Karnataka High Court
Nazeer vs State Of Karnataka By on 1 June, 2018
Equivalent citations: AIRONLINE 2018 KAR 258
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JUNE 2018
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.2750/2018
BETWEEN:
Nazeer S/o Abdulla,
Aged about 39 years,
Residing at No. 280/1,
7th Main, Bahubalinagar,
Jalahalli,
Bangalore City-560064. ...Petitioner
(By Sri. N.S.Sanjay Gowda, Adv.)
AND:
State of Karnataka by
Yelahanka Police Station,
Bangalore-560064.
Represented by
State Public Prosecutor,
High Court of Karnataka,
Bengaluru-560001. ... Respondent
(By Sri.S.Vishwamurthy, HCGP.)
This Criminal Petition is filed under Section 439 of
Cr.P.C., praying that this Hon'ble Court may be pleased to
enlarge the petitioner on bail in Crime No. 17/2018 (Special
Case No.184/2018) of Yelahanka Police Station, Bangalore
City for the offence P/U/S 8 and 12 of Protection of Children
from Sexual Offences Act.
2
This Criminal Petition coming on for Order this day, the
Court passed the following:
ORDER
This petition is filed on behalf of the sole accused against whom charge sheet is laid under Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (herein after called as POCSO Act).
2. Heard the learned counsel for the petitioner and the learned High Court Government pleader. Learned High Court Government Pleader has not filed any statement of objections, but has orally opposed the petition.
3. Initially the petitioner had approached this Court seeking bail under Section 439 of Cr.P.C. By order dated 20.02.2018 in Crl.P.No.1137/2018 the said petition was disposed of with a liberty to the petitioner to move the concerned Court immediately after the completion of investigation and filing of the 3 final report. On completion of the investigation a renewed application for bail was filed before the LIII Additional City Civil and Sessions Judge at Bengaluru and by order dated 04.04.2018, the learned Sessions judge dismissed the petition on the ground that the material produced by the prosecuting investigating agency prima facie establishes that the victim was subjected to sexual assault and the victim being of tender age there is likelihood of the petitioner threatening or prevailing upon the victim.
4. The learned counsel for the petitioner submits that the entire case is fabricated since the petitioner who was running a cricket coaching academy had demanded fees from the parents of the victim boy. Further the learned counsel has drawn my attention to the statement of the victim recorded under Section 161 of Cr.P.C. and the statement given by the victim under Section 164 of Cr.P.C. The 4 learned counsel would submit that the statement recorded under Section 164 is inconsistent with the statement recorded under Section 161 which itself indicates that false evidence has been fabricated and also false charge sheet is foisted against the petitioner. Further he would submit that the offences alleged against the petitioner are punishable with a sentence for a maximum period of five years. The petitioner is a married person. He is already punished without there being any specific material against him and hence it is not proper to extend his custody of the petitioner solely by way of punishment.
5. The learned High Court Government Pleader however opposes the petition. He would submit that there is no inconsistency whatsoever in the statements of the victim. In both the statements the victim has narrated the acts committed by the petitioner which squarely attract the offences 5 punishable under Sections 8 and 12 of the POCSO Act. More over, the victim being a minor likelihood of the petitioner threatening or prevailing cannot be ruled out. Hence he prays for rejection of the petition.
6. Considering the submissions and on perusal of the charge sheet papers, it is noticed that there is striking discrepancy in the statements of the victim which give rise to doubt as to whether the allegations made against the petitioner attracting the offence punishable under Sections 8 of the POCSO Act. In his statement under Section 164 of Cr.P.C. the victim has merely stated that on the date of the incident the petitioner took him to GKVK campus in his car and asked him to be with him. The further statement reads as follows:
" £ÀAvÀgÀ ¥Éöæ ʪÉÃmï ¥Ámïð£ÀÄß ¨Á¬ÄAiÀÄ°è EqÀĪÀAvÉ ºÉýzÀgÀÄ. ¸ÀAeÉ 7-20PÉÌ ªÀÄ£ÉUÉ ©nÖzÁÝ£.É "6
This statement is in conformity with the contents of the complaint lodged at the earliest instance, the relevant portion of which reads as under:
"On the way back home Nazeer took Pranav to GKVK campus and asked Pranav to put Nazeer's private parts in his mouth. When Pranav refused he said, if you are friendly with me I will make you to play in IPL and you could become a very big cricket player."
Thus it could be seen that in his statement under Section 164 as well as in the complaint lodged at the earliest instance there are no allegations of any physical act. Section 7 of the POCSO Act defines sexual assault as under:
"7. Sexual Assault - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, 7 or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
7. The complaint and the Section 164 statement merely states that the petitioner asked the minor boy to put his private part in his mouth which was refused by the boy. There are no allegations that the victim put the private part of the petitioner in his mouth. Under the said circumstances, the applicability of the provisions of Section 8 of the POCSO Act is doubtful.
8. In so far as the allegations made in the complaint as well as in the statement under Section 164 attracting the provisions of Section 11 of the Act are concerned, it is necessary to note that the offence under Section 12 of the Act is punishable with imprisonment which may extend up to three years. 8 Moreover, the investigation has been completed and the petitioner has been in custody for nearly four and a half month. In the said circumstances the custody of the petitioner is not necessary to be extended. In so far as the apprehension expressed by the prosecution regarding the likelihood of the petitioner threatening or prevailing upon the victim boy is concerned, the same could be allayed by imposing necessary conditions. Hence the following order.
ORDER The petition is allowed.
(i) The petitioner is directed to be enlarged on bail on furnishing a bond in a sum Rs.2,00,000/- (Rupees Two Lakh only) with two sureties for the likesum to the satisfaction of the trial Court and subject to the further conditions that -9
(i) The petitioner shall appear before the Court as and when required.
(ii) The petitioner shall not
threaten or allure the prosecution
witnesses including the victim and his parents in whatsoever manner.
(iii) The petitioner shall not get
himself involved in any similar
offences.
In the event, any of the above conditions are violated, the respondent is at liberty to seek for cancellation of the bail.
Sd/-
JUDGE ykl/HA