / accused shall appear before the court of law on all dates of hearing, without fail (6) The petitioner/accused shall not indulge in any other criminal activities henceforth.
If the petitioner/accused violates any of the above conditions, the bail order shall automatically stand ceased.
Sd/-
JUDGE KS