Karnataka High Court
Shashibhushana. K vs The State Of Karnataka on 16 June, 2021
Author: K.Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.3865 of 2021
BETWEEN
SHASHIBHUSHANA K.
S/O. SRI KARIYAPPA,
AGED ABOUT 48 YEARS,
RESIDING AT No.174, FLAT No.5,
SRI SAI APARTMENT, CQAL LAYOUT,
SAHAKARNAGAR,
BANGALORE - 560 092.
... PETITIONER
(BY SRI I. THARANATH POOJARY, ADVOCATE)
AND
THE STATE OF KARNATAKA
REPRESENTED BY
VIDHANA SOUDHA POLICE,
BENGALURU,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF BUILDING,
BANGALORE - 560 001.
... RESPONDENT
(BY SRI B.J. ROHITH, HCGP)
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THIS CRIMINAL PETITION IS FILED UNDER
SECTION 438 OF THE CODE OF CRIMINAL
PROCEDURE, PRAYING TO ENLARGE THE PETITONER
ON BAIL IN THE EVENT OF HIS ARREST IN CRIME
No.32/2021 OF VIDHANA SOUDHA POLICE STATION,
BENGALURU CITY FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 354A, 354D, 506, 504, 120B, 376
AND 420 OF THE IPC AND SECTION 67A OF I.T. ACT.
THIS CRIMINAL PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 09.06.2021 AND
COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
This petition is filed by the petitioner-accused No.1 under Section 438 of Cr.P.C., for granting anticipatory bail in Crime No.32/2021 registered by the Vidhana Soudha Police Station for the offences punishable under Sections 354(A), 354(D), 506, 504, 120B, 376, 420 of IPC and Section 67A of Information Technology Act (for short 'I.T. Act'). 3
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent - State and perused the records.
3. Brief facts of the case of the prosecution is that on 17.04.2021 victim lady aged about 38 years, filed a complaint to the respondent-police stating that she is working at the Office of the Central GST, East Commissionerate, Domlur, Bangalore; petitioner/accused No.1 - Shashibhushana K., is working as Superintendent of Central GST, West Commissionerate, Banashankari, Bangalore; accused No.2 - Anthony Raj is working as Superintendent of Customs, Courier Cell, Air Cargo Complex, Devanahalli, Bangalore. The complainant alleges that she was employed as an Inspector of Central Excise, Service Tax and Customs Department during August, 4 2013 working under Mysore Commissionerate, she used to report directly to the Chief Commissioner of the Central Excise, Service Tax and Cumstoms, Mysore, as she was Personal Assistant to the Chief Commissioner. At that time the petitioner was also designated as Superintendent and working in the same office has showed lot of concern towards her, since both of them were from the same native place of Shivamogga. In the year 2014 she got transferred from Mysore to Shivamogga and petitioner also got transferred to Bangalore. After some days, the complainant and petitioner used to talk over the phone and petitioner proposed his love towards her and promised to marry her projecting himself as a bachelor and unmarried. It is further stated that she had visited Bangalore on 19.12.2014 for the purpose of official training and she was accommodated at Hotel 5 Parag situated at Raj Bhavan Road, Bangalore and on that day petitioner visited her room at hotel at about 8.00 p.m.; offered her some beer, as she was not willing to consume Alcohol he convinced her that it was a light beverage and made her to drink more Alcohol and she was intoxicated and by taking advantage of the same, petitioner physically intimidated with her even though she had objected. For which he replied that, anyway he is going to marry her and he does not heed to her pleadings. Accordingly both of them had sexual intercourse in that night. Thereafter she went back to Shivamogga. In January, 2015 she came to know that she was pregnant, she immediately informed petitioner on phone for which he replied that he was at official work and he cannot come over to Shivamogga immediately, but he asked her to seek medical help in terminating 6 the pregnancy as it was unplanned and much before the marriage, upon his advise she terminated the pregnancy. Thereafter on few occasions petitioner visited Shivamogga during 2015 and 2016, at that time they used to go out for Long Drives in his Car and he used to perform sexual acts in the car itself during those interactions. Later in September, 2017 as she got transferred to Bangalore and was posted as Inspector at Customs Department, at that time petitioner also posted in the adjoining Air Cargo Complex and they used to meet on regular basis and it is during this time between October 2017 until December 2018 he used to have physical and sexual relationship with her on numerous occasions. She kept on insisting for marriage as it was getting too old and he kept on assuring that they will get married shortly. Thereafter in February - 2018 there was a 7 marriage of one of their department colleagues' daughter at Udupi, petitioner took her in his car to attend the marriage along with two of his colleagues in same car. She did not attend the marriage, since she was not invited and stayed in a hotel room and the petitioner visited her room during evening at about 7 p.m., or so and performed various sexual acts including sexual intercourse on her. When she did not give consent to it, he again by giving assurance of marriage emotionally blackmailed her that he deployed against her whenever she did not whole heartedly consent to fulfill his desires.
