Karnataka High Court
Basavaraj S/O. Ramanna vs The State Represented on 25 October, 2017
Author: K.Somashekar
Bench: K. Somashekar
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R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF OCTOBER 2017
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL PETITION NO.102293/2017
BETWEEN
Basavaraj S/o: Ramanna,
Age: 25 Years, Occ: Mechanic,
R/o; Nazeer Sab Colony, Kartagi,
Tq: Gangavathi, Dist: Koppal.
.......Petitioner
(By Sri Amaregouda, Advocate )
AND:
The State represented by the PSI.,
Karatagi Police Station,
Tq: Gangavati, Dist: Koppal.
R/by the State Public Prosecutor,
High Court of Karnataka,
Dharwad Bench at Dharwad.
........Respondent
(By Sri Praveen.K Uppar, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C., seeking to allow this petition and grant bail to the
accused in Crime No.58 of 2017 dated 08.04.2017 before
Karatagi police station for the offence punishable under
Section 376, 420, 505, 506 of IPC (C.C.No.692 of 2017
pending before the Prl. Civil Judge & JMFC, Gangavathi).
This petition coming on for Orders this day, the court
made the following:
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ORDER
This petition is filed by the petitioner/accused under Section 439 of Cr.P.C. of Karatagi Police Station in Crime No.58/2017 registered for the offence punishable under Sections 376, 420, 504, 506 of IPC. Since from the arrest the accused is in judicial custody. Therefore, the learned counsel for the petitioner is praying to enlarge him on regular bail amongst the grounds urged therein.
2. Brief facts of the prosecution case are as under; It is alleged in the complaint filed by the victim who has completed PUC in Kerebasaveshwara College Karatagi, wherein she was acquainted with the accused and the accused introducing himself with the victim being the complainant, as he also belongs to the same community of Nayak. Subsequently, the victim has continued her education in Kollinageshwara Rao College, Gangavathi. At that time also the accused who met the victim/ complainant repeatedly. Because of that acquaintance between the victim and the accused that he had given the assurance to her by promising to marry her. Because of that acquaintance between them 3 that the accused had physical contact with the victim Durgamma several times. Later he refused to marry her. Hence, she has filed a complaint before the respondent police alleging that the accused had physical contact with her and also having forcible sexual intercourse with her which is reflected in the FIR recorded by the police. Subsequent to registering the crime against the accused, the case has been taken up for investigation by the investigating officer and investigated the case and laid the charge sheet against the accused for the alleged offences stated supra.
3. Heard the learned counsel for the petitioner/accused and the learned SPP for the respondent - State and perused the records.
4. Whereas the learned counsel for the accused/ petitioner during the course of arguments has taken thorough the complicity of the crime borne out in the complaint filed by the victim, which is against the accused. Even though the accused being an innocent person for the alleged offences, despite of it, merely because of filing of a complaint by the victim, the crime came to be registered against him with an 4 oblique motive just to give harassment to the accused. As the victim was studying in PUC and the same has been reflected in her complaint which is filed before the police. It is false allegation that, on 12.03.2017, the accused had physical contact with her it is against her will by inducing that he would marry her. As the accused is a married person and also having two children, despite of it, she had acquaintance with the accused. It is alleged in the complaint that the accused had physical contact with the victim and so also having forcible sexual intercourse with her against her will by promising her to marry. The allegation made in the complaint filed by the victim and based upon the complaint the crime came to be registered on the complicity of a crime, are far away from the truth of the incident. It is further contended that the FIR which has been recorded by the police and also laid the charge sheet against the accused by recording the statement of witnesses and so also by conducting mahazar in the presence of pancha witnesses. But there is considerable delay of 28 days in lodging the complaint by the victim before the police for the alleged offences against the accused. Whereas the medical report secured by the investigating 5 officer during the course of investigation revealed that no injury marks and suggestive factors of a rape against the victim are found. As this contention has been taken by the learned counsel for the accused and also the ground urged in the petition. In support of his contention he has placed the reliance's of the orders in Criminal Petition No.3054/2015 dated 22.06.2015 and another Criminal Petition No.100478/2015 in the case of Ashok Vs The State of Karnataka, Hubli-Dharwad Mahila P.S. reported in 2015 (3) KCCR 2139. The counsel also placed the reliances in the case of Arjun Gupata Vs State of Jharkhand dated 14.09.2001 and Hari Majhi Vs The State dated 26.09.1989 as the same has been placed by the counsel for the purpose of perusal. The citation of the Hon'ble Supreme Court in the case of Uday Vs State of Karnataka reported in (2003) 4 SCC 46, whereas the ratio of this reliance which is placed by him are squarely applicable to the facts and circumstances of the case relating to the offences which lugged against the accused. On these grounds the counsel for the accused/petitioner praying to consider the same and enlarge the accused on bail.
