Karnataka High Court
Ismail S/O Lalhmed Shaikh vs The State Of Karnataka on 23 July, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF JULY, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL PETITION No.200273/2020
BETWEEN:
ISMAIL S/O LALHMED SHAIKH
AGE: 27 YEARS OCC: PRIVATE SERVICE
R/O: PLOT NO.25, ADARSH NAGAR, SHELAGI SOUTH,
SOLAPUR-413 001, MAHARASHTRA
...PETITIONER
(BY SHRI R. S. LAGALI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH THE SHO, ALMEL P.S.
REP. BY THE ADDL. STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585 103.
... RESPONDENT
(BY SRI MALLIKARJUN SAHUKAR, HCGP)
THIS PETITION IS FILED UNDER SECTION 439 OF
CRIMINAL PROCEDURE CODE PRAYING TO ALLOW THIS
BAIL PETITION AND ORDER TO RELEASE THE PETITIONER
ON BAIL IN SPECIAL CASE (POCSO) NO.3/2020 (ARISING
OUT OF ALMEL POLICE STATION IN CRIME NO.97/2016)
PENDING ON THE FILE OF II ADDITIONAL SESSIONS
JUDGE AND SPECIAL JUDGE, VIJAYAPURA FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 366, 376 (2)
(n) AND 344 READ WITH SECTIONS 34 OF INDIAN PENAL
CODE AND SECTIONS 5 (L), 6, 16 AND 17 OF THE
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES
ACT.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
The petitioner has filed this petition under Section 439 of Code of Criminal Procedure seeking grant of bail in Special Case (POCSO) No.3/2020 (arising out of Almel Police Station in Crime No.97/2016) pending on the file of II Additional Sessions Judge and Special Judge, Vijayapura for the offences punishable under Sections 366, 376 (2) (n) and 344 read with Section 34 of Indian Penal Code and Sections 5 (L), 6, 16 and 17 of the Protection of Children from Sexual Offences Act (hereinafter referred as "POCSO Act").
02. The brief contention of the petitioner is that complaint was lodged on 04.06.2016 by one Siddeshwar alleging that some persons had kidnapped her daughter on 01.06.2016 and FIR.No.97/2016 came to be registered by Almel Police Station. The Investigating Officer took the investigation. It is further alleged that earlier also the complainant had filed the complaint before Jodabavi Police Station alleging that her 3 daughter was kidnapped from Devanagon village in Sindagi Taluka at the instant of petitioner. Thereafter, the police traced-out his daughter and case was settled at the intervention of the elderly persons. Again on 01.06.2016 his daughter was kidnapped. So, this case came to be registered by the Almel Police Station. On 15.05.2017 further statement of the complainant was recorded and then case is registered for the offences punishable under Sections 143, 147, 366A and 344 read with Section 149 of Indian Penal Code against petitioner and 09 others. Then after the investigation the Investigating Officer has sought inclusion of Sections 5 (L) and 6 of the POCSO Act. It is further contended in the bail petition that the petitioner is also resident of same vicinity in Solapur. The petitioner and the victim-girl were acquainted with each other since 3 to 4 years prior to the incident. On 22.05.2016 the victim-girl along with her mother had come to her maternal grandfather's house in Devanagaon village in 4 Sindagi Taluka for Lakshmi Pooja. It is further contended that on 01.06.2016 the victim-girl left her grandfather's house on the pretext of attending second call of nature and went to Sindagi Bus stand and from there to Kalaburagi Bus stand and met the petitioner. The petitioner took the victim girl to the house of accused No.2 and again accused No.2 got them a room on rental basis. The petitioner along with victim-girl started residing in the said room. The petitioner knowing full well that the victim-girl is minor had sexual intercourse with her. On 14.09.2017 the petitioner and victim-girl have married as per Mahomedan law in Shaikh Roza Darga in Kalaburagi and are living together since then as husband and wife. The police arrested the petitioner on 02.12.2019 and he is in judicial custody.
03. Petitioner has contended that the learned II Additional Sessions Judge, Vijayapura has rejected the 5 bail petition. So, petitioner has filed this petition on the ground that the petitioner has not committed any offences punishable with death or imprisonment for life. There is no circumstantial evidence against the petitioner. He was falsely implicated in the present case. It is further contended that the complainant is against the marriage of the petitioner and his daughter. It is for that reason that the complainant has filed false complaint. Earlier complaint came to be registered against unknown persons. It is further contended that victim-girl in her statement recorded under Section 164 of Code of Criminal Procedure by the Magistrate on 04.12.2019 made it clear that no offences are made out against the petitioner as alleged in the complaint. The victim-girl has categorically stated that petitioner has not subjected her to sexual intercourse prior to marriage. Her parents were forcing her to marry somebody and she has stated that she was in love with the petitioner and upon attaining the age of majority 6 she has married the petitioner out of free will on 14.09.2017. The petitioner and victim-girl are residing in Kalaburagi. There is no chance of absconding by the petitioner. The Investigating Officer has completed the investigation and filed the charge sheet. The petitioner is ready and willing to abide by any conditions and ready to furnish surety to the satisfaction of the Court. So, with these main grounds, the petitioner prays to allow the petition.