She further stated that during December 2018 the complainant came to know that petitioner was already married and having two children and on enquiry he had informed that he has already separated from his wife and officially he is waiting for 8 divorce and he would marry her once he was legally separated. He also threatened her not to inform anyone about their relationship and expose him and also about the abortion, as he had evidences of their relationship and intimacy by way of certain photographic, video and audio recording with him. It is further stated that the petitioner threatened her that, if she would not co-operate with him and maintain a physical relationship, he would move and not keep up the promise of marriage and that also he would damage her image.
The complainant further alleges that during her relationship with him he had taken Rs.18.00 lakhs from her mother for allotment of a site, but used the money for his personal purpose. Her mother had lodged a police complaint during October, 2020 against him and other office bearer of the society after 9 which it was settled. She further stated in the complaint that, since the petitioner and his wife accused No.3 - Mrs. Pushpa Bhushan were humiliated by society members and reprimanded him for having usurped her mother's money and for having brought bad name to the society, they threatened her about circulating the personal audio clippings/recordings among others to cause damage of her reputation. They also instigated and provoked one Mr. Antony Raj
- accused No.2 and also a fellow Director of the Departmental Housing Society (Central Excise, Service Tax and Customs Housing Board Society) to sexually harass her. Therefore, she prepared to file a complaint to her superiors based upon the guidelines of one Vishaka's case and registered a complaint against petitioner. After that, accused No.2 who is the well wisher of this petitioner working in the same 10 department stated to doing sexual harassment on her and also he issued threats to her. During March, 2021 petitioner gave threat to the complainant to withdraw her complaint and she came to know that a notice was issued to him by internal Complaints' Committee. She further alleges that even though it is of with consent sexual intercourse, but based on the false promise of marriage and under threat of the deserting her if she choose to initiate any complaint against the petitioner. It is further stated that during the years 2014, 2015, 2016, 2017 and 2018 she gave consent only because she was under false impression that the petitioner would marry her and also she was under duress and under threat that he would not marry her, if she did not co-operate with him for fulfilling his wish. After realizing the truth, she was depressed. She was advised by her well wishers to forget the past as a bad 11 dream, since there would be lot of Social Stigma attacked to her who had sexual relationship without being married and move on in life by getting married and settling down in life with another man. She therefore chose to forget and forgive him for his sins but he and his accompanies have not stopped torturing her. They have circulated her photographic/audio/video clippings through electronic means and decimated her future, even until today to a point of mental breakdown while she cannot endure this trauma and sufferings misery in future. Therefore, she prayed for initiating action against the petitioner and other accused.
4. The respondent-police after registering the case trying to arrest petitioner for having committing the offences under Indian Penal Code and Information 12 Technology Act which are non-bailable. Hence, he approached the Sessions Court for bail, which came to be rejected, therefore, he is before this Court.
5. The learned counsel for petitioner vehemently contended that both the petitioner and victim are major, both are highly placed Central Government Officials. He further contended that since the victim is not minor, the act is by consent and not by force or fear and even he denied the ground of false promise of marriage. He further contended that the incident started and continued from the year 2013 to till 2018. They are continuously habitual to meet each other and the age of victim girl is 38 years and both are working as Superintendent in the Central Government Department, therefore, the question of committing rape by the petitioner does not arise and question of false promise of marriage also does not arise. The 13 adult casual sex is not an offence. He further contended that the petitioner is permanent employee working in the Central Government Department, he is ready to abide by any conditions to be imposed by this Court and prayed for granting anticipatory bail.