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5. Per contra, the learned SPP for the respondent- State has vehemently contended by taking through the allegation made in the complaint and so also the reflection in the FIR which has been recorded by the police for the alleged offences under Section 376, 420, 504 and 506 of IPC, as where the accused who alleged to had physical contact with the victim and so also having sexual intercourse against her will by extending life threat and also made her to inducement for marriage with her and the same has been revealed in the charge sheet which has been laid by the investigating officer as the case in C.C.No.692/2017. Therefore, in all it appears that there are prima facie materials against the accused for inducing the victim to marry her and also having physical contact with her and so also having sexual intercourse with the victim against her will. Therefore, the accused is not deserving for bail. Hence, considering the material allegation find place in the record of charge sheet filed by the investigating officer in C.C.No.692/2017 praying for dismissal of the bail petition filed by the accused.
6. Keeping in view the submission made by the learned counsel for the accused and so also the learned SPP 7 for the State, it is relating to the case in C.C.No.692/2017 for the alleged offences against the accused stated supra are concerned and also looking to the complicity of the crime which is registered by the police, it is based upon the complaint filed by the victim, it reveals that the complainant being the victim who has completed the PUC course in Kerebasaveshwar College, Karatagi and she had been to that college, by that time the accused as well as the victim were acquainted with each other and the accused himself introduced with the victim that he belongs to the same community, subsequently both the accused as well as the victim were used to having corresponding with each other and also by that acquaintance that the accused extending the inducement to the victim for having marriage with her that he had alleged to having sexual intercourse with her against her will. It is seen in the materials available on record in the charge sheet laid against the accused, that on 06.04.2014 at about 3.00 p.m., wherein the accused who alleged to having a physical contact with the victim and also having sexual intercourse with her forcibly against her will near School of Navale. The materials further reveal that even after one week 8 also the accused alleged to had sexual intercourse with the victim against her will in Sulekal Seema at the intervals of 3-4 months in the aforesaid place wherein the accused alleged to had physical contact with her. The accused who alleged to having sexual intercourse with the victim on 06.03.2017 at about 10.00 p.m., at Gangavathi Apsara Lodge in room No.210. But all these materials were find place in the record of charge sheet filed by the investigating officer by recording statement of witnesses and so also conducting mahazar in the presence of panch witness relating to the complicity of crime against the accused. Though the accused who is a married person having two children, despite of this fact, that the victim alleged to had acquaintance with the accused and also had physical contact with her as well as sexual intercourse and merely because that the accused who made to inducement to marry her. But all these facts are borne out from the charge sheet laid by the investigating officer in C.C.No.692/2017, which arose in Crime No.58/2017, as this contention taken by the learned counsel for the accused during the course of arguments. As already stated supra that there was considerable delay of 28 days in filing the 9 complaint by the victim before the police for allegations that the accused made her to inducement and for the acquaintance that he had forcible sexual intercourse with the victim against her will. But the medical report is not revealed that any injury marks and also suggestive factors of a rape of allegation made in the FIR recorded by the police against the accused but the charge sheet which is laid by the against the accused for the alleged offences including the offence punishable under Section 376 of IPC. Though the charge sheet which has been laid by the investigating officer against the accused in C.C.No.692/2017 before the committal Court but it is enough material to proceed against the accused for facing the trial for the alleged offences but the materials which were secured by the police during the course of investigation it cannot be said there is enough material for declining the relief of bail as sought for by the accused. Therefore, at this stage, it is said that it does not require any detailed discussion while considering the bail petition filed by the accused as there are substances in the contention of the counsel for the accused to seeking the relief of bail. 10
