Karnataka High Court
Kaushik Mitra Chowdhury vs The State Of Karnataka on 12 March, 2014
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF MARCH 2014
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION No.1258/2014
BETWEEN:
Kaushik Mitra Chowdhury,
S/o. PLrasanta Mitra Chowdhury,
Age: 38 years,
Occ: Sr. Software Developer,
No.1-2-382/3,
Sri. Sai Apartments,
Flat No.201 (F1), Domalguda,
Hyderabad-500 029. .. PETITIONER
(By Sri. Chandramouli. H.S, Adv.)
AND:
The State of Karnataka,
By the Police of
Byappanahalli Police Station
Bangalore City-500 029. .. RESPONDENT
(By Sri. K. Nageshwarappa, HCGP)
This criminal petition is filed under Section 438 of the
Cr.P.C. praying to enlarge the petitioner on bail in the event
of his arrest in Cr. No.311/2013 of Byappanahalli P.S.,
Bangalore City, for the offences punishable under Sections
376, 420 of IPC.
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This petition coming on for Orders this day, the Court
made the following :
ORDER
This petition is filed by the petitioner-accused No.1 under Section 438 of Cr.P.C. seeking a direction to the respondent police that in the event of his arrest, he be released on bail of the offences punishable under Sections 376 and 420 of IPC registered in respondent Police Station Crime No.311/2013.
2. Brief facts of the case of the prosecution are that during 2009, the parents of the informant were looking for a suitable marital alliance for the informant. During June or July 2009, the parents of the informant came across a matrimonial advertisement in Ananda Bazar Pathrika News paper and in response to the said advertisement, they contacted accused No.2/father of the petitioner over the phone and after discussion, all the three accused persons came to Bangalore on 14.08.2009 and visited the house of father of informant. On the same day, betrothal ceremony between the petitioner and the informant took place exchanging the gold rings that was bought by the father of 3 the informant and also by exchanging the garlands. The said ceremony was held with the consent of elders of both the families. On the same day, at about 7.00 PM, the parents of the informant as well as the parents of the petitioner left for shopping and during that time the informant and the petitioner were at home. At about 8-00 PM, the petitioner had sexual intercourse with the informant under the threat that if she does not oblige to his advances, he would cancel the marriage itself. Since, she was threatened, she could not give the complaint immediately as the petitioner had promised her to marry. On the basis of the said complaint, the case was registered by the respondent police.
3. I have heard the learned Counsel appearing for the petitioner-accused No.1 and the learned High Court Government Pleader appearing for the respondent-State.
4. Learned Counsel for the petitioner, during the course of the arguments, submitted that the petitioner has not at all committed the alleged act of forcible sexual intercourse on the complainant. False allegations have been 4 made against the petitioner for extraneous consideration. The learned Counsel submitted that even according to the averments made in the complaint that the after performing engagement at 7.00 p.m. on the same day, the family members of both the petitioner and complainant went to purchase the articles, the complainant and the petitioner were in the house and the petitioner committed forcible sexual intercourse on her is unnatural and it is very difficult to believe the said allegation. The learned counsel submitted that so far as the alleged act of sexual intercourse on the complainant is concerned, the complaint was lodged after a lapse for 4½ years from the date of betrothal ceremony. Hence, it is submitted that only on this ground, the story of the prosecution can be disbelieved. It is submitted that in the bail petition, it is clearly mentioned that because of the abnormal conduct and behaviour of the complainant herself, the engagement was cancelled and dissolved in the year 2009 itself. The petitioner got married with another girl in the year 2010. For a period of 4½ years, the complainant kept quiet and now she has filed the present complaint. This itself goes to show false implication of the petitioner in the 5 alleged offence. The learned counsel relied upon SMS and e- mail sent and submitted that the materials produced by the petitioner also supports the contention of the petitioner that because of such behaviour of the complainant, the marriage was cancelled. He also submitted that the petitioner is working for a software company. He is ready to co-operate the investigation machinery and any conditions may be imposed for his appearance before the investigation machinery. Hence, he submitted that even in another case, this Court considered the ground of delay and the case of prosecution was not considered to be prima facie. In that particular case, this Court has granted bail to the accused persons. Therefore, he submitted that in the present case, the petitioner is in better position so far as the bail is concerned and by imposing reasonable conditions, he may be admitted to bail.