6. Per contra, learned High Court Government Pleader for the respondent-State seriously objected the bail petition and prayed for its dismissal.
7. Upon considering the arguments and on perusal of the records, it goes to show that admittedly the victim and petitioner are major and they are Central Government employees. The petitioner is working as Superintendent of Central GST, West Commissionerate, Banashankari, Bangalore and the victim is working at the Office of the Central GST, East 14 Commissionerate, Domlur, Bangalore. The introduction of the victim and the petitioner was in the year 2013 and the sexual assault started in the year 2014 at Bangalore. Thereafter till 2018 it was continued in Shivamogga and other various places. But the victim had not complained against the petitioner for having sexual abuse on her earlier. Learned counsel for the petitioner brought to the notice of this Court and relied upon the various judgments of the Supreme Court in the case of Pramod Suryabhan Pawar Versus The State of Maharashtra and Anr. and in the case of SIDDHARAM SATLINGAPPA MHETRE v. STATE OF MAHARASHTRA in respect of the principles for granting Anticipatory Bail. He also submitted that wife of the petitioner lodged a complaint against the very victim on 31.01.2019 at Kodigehalli Police Station. 15 The victim was summoned by the police and she has given statement to the police she has never stated anything about sexual harassment on her by the petitioner and she gave a reply on 01.02.2019. The petitioner has also given a complaint to the Commercial Street Police on 30.10.2020 for making false allegations on him that he has cheated an amount even though the amount was refunded.
8. On perusal of the records, admittedly the petitioner alleged to have been sexually assault on the victim, of course with consent as both of them are major and officers of the Central Government. Though the victim came to know about the marital status of the petitioner before 2018 itself, but no complaint has been lodged by her either for cheating or for sexual assault on her. Even in the complaint 16 she has stated that she has filed complaint against one Anthony Raj for sexual assault on her in the working place. On enquiry also she has stated that she has not lodged any complaint against this petitioner through out 2014 to 2018. On perusal of entire records, it appears, both, the petitioner and victim had sexual affairs with consent and it cannot be considered as rape as per the decision of Section 375 of the IPC when both adults having continuous consensual sex which cannot be considered as Rape. This Court will not going to the other contention regarding sexual assault on the woman in work place and conducting an Departmental enquiry. The recent judgment of the Hon'ble Supreme Court Journalist Varun Hiremath vs. State of Delhi, where the Supreme Court has held that if the man and woman are in room, man makes a request and woman 17 complies and it is stated no need to say anything more and for cancellation of the bail granted to the journalist has been dismissed by the Hon'ble Supreme Court.
9. Upon considering the entire episode narrated by the complainant against the petitioner it cannot be said that the offence alleged against the petitioner is an offence of rape. The petitioner is permanent employee of Central Government. The offence alleged is neither punishable with death or imprisonment of life.
10. Considering the facts and circumstances of the case, without expressing any opinion on the merits of the case, if the petitioner is granted bail by imposing certain conditions, no prejudice would be caused to 18 the case of the prosecution. Hence, I pass the following order:
Order The petition is allowed.
The respondent - Police are directed to release the petitioner-accused No.1 on bail in the event of his arrest Crime No.32/2021 registered by the respondent Police Station for the offence punishable under354(A), 354(D), 506, 504, 120B, 376, 420 of IPC and Section 37A of Information Technology Act, subject to the following conditions;
(i) Petitioner shall execute a personal bond
for a sum of Rs.5,00,000/- (Rupees
Five Lakhs Only) with two solvent
sureties for the like sum to the
satisfaction of the Investigating Officer;
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(ii) Petitioner shall surrender within 15
days from the date of receipt of
certified copy of this order;
(iii) Petitioner shall not indulge in similar offences strictly;
(iv) Petitioner shall not directly or indirectly tamper with any of the prosecution witnesses;
(v) Petitioner shall be deemed to be in
custody for the purpose of recovery
under Section 27 of the Indian
Evidence Act.
(vi) Petitioner shall appear before the
Investigating Officer as and when called for, for the purpose of investigation and he shall co-operate with the investigation agency without causing any delay.20
(vii) If any of the conditions is violated the prosecution is at liberty to move application for cancellation of the bail.
Sd/-
JUDGE Sbs*