Karnataka High Court
Sri Santosh Dundappa Magadum vs The State Of Karnataka on 14 November, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 103105 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 103105 OF 2022 (439-)
BETWEEN:
SRI SANTOSH DUNDAPPA MAGADUM
AGE: 28 YEARS, OCC: DRIVER,
R/O. BIDROLLI, TQ. CHIKKODI,
DIST. BELAGAVI, PIN-591226
...PETITIONER
(BY SRI. CHETAN T LIMBIKAI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH PSI CHIKKODI
POLICE STATION,
REPTD BY SPL. PUBLIC PROSECUTOR,
SPP OFFICE, HIGH COURT OF KARNATAKA
DHARWAD BENCH-580011
2. VITTAL SIDDAPPA BABALESHWAR
AGE: 41 YEARS, OCC: AGRICULTRUE,
R/O. BIDAROLLI, TQ. CHIKKODI
DIST. BELAGAVI-591226
...RESPONDENTS
(SRI. PRASHANTH V. MOGALI, HCGP FOR R1;
R2 - SERVED)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
SEEKING TO ENLARGE THE PETITIONER/ACCUSED ON BAIL ON
SUCH TERMS AND CONDITIONS AS DEEMS FIT BY THIS HON BLE
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CRL.P No. 103105 of 2022
COURT IN CHIKKODI P.S. CRIME NO.86/2022, PENDING BEFORE
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI,, FOR THE
OFFENCES PUNISHABLE U/S 363, 344, 323, 376(2) (n), 201 OF IPC
AND SECTION 4 AND 6 OF POCSO ACT, 2012.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the sole accused under Section 439 of Cr.P.C., seeking bail in Crime No.86/2022 of Chikkodi police station, registered for the offences punishable under Sections 363, 344, 323, 376(2)(n), 201 of IPC and Sections 4 and 6 of POCSO Act, 2012.
2. The case of the prosecution is that, the father of the victim-girl has filed complaint stating that, his daughter victim-girl aged 17 years 8 months 15 days is studying in PUC Arts 2nd year. It is further stated that, on 23.04.2022, at about 10.30 a.m., she went to the college to collect the hall ticket and did not return from the college and her mobile phone was switched off. He enquired with his friends and relatives and searched for her and did not trace her. He lodged complaint and the same came to be registered in Chikkodi police station Crime No.86/2022 for -3- CRL.P No. 103105 of 2022 the offences punishable under Section 363 of IPC against the unknown person. The police after the investigation has filed charge-sheet against the petitioner for the offences punishable under Sections 363, 344, 323, 376(2)(n), 201 IPC and Sections 4 and 6 of POCSO Act. The petitioner came to be arrested on 30.05.2022 and he is in judicial custody. The petitioner filed Criminal Misc. No.924/2022 seeking bail and the same came to be rejected by the Addl. District and Sessions Judge, FTSC-I, Belagavi, by order dated 12.08.2022. Therefore, the petitioner is before this Court seeking bail.
3. Heard the arguments of the learned counsel for the petitioner and the learned HCGP for the respondent- State.
4. Respondent No.2 even after service of notice, did not choose to appear, either in-person or through counsel.
5. Learned counsel for the petitioner would contend that, the victim-girl was in love affair with this -4- CRL.P No. 103105 of 2022 petitioner and she voluntarily went along with him and stayed with him in Bidadi, Bengaluru for a period of one month and did not raise any hue and cry. It is his further submission that, the victim-girl has given her statement before the police and also before the Magistrate under Section 164 of Cr.P.C., at the instance of her parents. It is his further submission that, the Doctor who examined the victim-girl has noted history wherein, she has stated that there was no intercourse at that time. It is his further submission that, when the victim-girl has stayed with the petitioner she used to go along with him for work and she has not made any efforts to escape from the clutches of this petitioner itself shows that, she had love affair with this petitioner and she voluntarily stayed with him. It is his further submission that, the Doctor who examined the victim-girl has not given his final opinion and it is kept pending till the receipt of FSL report. The petitioner is aged 28 years and he is a Driver by occupation and if he is kept in prison, he will come in contact with hard core criminals. The petitioner is ready to abide by the terms -5- CRL.P No. 103105 of 2022 and conditions to be imposed by this Court. As the charge- sheet is filed, the petitioner is not required for custodial interrogation. With this, he prayed to allow the petition.
6. Per contra, learned HCGP would contend that, the date of birth of the victim-girl as per her school record is 07.08.2004. The Doctor who examined the victim-girl has opined that her dental age is between 14 to 16 years and there is no external genital examination, as the victim-girl was not willing as she had menses. It is his further submission that, the victim-girl in her statements has clearly stated the force used by this petitioner on her and taking her by giving threat and having forcible sexual intercourse on her. The charge-sheet material shows prima-facie case against this petitioner for the offences alleged against him. If the petitioner is granted bail, he will threaten the complainant and other prosecution witnesses. With this, he prayed to reject the petition.
7. Having heard the learned counsel for the petitioner and the learned HCGP, this Court has gone -6- CRL.P No. 103105 of 2022 through the charge-sheet records and the order passed by the Sessions Court.
8. The date of birth of the victim-girl as per school record is 07.08.2004 and she is aged 17 years, 08 months and 15 days as on the date of the alleged offence. The victim-girl went missing on 23.04.2022 and her father filed missing complaint on 29.04.2022. The victim-girl and this petitioner were secured on 30.05.2022 from Bidadi, Bengaluru. The statement of the victim-girl has been recorded by the police and also under Section 164 of Cr.P.C. The victim-girl stayed with this petitioner from 23.04.2022 till 30.05.2022 for more than one month. The victim-girl has not raised any hue and cry at that time and she has also not made any attempt to escape from the clutches of this petitioner. The victim-girl has given history before the Doctor who examined her that, there is no intercourse on her. The Doctor has not given any final opinion and it is kept pending till the receipt of FSL report. As the charge-sheet is filed, the petitioner is not required for custodial interrogation. The victim-girl is of the age of -7- CRL.P No. 103105 of 2022 understanding the consequences of her acts. There are no criminal antecedents of this petitioner. The petitioner is aged 28 years and if he is kept in prison, he will come in contact with the hard core criminals. The main objection of the prosecution is that, if the petitioner is granted bail, he will threaten 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:
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.86/2022 of Chikkodi Police Station, subject to the following conditions:-8- CRL.P No. 103105 of 2022
i) The petitioner/accused 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 shall not indulge in tampering the prosecution witnesses.
iii) The petitioner/accused 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.: 1 Sl No.: 11