Karnataka High Court
Shri Anand S/O Madhukar Ghatage vs The State Of Karnataka on 6 December, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
CRL.P No. 103595 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 103595 OF 2022 (439-)
BETWEEN:
SHRI ANAND S/O. MADHUKAR GHATAGE
AGE: 31 YEARS, OCC: X-RAY TECHNICIAN
R/O: KUDACHI, TQ. RAIBAG
DIST. BELAGAVI-591311
...PETITIONER
(BY SRI. S.M.MUCHHANDI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THE POLICE INSPECTOR KUDACHI POLICE STATION
TQ. RAIBAG, DIST. BELAGAVI-591311,
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA,
AT DHARWAD BENCH DHARWD-580011
2. ABDUL ALIAS ABDUL HUSSAIN S/O NOORAHEMAD
MEVEGAR
AGE: 59 YEARS, OCC: MASON
R/O. JUNEDIA MOHALLA
RAMABAI COLONY
SAGARNAGAR, KUDACHI
TQ. RAIBAG DIST. BELAGAVI-591311
...RESPONDENTS
-2-
CRL.P No. 103595 of 2022
(SRI. PRASHANT V. MOGALI, HCGP FOR R1;
SRI. A.D.NADAF, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
SEEKING TO THE PETITION BE ALLOWED AND THE
PETITIONER/ACCUSED NO.1 MAY BE ENLARGED ON REGULAR BAIL
KUDACHI P.S. CRIME NO.82/2022 U/S 366(A), 376(2)(N), 506 R/W
34 OF IPC AND SECTION 4 6 AND 17 OF POCSO ACT, PENDING
TRIAL IN SPL.CASE NO.221/2022, ON THE FILE OF ADDITIONAL
DISTRICT AND SESSIONS JUDGE, FTSC-I, BELAGAVI.
THIS PETITION/APPEAL COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the accused No.1 under Section 439 of Cr.P.C., seeking bail in Crime No.82/2022 of Kudachi Police Station, punishable under Sections 366A, 376(2)(n), 506 read with Section 34 of IPC and Sections 4, 6 and 17 of POCSO Act, pending in Special Case No.221/2022 on the file of the Additional District and Sessions Judge, FTSC-1, Belagavi.
2. The case of the prosecution is that, the victim- girl is aged 16 years 11 months, has filed complaint stating that, she is studying in II PUC and she knows the petitioner/accused No.1 and his land is near her house. Accused No.1 is running X-ray centre and providing books -3- CRL.P No. 103595 of 2022 to her. It is further stated that, about one month prior to the filing of the complaint, she had gone to the X-ray centre of the petitioner to bring books, at that time, he gave her water to drink and she after drinking the water became unconscious and when she gained consciousness she came to know that, her dresses were removed and has been sexually assaulted. She asked the petitioner and he told that, he is having her necked photos and videos with him and if she informs the same to anyone, he will release the said photos and videos to others. So she did not informed the same to anyone. It is further stated that, on 19.07.2022, when the victim had gone to college in the morning and while returning, she started getting giddiness and at about 10.00 a.m., the petitioner/accused No.1 came in a white car along with accused Nos.2 and 3 and all of them together took her in the car and reached Chinchali circle. The people gathered there, made her to get down from the car and accused Nos.1 to 4 escaped from the spot. The victim-girl went home and informed her parents and elders in the community and the elders told -4- CRL.P No. 103595 of 2022 her to give complaint and she filed complaint. The said complaint came to be registered in Kudachi Police Station in Crime No.82/2022 for the offences punishable under Sections 366A, 376(2)(n), 506 read with Section 34 of IPC and Sections 4, 6 & 17 of POCSO Act. The police during the investigation arrested this petitioner on 19.07.2022 and after completing the investigation filed charge-sheet against the petitioner and three others for the offences under Sections 366A, 376(2)(n), 506 read with Section 34 of IPC and Sections 4, 6 & 17 of POCSO Act and the case is pending in Special Case No.221/2022 on the file of the Addl. District and Sessions Judge, FTSC-1, Belagavi. The petitioner filed Criminal Misc. No.1440/2022 seeking bail and the same came to be rejected by the Additional District and Sessions Judge, FTSC-1, Belagavi, by order dated 07.11.2022. Therefore, the petitioner is before this Court seeking bail.
