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Karnataka High Court · body

2014 DIGILAW 74 (KAR)

Kalyan Ram Joshi v. State of Karnataka

2014-01-23

R.B.BUDIHAL

body2014
JUDGMENT 1. This petition is filed by petitioner-accused No.1 under Section 438 of Cr.P.C. seeking anticipatory bail to direct the respondent-police to release the petitioner on bail in the event of his arrest for the offences punishable under Sections 376, 420 and 506 r/w Section 34 of IPC registered in respondent-police station Crime No. 337/2013. 2. The brief facts of the case as per the averments in the complaint are that the informant has been practicing at Mysore for the past two years. Prior to this complaint, informant had filed a complaint before Mahila police station, Mysore against one Shivakumar. In the said case 'B' report was submitted. To question the said 'B' report, informant had approached accused No.2 to engage his services, where she came in contact with the petitioner herein and the said case ended in compromise. It is stated that the petitioner herein had divorced his wife for this informant and told her that he is going to marry her and would secure job for her and also would set up a house at Bangalore. The further allegation is that on 16.11.2013 at 5.30 p.m. petitioner herein said to have called the informant to Hotel Monarch situate on Mysore-Hunsur road offering her to give birthday treat. Though the informant refused, petitioner told the informant that he needs to discuss with her about the old case. Thereafter, the informant rushed to the aforesaid hotel, where the petitioner herein said to have committed rape on her and told the informant not to inform anybody and that he would marry her. When she brought this fact to the notice of petitioner's father-accused No.2, he is said to have threatened her saying that his son is innocent and has not committed any wrong and that if she files any complaint he would do away with her life. On the basis of the said complaint, a case has been registered arraying the petitioner as accused No.1 and father of the petitioner as accused No.2. 3. Heard the arguments of the learned counsel for the petitioner-accused No.1 and also the learned Government Pleader appearing for the respondent-State. 4. Learned counsel appearing for the petitioner during the course of his argument submitted that petitioner is a practicing Advocate at Mysore Bar and his father, who has arrayed as accused No.2 is also a senior advocate, practicing at Mysore Bar. 4. Learned counsel appearing for the petitioner during the course of his argument submitted that petitioner is a practicing Advocate at Mysore Bar and his father, who has arrayed as accused No.2 is also a senior advocate, practicing at Mysore Bar. Petitioner is innocent and has not at all committed the alleged offences. Only to tarnish his image, he has been falsely implicated in the case. He has submitted that even if the entire material placed by the prosecution is taken as true, it does not make out a case against the petitioner. It is further submitted that there is a delay in lodging the complaint and even the medical evidence also does not support the case of the prosecution. In the earlier occasion a similar complaint was filed against one Shivakumar, who is also a practicing Advocate at Mysore Bar and in the said case, police after investigation of the matter had filed 'B' report and the Court after giving opportunity to the complainant herein considered the objections and ultimately, accepted the 'B' report in the said case. The antecedents of the complainant goes to show that petitioner has been falsely involved in the present case. Petitioner is ready to abide by any of the conditions to be imposed by the Court and will assist the investigating officer and he will not tamper any of the prosecution witnesses. In support of his contention, learned counsel for the petitioner has relied upon the decision reported in AIR 2011 SC 312 and also the order passed by this Court in Crl.P.No.5100/2013 dated 30.8.2013. The learned counsel has also referred to the decision relied upon before the lower Court reported in 2013(4) Crimes 329 (Kar). Accordingly, he has prayed that petitioner may be admitted to bail. 5. As against this, learned Government Pleader during the course of his arguments submitted that prima facie material is placed by the prosecution to show the involvement of the petitioner in the alleged offences. Statement of the supplier of hotel Monarch has been recorded by the Investigating Officer, which shows that this petitioner had booked Room No.205 in the said hotel on 16.11.2013. Statement of the supplier of hotel Monarch has been recorded by the Investigating Officer, which shows that this petitioner had booked Room No.205 in the said hotel on 16.11.2013. He has stated that on 16.11.2013 he has seen one lady, who came to the hotel at 6.30 p.m. When he asked her as to what she wants, she replied that somebody had asked her to come there and after that, petitioner came to the hotel at about 6.45 p.m. and key of the room was handed over to him and the lady who was waiting there also went with him to the room. He has also further submitted that even as per the medical evidence there are scratch marks on the chest of the victim, which proves that petitioner has committed the alleged