5. As against this, learned High Court Government Pleader appearing for the respondent-State, during the course of the arguments, submitted that so far as the delay is concerned, it is well established particularly in sexual 6 matters, the victim as well as members of the family of the victim are not expected to immediately go to the police station and lodge the complaint as prestige and honour of the family will beat stake. Initially, the members of the family have to take a decision as to whether they have to approach police or not. He submitted that in this case as the youngest sister of the complainant was also unmarried, the family members were thinking seriously to take decision whether lodge or not to the complaint immediately before the police. Therefore, he submitted that only on the ground of delay, the entire case of the prosecution cannot be ignored and brushed aside, when otherwise, there is prima facie case made out by the prosecution. In this connection, the learned HCGP relied upon the decision of the Hon'ble Supreme Court in case of STATE OF PUNJAB VS. GURMIT SINGH AND OTHERS reported in AIR 1996 SC 1393, wherein it is held as under:
" In Sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the presecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of 7 her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Even if there is some delay in lodging FIR in respect of offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter."
6. The learned HCGP submitted that the engagement of the complainant with the petitioner is undisputed fact and it is admitted even according to the petitioner. However, the reason for dissolution/cancellation of the said engagement has to be satisfactorily explained by the petitioner. So far as the averments made in the bail petition is concerned, no such explanation is forthcoming. He submitted that looking to the medical report itself, the Doctor has opined that the hymen was absent. Hence, he submitted that all these materials together with the statement made by the complainant in her complaint that when herself as well as the petitioner were present in the house, he posed threat that if she does not agree for the sexual intercourse, he is going to cancel the engagement itself. It is because of this threat and duress, the complainant agreed to have such 8 sexual intercourse and it cannot be with her free volition and consent. He further submitted that looking to the materials on record, it is clear that the prosecution has made out prima facie case about involvement of the petitioner so far as commission of the forcible sexual intercourse on the complainant. Hence, in view of these materials, it is necessary for the investigating machinery to have interrogation of the petitioner and if bail is granted, the investigating machinery may not be having such opportunity to extract information. Therefore, it is submitted that it is not a fit case for bail and sought for dismissal of the bail petition.
7. I have perused the averments made in the bail petition, FIR, complaint, photographs and the other materials on record. I have also perused the order passed by the lower court on the bail application and the decision relied on by the learned HCGP in support of his contention, which is referred to above. I have further perused the order passed by this Court in another case while considering the 9 application for bail of the alleged offence under Section 376 of IPC.
8. I have perused the factual aspect and also the principles laid down by the Hon'ble Supreme Court in the reported decision cited by the learned HCGP so far as the delay in lodging the complaint in cases of sexual offences is concerned. Considering the case on hand, the delay in this particular case is not considered to be an ordinary delay. There is inordinate delay of 4½ years in lodging the complaint of alleged offence of forcible sexual offence said to have been committed on the complainant. It is no doubt true and there is no dispute with regard to submission made by the learned HCGP that definitely, in such matters, there will be some delay in taking decision that the members of the family have to approach the police or to disclose the same before any other person as honour and prestige of the family is involved. But lodging the complaint after a prolonged period of 4½ years which is happened in this case is considered to be an inordinate delay.
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9. Apart from that, in the bail petition, so far as the engagement is concerned, there is no suppression by the petitioner regarding betrothal ceremony held in the year 2009. He has further pleaded that because of abnormal conduct so also disturbed behaviour of the complainant, the engagement was cancelled and dissolved in the year 2009 itself. Any how, the averments made in the petition are to be ascertained by the trial court during trial.
10. So far as the petition for grant of bail is concerned, the petitioner has pleaded in his petition and he has denied that he has committed forcible intercourse on the victim girl. He has also undertaken that he is ready to abide by the conditions that may be imposed by this Court. The apprehension of the prosecution as submitted by the learned HCGP that if bail is granted, the petitioner may abscond and he may not be available for investigation and even he may tamper the witnesses is concerned, stringent conditions can be imposed on the petitioner for admitting him to bail. Therefore, looking to the materials on record so also inordinate delay in lodging the complaint of the incident 11 which is alleged to have taken place in the year 2009, I am of the opinion that it is a fit case to exercise discretion in favour of the petitioner and admit him on anticipatory bail.
11. Accordingly, the petition is allowed. The respondent police are directed to release the petitioner on bail in the event of his arrest for the offences punishable under Sections 376 and 420 of IPC registered in Crime No.311/2013 subject to the following conditions:
I. The petitioner shall execute a bond for a sum of Rs.1,00,000/- (Rupees one lakh only) and shall offer two solvent sureties for the likesum to the concerned Magistrate Court.
II. The petitioner shall appear before the
investigating officer for the purpose of
interrogation, whenever called upon to do so. III. The petitioner shall not intimidate or tamper with prosecution witnesses, directly or indirectly.
IV. The petitioner shall attend before the respondent police station once in a fortnight, particularly on Sunday between 10.00 a.m. and 12.00 noon till completion of investigation.
V. The petitioner shall appear before the concerned Magistrate Court within thirty days from the date of 12 this order and shall execute personal bond as well as surety bond.
12. In view of the disposal of main petition, I.A. No.1/2014 does not survive for consideration. It is accordingly dismissed.
Sd/-
JUDGE Cs/-