7. In the circumstances of the present petition for seeking bail u/S 439 of Cr.P.C. are concerned, it is relevant to state that the power of the High Court u/S 439 of Cr.P.C. are considerably wider than the object of Sec. 437 of Cr.P.C. it is the power vested with the Magistrate. However, the equivalent power is given to the Court of Sessions to exercise the power u/S 439 of Cr.P.C. the relief of bail but the distinction drawn between the non-bailable offences punishable with death or life imprisonment and other than the non-bailable offences with lesser punishments are non existent in Sec. 439 of Cr.P.C; nor is there the condition that the bail shall be refused if there appear reasonable grounds for believing that the accused has committed an offence falling under the first category as stated supra. Where the discretion in respect of Sec. 439 of Cr.P.C. it is wholly unfettered and is wide enough to allow bail in any case even when charged with non-bailable offence of a most serious character of any offence which alleged to be committed for the offences. So also the charge sheet laid by the IO by recording the statement of witnesses and also conducted mahazar in the presence of panch witnesses but the power is vested as 11 u/S 439 of Cr.P.C. are non-fettered by any limitation other than which controls all discretionary powers. Though the discretion is absolute and unfettered by restriction of any kind like all discretionary power has to be judicially and judiciously and on well established principles. In case where there is reasonable ground for believing that the accused has been guilty of an offence alleged against the accused in a charge sheet laid by the IO but undoubtedly the power is vested with the High Court to exercise judicial as well as judiciously u/S 439 of Cr.P.C. but only in exceptional cases any allegation that the accused is tampering or hampering with the prosecution witnesses and thereby obstructing the Court of Justice which would be a very cogent ground for refusing the bail but for the present petitioner in respect of the relief as sought u/S 439 of Cr.P.C. as already stated supra keeping in view the grounds urged by the learned counsel so also the materials which were placed by the IO in the charge sheet laid against the accused are concerned, has opined that the accused deserving for the bail as the bail is rule and jail is an exception. This doctrine is always is 12 keeping in mind for exercising the power u/S 439 of Cr.P.C. in bail petition filed by the accused before the Court of law.
8. However, the learned SPP for the State contending that if the accused is supposed to be released on bail, certainly he would come in the way of prosecution case and destroy the evidence. As this apprehension expressed by the learned SPP it could be curtailed by imposing certain suitable conditions to safeguard the interest of the prosecution, where the accused is required for facing the trial for the alleged offences revealed in the charge sheet as laid by the investigating officer. Therefore, for the aforesaid reasons and as well as the circumstances of the case, I am of the 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 Cr.P.C. 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 likesum surety to the satisfaction of the Prl. District and Sessions Judge, Koppal, where the case in S.C.No.62/2017 is pending.13
(2) The petitioner/accused shall not tamper or hamper the case of prosecution witnesses.
(3) The petitioner/accused shall appear before the Court of law on all the dates of hearing without fail.
(4) The petitioner/accused shall not leave the jurisdiction of Koppal District without prior permission from the competent Court of law.
(5) The petitioner/accused shall not indulge with any criminal activities henceforth.
If the petitioner violates any of the above conditions, the bail order shall automatically stands ceased.
SD/-
JUDGE msr