Karnataka High Court
Mr. Javeed Khasimsab Kasab vs State Of Karnataka on 18 August, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18 t h DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.100880/2020
BETWEEN:
MR. JAVEED KHASI MSAB KASAB
AGE: 30 YEARS , OCC: BUSINESS ,
R/O: HAN UMASAGAR, DIST: KOPPA L .
Tq. KUSTAGI .
... PETITIONER
(BY SRI. NEELEND RA D. GUNDE, AD VOCATE)
AND:
STATE OF KARNATAKA
BY HANUMASAGAR POLICE STATION ,
REPRES ENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD-580001.
... RES PONDENT
(BY SRI. RAMESH B. CHIGARI , HCGP)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 439 OF CR.P.C. SEEKING TO GRANT BAIL T O
THE PETITION ER IN CRIME NO.28/ 2020 OF
HANUMASAGAR POLICE, PENDING BEFORE ADDL. DIST.
& SESSIONS JUDGE, FTSC-I , KOPPAL, IN SPL.
S.C.POCS O NO.20/2020, REGIST ERED FOR THE
OFFENCES P/U/S 363, 376 OF IPC & SEC. 4 & 6 OF
POCS O ACT.
2
THIS CRIMINAL PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed by the 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.28/2020 of Hanumasagar Police Station registered for the offences punishable under Sections 363 and 376 of the Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and under Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012(hereinafter referred to as the 'POCSO Act', for brevity).
2. The case of the prosecution is that one Smt. Mabubi lodged a complaint stating that her daughter was studying in 10th standard at Hanumasagar Girls Primary School and while she was going to school, the petitioner/accused, who is their neighbour, used to talk 3 with her daughter and for the said reason, the petitioner/accused was advised by the villagers not to do so. On 22.02.2020, when the complainant and her husband were in the house, the victim girl left the house at about 12.30 pm on the pretext that she is going to her aunts house to bring clothes. At about 7.00 pm, the complainant enquired with Shainaz Begum. She told that after collecting the clothes, the victim left her house at 12.30 pm itself. Thereafter, the complainant along with her son Shoal searched for the victim and she was not found and a complaint came to be registered for the offences under Section 363 of IPC. After investigation, the police have filed charge sheet alleging that the petitioner/accused, on the pretext of loving the victim, took her on 22.02.2020 from Hanumasagar bus stand to Kustagi and then to Hubballi and in one of the villages near Hubballi, he married her and took her to Bengaluru wherein they stayed in a lodge at Majestic for 5 days wherein the 4 petitioner is alleged to have committed sexual assault on the victim. Thereafter, both of them went to Delhi on 28.02.2020 by train and stayed for 11 days near bus stand and railway station and thereafter went to Gazhiyabad, Uttar Pradesh and stayed there. The petitioner was arrested on 12.03.2020. The petitioner filed bail application and the same came to be rejected by the Special Court by order dated 15.07.2020. Therefore, the petitioner is before this Court seeking bail.
3. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State.
4. Learned counsel for the petitioner has submitted that the charge sheet has been filed and the statement of the victim has been recorded under Section 164 of Cr,P.C. In the said statement, the victim has not alleged any sexual intercourse by the 5 petitioner/accused even though they stayed together for 21 days in different places. It is his further submission that the petitioner is aged 30 years and if he is continued in the judicial custody, he will come in contact with hardened criminals. It is his further submission that investigation is completed and charge sheet has been filed and the petitioner is not required for any custodial interrogation. It is his further submission that the petitioner is ready to abide by any condition that may be imposed by this Court. With these, he prayed for allowing the petition.
5. Per contra, learned High Court Government Pleader submitted that the victim was aged 15 years 10 months as on the date of the offence. It is his further submission that there is prima facie case against the petitioner for the offences under Sections 363 and 376 of IPC and Sections 4 and 6 of the POCSO Act. It is his further submission that if the petitioner is granted bail, 6 he will tamper the prosecution witnesses 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. As per the complaint, the victim was aged 15 years 10 months as on the date of the complaint. The statement of the victim has been recorded under Section 164 of Cr.P.C. In the said statement, the victim has stated that she secured the petitioner/accused and asked him to take her, as there was a problem in her house. The victim has stated that she married the petitioner on 22.02.2020 in a village near Hubballi. She has further stated that they stayed in Bangalore, Delhi and Ghaziyabad together. She has not alleged any sexual assault by the petitioner. She has stated that the petitioner has not kidnapped her and that she made a 7 phone call to him and went along with him. The victim is aged 15 years 10 months and she is of the age of understanding and knowing the consequences of her act.
7. It is well settled that matters to be considered in an application for bail are:
"(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with; and 8
(viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused."
8. In a decision reported in (2018) 3 SCC 22 in the case of Dataram Singh v. State of Uttara Pradesh and Another, the Hon'ble Apex Court held as under:
"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to 9 have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society."
9. In the present case, investigation is completed and charge sheet has been filed. No grounds have been made out by the prosecution that the custodial interrogation of the petitioner is necessary. There are no criminal antecedents of the petitioner. The petitioner is the resident of the address shown in the cause title and the same is not disputed. The main objection of the prosecution is that in the event of granting bail, petitioner is likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set right by imposing stringent conditions.
10. 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 10 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/accused shall be released on bail in Crime No.28/2020 of Hanumasagar Police Station subject to the following conditions:
i) The petitioner/accused shall execute a personal bond for a sum of Rs.1,00,000/-
(Rupees one lakh rupees only) with one surety for the like sum to the satisfaction of the jurisdictional Court. Due to COVID-19, the petitioner/accused 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/accused shall not indulge in tampering the prosecution witnesses. 11
iii) The petitioner/accused shall not leave the jurisdiction of the Trial Court/Sessions court without prior permission till the disposal of the case.
iv) The petitioner/accused shall appear before the Court regularly and co-operate with the Court in speedy disposal of the case.
Sd/-
JUDGE kmv