04. Per contra, the learned High Court Government Pleader has filed objections contending that the alleged offences are heinous in nature. The Investigating Officer has collected sufficient material against the instant petitioner. The victim-girl has been enticed by the petitioner and had continuous sexual penetrative intercourse with her for last 3 years. As per the medical report she is found to be pregnant. The petitioner has got changed all the documents pertaining 7 to her date of birth and got created the marriage certificate by furnishing the fake forged documents. The petitioner is not a law-abiding person. He was absconding from the year 2016. The said minor victim- girl has been forcefully got converted from her original Hindu religion to Muslim religion. If the petitioner is released on bail, he may commit similar type of offence and may tamper the prosecution witnesses. Accordingly, the learned High Court Government Pleader prayed to reject the petition.
05. Heard Sri. R. S. Lagali, learned counsel for the petitioner and Sri. Mallikarjun Sahukar, the learned High Court Government Pleader appearing for respondent - State.
06. I have perused the FIR, complaint, charge sheet and statement of witnesses, other documents and also the objections filed by the learned High Court Government Pleader. The medical report indicates that 8 the victim-girl was pregnant for about two months prior to examination i.e., on 02.12.2019. The petitioner contends that he had married to victim-girl on 14.09.2017. The learned counsel for the petitioner also brought to the notice of the Court that in the prosecution papers particularly in the remand application which is available at Page No.134 of the file the Investigating Officer himself mentioned the date of birth of victim-girl as 14.07.1999. Even if that is taken into consideration the said victim-girl was major at the time of marriage. It is also evident that during the course of her investigation in her statement under Section 164 of Code of Criminal Procedure given before the judicial magistrate, the victim-girl has denied any forcible sexual intercourse against her. Of course that is the matter to be decided at the time of trial. It is also pertinent to note that earlier the complaint was lodged against the unknown persons. Subsequently, the matter was settled. Again this complainant has filed the 9 complaint. There is no materials or records produced before the Court to show that the case has been registered against the petitioner for creating any false documents. So, at this stage, there are no materials to show that petitioner tried to create fake date of birth either or himself or the victim-girl. It is pertinent to note that petitioner is working in Kalaburagi and residing permanently in Kalaburagi.
07. It is settled principles of law that in such type of case the Court has to consider the material very carefully as it has got impact on the society. At the same time Court has to balance between interest of the society and right of the accused. The court has to consider the gravity of the offence, nature of the offence and criminal antecedent of the accused. It is settled principle of law that bail is a rule and rejection is an exception. While granting or rejecting the bail application, the Court will have to take into consider, (1) 10 the nature and seriousness of the offence, (2) character of the accused, (3) circumstances which are peculiar to accused, (4) reasonable probabilities of presence of the accused not being secured at trial, (5) reasonable apprehension of witnesses being tampered with and (6) larger interest of public or the state and similar other considerations, which arise when a court is asked to admit the accused to bail in a non-bailable offence.
08. Hence, keeping in mind the above settled principles, in my considered view it is evident that there are no materials to show any criminal antecedent against this petitioner. It is also evident that the investigation is already completed and charge sheet has been filed. The petitioner is arrested on 02.12.2019 and since then he is in judicial custody. It is contended that they are now married. The prosecution has stated that the age of the victim-girl was 17 years, when she was alleged to have been kidnap. So, these matters to be 11 thrashed out at the time of trial. At this stage the petitioner has made out a case to enlarge him on bail.
09. The apprehension of the prosecution can be meted by imposing stringent conditions on the petitioner.
10. Hence, keeping in mind the above settled principles and the material placed before this Court, in my considered view the petitioner is entitled to be enlarged on anticipatory bail. Accordingly, I proceed to pass the following...
ORDER The petition filed by the petitioner under Section 439 of Code of Criminal Procedure is allowed.
Consequently, the petitioner by name Ismail s/o Lalhmed Shaikh R/o: Plot No.25, Adarsh Nagar, Shelagi 12 South, Solapur, is ordered to be enlarged on bail, in Special Case (POCSO) No.3/2020 (arising out of Almel Police Station in Crime No.97/2016) pending on the file of II Additional Sessions Judge and Special Judge, Vijayapura for the offences punishable under Sections 366, 376 (2) (n) and 344 read with Section 34 of Indian Penal Code and Sections 5 (L), 6, 16 and 17 of the Protection of Children from Sexual Offences Act, on he executing a self bond for Rs.1,00,000/- (Rupees One Lakh) with a surety for the likesum to the satisfaction of the Court of II Additional Sessions Judge and Special Judge, Vijayapura in Special Case (POCSO) No.3/2020, on the following conditions:
i) The petitioner shall not tamper the
prosecution witnesses directly or
indirectly in any manner.
ii) The petitioner shall appear before the
concerned Court on all the dates of
hearing unless he has prevented by
genuine reasons.
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iii) The petitioner shall not commit similar offences of which he is accused or commission of which he is suspected.
iv) The petitioner shall not give any threat
to any of the prosecution witnesses or
prevent them from deposing before the
Investigating Officer or before the
Court whatever matter within their
knowledge.
v) The petitioner shall not leave the
jurisdiction of the concerned Court,
without permission of the Trial Court,
till the disposal of the case.
Sd/-
JUDGE
KJJ