Karnataka High Court
Manoj Kumar M vs State Of Karnataka on 28 January, 2014
Author: R.B Budihal
Bench: R.B Budihal.
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IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 28TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL PETITION NO.7583/2013
BETWEEN:
Manoj Kumar M,
S/o. Manjunath,
Aged about 20 years,
Occ: 2nd Year B.Com,
R/o. No.30/4,
'Sneha Nandini Apartment'
Doller Colony Scheme,
Nandini Layout,
Bangalore-560 096. .. PETITIONER
(By Sri.Shivaraj.N.Arali, Adv.)
AND:
State of Karnataka,
By Mahalaxmipuram Police Station,
Bangalore-560 096.
Represented by
State Public Prosecutor .. RESPONDENT
(By Sri. K. Nageshwarappa, HCGP)
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This Criminal Petition is filed under Section 439 of
the Cr.P.C. praying to enlarge the petitioner on bail in
Cr.No.354/2013 of Mahalakshmipuram P.S., Bangalore
city , for the offence P/U/S 376 and 306 of IPC and U/S
4 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 petition is filed by petitioner-accused under Section 439 of Cr.P.C. seeking his release on bail of the offences punishable under Sections 376 and 306 of IPC r/w Section 4 of the Protection of Children from Sexual Offences Act, 2012 registered in respondent-police station Crime No.354/2013.
2. Heard the arguments of the learned counsel for the petitioner-accused and also the learned Government Pleader for the respondent-State.
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3. Learned counsel for the petitioner-accused during the course of his argument submitted that there is no prima facie material placed by the prosecution to show the involvement of this petitioner in the commission of the alleged offence. He has submitted that though the prosecution has relied upon the death note, but no reliable material has been placed by the prosecution to inspire the confidence of this Court. Even regarding number of pages of death note, there is contradictory version. Even the identity of the petitioner that he himself has been involved in the commission of is not satisfactorily established at this stage by the prosecution. Regarding the case of the prosecution that the deceased opened the face book and she was contacting the petitioner and was talking with him, the counsel submitted that for opening face book account, the person has to declare that he is above the age of 18 years and till then, he is not permitted to open the face book account. He further submitted that though the 4 death note said to have been there on table on 5.11.2013 itself, it was not immediately placed before the concerned Special Court and only on 7.11.2013 it was placed before the concerned Magistrate Court and hence, there is a delay of two days, which will also raise suspicion regarding the case of the prosecution about the death note said to have been left by the deceased. It is submitted that the materials collected so far does not show that petitioner is involved in the commission of the alleged offence. Regarding the contention of the prosecution that the FSL report and also handwriting expert report are awaited, it may take long time, till then unnecessarily the petitioner has to be in custody. He is a student studying in the college and because of his arrest and lying in custody, he has lost his opportunity to appear for examinations. These aspects were not properly considered by the lower Court while considering the bail application. It is further submitted that even for arrest there must be acceptable and prima facie material and then only a person can be arrested, 5 but here in this case, no such material is there and in spite of that, petitioner has been taken into custody by the police and subsequently, police went on improving the case by collecting further material. Hence, he submitted that by imposing any reasonable conditions, petitioner may be admitted to bail. In support of his contention, the learned counsel for the petitioner has relied upon the decision reported in AIR 1994 SC 1349 in the case of Joginder Kumar Vs. State of U.P. and others.
4. As against this, learned Government Pleader during the course of his arguments submitted that the prosecution has placed prima facie material to show that the deceased was the friend of the present petitioner and through face book they were talking to each other. The material collected during investigation goes to show that petitioner had physical contact with the deceased and when ultimately, he told her that he is going to marry some other girl as per the wish of his 6 parents, she became disappointed in her life and has committed suicide. The Investigating Officer has seized the mobile phones of the deceased as well as the present petitioner and the material collected during investigation shows that he used to give notebooks to the deceased and she used to write notes for the petitioner. The investigating officer has also seized the note books of both the deceased as well as the petitioner and they have been sent for handwriting expert and the report is still awaited. Hence, learned Government Pleader submitted that whatever material collected by the investigating officer during investigation at this stage shows the prima facie case as against the present petitioner of he committing the alleged offences under Sections 376 and 306 of IPC r/w Section 4 of the Protection of Children from Sexual offences Act. He further submitted that the date of birth certificate of the deceased shows that as on the date of the incident she was below the age of 14 years. The petitioner has also deleted the messages and photos, which shows that if 7 he is released on bail he is going to tamper the prosecution witnesses. He lastly submitted that investigation is not yet completed and accordingly, requested to rejected the bail application.
5. I have perused the averments made in the bail petition, FIR, complaint and other charge sheet material produced in the case. I have also perused the order passed by the lower Court on the bail application filed by the petitioner and also the decision relied upon by the learned counsel for the petitioner and the principle enunciated in the said decision by the Hon'ble Apex Court.
6. It is the case of the prosecution in brief that the petitioner and the deceased were friends. They came in contact through face book. Petitioner also had the physical contact with the deceased and ultimately, when he told her that he is not going to marry her, she committed suicide. Perusing the statement recorded by 8 the Investigating Officer during investigation the statement of number of witnesses goes to show that the deceased as well as the petitioner used to move together, go to the parks and were used to be in the company of each other. With regard to the death note, it is the contention of the learned counsel for the petitioner that the delay caused in producing the death note before the Special Magistrate Court raises the doubt whether it has been left by the deceased or not. But as per the averments in the complaint, which was lodged by the father of the deceased on 5.11.2013, there is a mention regarding the death note and on the same day during night spot mahazar was conducted. Even in the mahazar there is a mention regarding the death note, which was on the table where the deceased committed suicide and same was taken to the custody in the presence of the panch witnesses. It was packed and sealed and their signatures were also obtained. Regarding number of pages it is true that in the remand application it is mentioned as four pages and in the 9 order of the lower Court it is six pages. But at this stage, the Court is not to conduct mini trial to ascertain about all these aspects. Even the Court while dealing with the bail application should not consider the truth or otherwise of the prosecution case and only thing that is to be looked into by the Court on the basis of the material on record, whether prima facie case is made out against the accused person or not. The note books of the deceased as well as of the petitioner are also seized on the voluntary statement said to have been given by the present petitioner and the Investigating Officer has referred those two note books for the expert opinion, which is yet to be received. Therefore, all these materials prima facie goes to show the involvement of the present petitioner in the commission of the alleged offence.
7. I have also perused the decision relied upon by the learned counsel for the petitioner. But in view of the facts and circumstances and the materials collected 10 during investigation, which are discussed above, I am of the opinion that the said decision will not come to the aid and assistance of the petitioner's counsel at this stage. Hence, I am of the opinion that it is not a fit case to exercise the discretion in favour of the petitioner.
Accordingly, petition is rejected.
Sd/-
JUDGE bkp