3. Heard the arguments of the learned counsel for the petitioner, learned HCGP for the respondent No.1 and the learned counsel for the respondent No.2. -5- CRL.P No. 103595 of 2022
4. Learned counsel for the petitioner would contend that, the alleged complaint filed by the victim-girl is at the instance of her parents who intended to break the love affair between the petitioner and the victim-girl. It is his further submission that, the call details records of the victim-girl reveal that, she herself has made several calls during March 2022 and July 2022 and she had talks with this petitioner and the same itself shows that, she is having love affair with this petitioner. It is his further submission that, the victim-girl earlier has stated that, the petitioner/accused No.1 has taken photos and videos and sent the same to her, but subsequently she has stated that, no photos or videos were sent to her. The mobile phone of the petitioner which was seized on examination did not contain photos or videos of the victim-girl. The date of birth of the victim-girl is 31.07.2005. She is aged 16 years 11 months and the Doctor who examined her has opined that, her dental age is between 18-19 years and skeletal age is more than 18 and less than 20 years. The victim-girl is of the age of understanding the -6- CRL.P No. 103595 of 2022 consequences of her acts. As the charge-sheet is filed, the petitioner is not required for custodial interrogation. With this, he prayed to allow the petition.
5. Per contra, learned HCGP would contend that, the date of birth of the victim-girl is 31.07.2005 a per her SSLC marks card. The Doctor who examined her, has noted that her hymen is not intact and there is a old tear. The voluntary statement of the petitioner reveals the acts of having sexual intercourse with the victim-girl. The charge-sheet material shows prima-facie case against the petitioner for the offences alleged against him. With this, he prayed to reject the petition.
6. Learned counsel for the respondent No.2 would contend that, the statement of C.W.11 reveal that, the victim-girl was saved by them when she was kidnapped by the petitioner and three others in a car. The Sessions/Special Court by considering the merits of the case and by considering the presumption under Section 29 of the POCSO Act, has rightly rejected the bail petition of -7- CRL.P No. 103595 of 2022 the petitioner. The offence alleged against this petitioner is a heinous offence. If the petitioner is granted bail, there is threat to the complainant and other prosecution witnesses. With this, he prayed to reject the petition.
7. Having regard to the submissions made by the learned counsel for the petitioner, learned counsel for the respondent No.2 and learned HCGP for the respondent No.1-State, this Court has gone through the charge-sheet records and the order passed by the Sessions Court.
8. The complaint is filed by the victim-girl on 19.07.2022. The alleged act of sexual intercourse has taken place on 10.07.2022. There is no any complaint in between 10.07.2022 and 19.07.2022. The mobile phone of the petitioner has been seized and on examination, it did not contain any obscene photos and videos of the victim- girl as stated by her. As per the averments of the complaint and statement of the victim-girl she is closely acquainted with this petitioner. The date of birth of the victim-girl as per her school records is 31.07.2005 and as -8- CRL.P No. 103595 of 2022 per the Doctor who examined her, her age is between 18- 19 years as per the dental estimation and more than 18 years and less than 20 years as per skeletal examination. The victim-girl is of the age of understanding the consequences of her acts. The call details of the mobile phone of the victim-girl reveal that, she made several calls to this petitioner during March 2022 to July 2022 that itself shows that there is a love affair between the victim-girl and this petitioner. As the charge-sheet is filed, the petitioner is not required for custodial interrogation. The apprehension of the prosecution is that, if the petitioner is granted bail, there is a threat to the complainant and other prosecution witnesses. The said objection can be met with by imposing stringent conditions.
9. 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 certain terms and conditions. Hence, I proceed to pass the following:
-9-CRL.P No. 103595 of 2022
ORDER The petition filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioner/accused No.1 shall be released on bail in Crime No.82/2022 of Kudachi Police Station subject to the following conditions:
i) The petitioner/accused No.1 shall execute a personal bond for a sum of Rs.1,00,000/-
(Rupees one lakh only) with one surety for the likesum to the satisfaction of the jurisdictional Court.
ii) The petitioner/accused No.1 shall not indulge in tampering the prosecution witnesses.
iii) The petitioner/accused No.1 shall attend the Court on all the dates of hearing unless exempted and co-operate in speedy disposal of the case.
Sd/-
JUDGE SVH List No.: 2 Sl No.: 4