offences. The offence alleged under Section 376 of IPC is a serious offence. Investigation of the case is still pending and custodial interrogation of the petitioner is necessary. Hence, he has submitted that petitioner may not be admitted to bail. 6. I have perused the averments made in the bail petition, FIR, complaint and other materials produced by the petitioner along with the petition and also the order passed by the lower Court dated 3.1.2014 in Crl.Misc.No.1894/2013 on the bail application filed by the present petitioner. I have also perused the 'B' report said to have been submitted by the Woman Police Station, Mysore in Crime No.99/2010 in the case filed for the offence punishable under Section 376 r/w Section 34 of IPC, which is produced by the petitioner along with the petition. Further, I have also perused the decisions relied upon by the learned counsel for the petitioner and the principles enunciated in the said decisions. 7. It is the case of the prosecution that the alleged incident took place on 16.11.2013. But the complaint was filed on 14.12.2013 i.e., 28 days after the alleged incident. With regard to the delay caused in filing the complaint, it is the case of the prosecution that when the complainant brought the incident to the notice of the petitioner's father, he threatened her stating that his son is not of that type and if she files the complaint they will not spare her. However, the averments in the complaint, there is no mention that petitioner had threatened her that he will finish off her if she lodges the complaint. However, the averments in the complaint, there is no mention that petitioner had threatened her that he will finish off her if she lodges the complaint. 8. It is no doubt true that statement of the supplier of Monarch hotel has been recorded by the Investigating Officer during investigation. The victim has been examined by the Doctor on 16.12.2013 i.e., exactly one month after the alleged incident. The medical report dated 16.12.2013 of J.S.S. Medical college, Mysore, mentions that clothes worn on the person of the victim are not the same which were worn at the time of alleged incident. The Doctor has stated the following external injuries: (i) A nail scratch abrasion with reddish brown scab measuring 3cm x 0.1cm and present on the left side of chest 5 cm. below left clavicle. (ii) A nail scratch abrasion with brown scab measuring 0.5cmx0.1cm present on left side of chest 5cm below left clavicle. It is mentioned that the above abrasions are less than one week old. If the medical report dated 16.12.2013 is taken on its face value and if the injuries are less than one week old, then this will not support the case of the prosecution with regard to the alleged incident dated 16.11.2013. 9. I have also perused the documents produced by the learned counsel for the petitioner. On perusal of the 'B' report pertaining to the earlier Crime No.99/2010, it is seen that even in the earlier case similar allegations were made against one Shivakumar. But the police after conducting detailed investigation, filed the 'B' summary report, which was ultimately accepted by the concerned Court. Even these materials prima facie supports the contention of the petitioner herein that he has been implicated in the case. The facts and circumstances and the principle enunciated in the decisions referred to above also support the contention of the petitioner herein. 10. It is no doubt true that the case is at the stage of investigation. But the material produced by the prosecution, does not prima facie show the commission of the alleged offence by the petitioner herein. The facts and circumstances and the principle enunciated in the decisions referred to above also support the contention of the petitioner herein. 10. It is no doubt true that the case is at the stage of investigation. But the material produced by the prosecution, does not prima facie show the commission of the alleged offence by the petitioner herein. As it is contended that petitioner is a practicing Advocate at Mysore, so also accused No.2, the father of the petitioner, is also a practicing Advocate at Mysore, so far as the apprehension of the prosecution that he may abscond and may tamper the prosecution witnesses, reasonable conditions may be imposed, which will safeguard the interest of the prosecution. The entire materials on record and its cumulative effect is appreciated at this stage, I am of the opinion that it is a fit case to exercise discretion in favour of the petitioner. 11. Accordingly, petition is allowed. Respondent- police are directed to release the petitioner-accused No.1 on bail in the event of his arrest for the offences punishable under Sections 376, 420 and 506 r/w Section 34 of IPC registered in respondent-police station Crime No.337/2013, subject to the following conditions:- I. Petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) and shall furnish a solvent surety for the like sum to the satisfaction of the concerned Court. II. He shall not tamper with any of the prosecution witnesses, directly or indirectly. III. He shall make himself available to the Investigating Officer for interrogation whenever called for. IV. He shall appear before the concerned Court within 30 days from the date of receipt of this order and shall execute personal bond and surety bond.