Karnataka High Court
Mohammed Ali vs State Of Karnataka on 17 February, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.1157/2022
BETWEEN:
MOHAMMED ALI
S/O MOHAMMED NISAR
AGED ABOUT 37 YEARS,
R/AT NO.1130, 19TH MAIN ROAD,
J.P.NAGAR 2ND PHASE
BENGALURU-560078. ... PETITIONER
(BY SRI HANUMANTHARAYA C.H., ADVOCATE)
AND:
STATE OF KARNATAKA
BY J.P.NAGAR POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001. ... RESPONDENT
(BY SRI VINAYAKA V.S., HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 438
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
THE EVENT OF HIS ARREST IN CR.NO.175/2021 OF
JAYAPRAKASH NAGAR POLICE STATION, BENGALURU CITY, FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 376, 420 AND
506 R/W. SECTION 34 OF IPC.
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THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 438 of Cr.P.C., praying to enlarge the petitioner/accused No.1 on bail in the event of his arrest in respect of Crime No.175/2021 registered by J.P.Nagar Police Station, Bengaluru City, for the offences punishable under Sections 376, 420, 506 read with Section 34 of IPC.
2. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent/State.
3. The factual matrix of the case of the prosecution is that the police have received an email complaint on 16.09.2021, wherein, an allegation is made that this petitioner is not answering to complainant's calls and he raped her for 5 days and took money from her. In order to substantiate the same, she got the bank transaction report and now this petitioner is blackmailing her and he is planning something dangerous to her. 3 Hence, she sought for justice. Based on this complaint, the police have registered a case in Crime No.175/2021.
4. The learned counsel appearing for the petitioner would submit that based on the email complaint, a case has been registered and this petitioner has been falsely implicated in the case and the alleged incident is said to have been taken place at Delhi. Hence, the complaint ought to have given at Delhi. The Karnataka police have lacks jurisdiction to investigate the matter. The complainant also fails to give out any details regarding the place and date of incident which lasted for 5 days. The respondent - police have slept over the case for more than 4 months after registering the case without filing the charge- sheet. No statement under Section 164 of Cr.P.C., was recorded and not subjected the victim for medical examination. There is a threat of arresting in view of registering a case against the petitioner. Hence, there is no prima facie material against the petitioner and he may be enlarged on bail.
5. Per contra, the learned High Court Government Pleader appearing for the State would submit that this complaint 4 is received through email, when the notice is given to the victim through email, the complainant not responded, 164 statement was not recorded and also not subjected her for any medical examination.
6. Having heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the State and on perusal of the material available on record, no doubt, in the complaint, an allegation is made that this petitioner subjected her for rape for a period of 5 days, but the place of committing rape is not mentioned. Only this petitioner is residing in Bengaluru. Hence, a case has been registered. When there is no prima facie material, no doubt, it is the bounden duty of the Investigating Officer to register the case when the cognizable offence is alleged against the petitioner.
7. In view of the judgment of the Apex Court in the case of LALITHA KUMARI v. GOVERNMENT OF U.P. reported in (2014) 2 SCC 1, it is the duty of the Investigating Officer to register the case when the complaint is received and the same is also a concept of zero FIR and also a jurisdictional 5 free FIR. The concerned police have to transfer the same to the jurisdictional police to investigate the matter and nothing is there in the material on record except the email complaint. When such being the case and when there is no material before the Court regarding 164 statement and medical evidence and also when there is no details of where she was subjected for sexual act and also the investigation is not properly conducted invoking Section 173 and also no report is filed within the time limit when an heinous offence is alleged against the petitioner.
8. Having taken note of the material on record and particularly, the submission of the learned High Court Government Pleader that the complainant is not responded to the email request made to her for subjecting her for 164 statement as well as medical examination, I am of the opinion that it is a fit case to exercise the discretion under Section 438 of Cr.P.C., since no material is found to invoke Section 376 of IPC as on date except the complaint.
9. In view of the discussions made above, I pass the following:
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ORDER The petition is allowed. Consequently, the petitioner/accused No.1 shall be released on bail in the event of his arrest in respect of Crime No.175/2021 registered by J.P.Nagar Police Station, Bengaluru City, for the offences punishable under Sections 376, 420, 506 read with Section 34 of IPC, subject to the following conditions:-
(i) The petitioner shall surrender himself before the Investigating Officer within ten days from the date of receipt of a certified copy of this order and shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the like-sum to the satisfaction of the concerned Investigating Officer.
(ii) The petitioner shall not indulge in hampering the investigation or tampering the prosecution witnesses.
(iii) The petitioner shall co-operate with the
Investigating Officer to complete the
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investigation and he shall appear before the Investigating Officer, as and when called for.
(iv) The petitioner shall not leave the jurisdiction of the Investigating Officer without prior permission till the charge sheet is filed or for a period of three months, whichever is earlier.
(v) The petitioner shall mark his attendance once in a month i.e., on 30th of every month between 10.00 am and 5.00 pm., before the Investigating Officer for a period of three months or till the charge sheet is filed, whichever is earlier.
Sd/-
JUDGE cp*