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2015 DIGILAW 837 (KAR)

Siddhartha v. State of Karnataka

2015-07-31

K.N.PHANEENDRA

body2015
ORDER 1. The petitioner has approached this Court for grant of bail in connection with Crime No. 70 of 2015 of Hokrana Police, for the offences U/Section 344, 345, 347, 365, 366, 367, 368, 370(2) R/w Section 34 of IPC. 2. The allegation against the petitioner is that he abducted and took away the daughter of the complainant by name Kavita wife of Gopal Chikale of Ganeshpur (U) village long back. It is stated in the complaint that on 2.11.2014 the husband of said Kavita by name Gopal has lodged a missing complaint stating that his wife and daughter were missing from his house and he has also distributed some hand bills in this regard. After 34 days from 2.11.2014, he came to know that this petitioner by persuading said Kavita, took her to Mumbai and has been keeping her in his house by wrongfully confining her and making use of her for the purpose of prostitution, for his wrongful gain. Therefore, it appears, the father of said lady Kavita lodged a complaint on 6.6.2015 stating that complainant and others went to the house of this petitioner in search of Kavita at Ghatkopar area, Mumbai on 5.6.2015 and found, the petitioner and also the daughter of the complainant Kavita in the said house. On the information given by the complainant, immediately police have secured the said lady and taken custody of the petitioner. The petitioner was produced before the jurisdictional Court on 6.6.2014 and remanded to judicial custody. 3. The remand application filed before the Court dated 6.6.2015 does not establish whether the police have recorded statement of the said Kavita as on the date of securing her and whether the police have conducted any investigation in this regard to ascertain as to whether the petitioner has abducted her or taken her to Mumbai for the purpose of any illicit human trafficking. 4. The petitioner has approached for bail before the Sessions Judge, Bidar in Criminal Misc. No. 516 of 2015. The learned Sessions Judge has observed that the offences are serious in nature and the investigation is still under progress. Therefore, the bail petition deserves to be rejected. Even it appears, during the pendency of the said petition, the police have not produced any materials to show that what are the materials collected by them particularly any statement of the victim lady. Therefore, the bail petition deserves to be rejected. Even it appears, during the pendency of the said petition, the police have not produced any materials to show that what are the materials collected by them particularly any statement of the victim lady. There is no material to show that the Court has perused the case diary and then passed the order. In all the cases, where petitions are filed U/Section 439 of Cr. P.C. during the pendency of the investigation, the prosecuting agency has to produce the connecting materials to show the involvement of the accused in the crime or it is the duty of the Court to secure the case diary to ascertain whether there are any strong materials against the accused in order to curtail his right of liberty and keep him in prison for such period during the investigation. This appears to have not been done by the learned Sessions Judge, nor the investigating agency has produced the case diary before the Court. 5. Before this Court also, the Court questioned the learned Addl. SPP as to whether any case diary is available or any information is available regarding the said victim lady Kavita being examined by the police or any statement is recorded. The learned Addl. SPP submitted before this Court with all responsibility that he has made request to the investigating officer to furnish all the necessary materials along with the case diary in order to appraise the Court about the nature of the investigation done, also the stage of investigation and incriminating materials collected against the accused. But, Addl. SPP submitted that the investigating officer except furnishing a copy of the FIR has neither furnished any materials nor he has given any information as to whether the statement of the victim is recorded or not. Therefore, it throws suspicion in the conduct of the investigating agency as to whether right from 6.6.2015 even after securing the presence of the said lady, any statement of the said lady has been recorded and if so why that has not been produced before the Court and why the same is suppressed. 6. The Court is not in a position to ascertain at this stage, whether said lady voluntarily went along with the petitioner, because it is a matter of not one or two days, she was alleged to be with the petitioner along with her kid. 6. The Court is not in a position to ascertain at this stage, whether said lady voluntarily went along with the petitioner, because it is a matter of not one or two days, she was alleged to be with the petitioner along with her kid. It is the specific allegation that from 2.11.2014 itself, this lady was missing from their house along with her small kid. Whether there was any affair between the petitioner and the said lady or whether they went together to live happily with each other at Mumbai and what is the conduct of this petitioner and whether he is a habitual offender involved himself in human trafficking are all the facts not disclosed to the Court by producing the case diary. 7. The Addl. SPP became helpless before the Court because of the non assistance by the investigating officer in time. Therefore, this Court is of the opinion that non production of the case diary and not giving any information to the Court with regard to the stage of investigation and the materials collected against the accused, that itself is sufficient for grant of bail to the petitioner. Because it goes without saying that the prosecution has not shown to the Court any connecting materials against the accused except the FIR. The FIR does not disclose anything about the previous conduct of the petitioner and the victim lady and also what transpired after the said lady left her husband’s house etc., It is right time that the Court has to give some direction to the Head of the Police institution that particularly in the cases where the petitions are filed U/Section 439 Cr. P.C., when the right of liberty of a person guaranteed under the constitution has to be curtailed by the Court or by the prosecution by keeping the person in custody during the pendency of the investigation or even after filing of the charge sheet, the police have to assist the prosecuting agency in the Court particularly the Public Prosecutors and High Court Government Pleaders by furnishing all the necessary case file to the Government Advocates so as to enable them to properly defend the cases before the Court and also appraise the Court with regard to the available connecting materials against the accused to pass appropriate orders. Otherwise, inspite of absence of any connecting materials against the accused, if the custody of the accused is continued, it will definitely violate the liberty of a citizen which is a valid right recognized under the Constitution of India. 8. Therefore, I feel, it is just and necessary to direct the office to send a copy of this order to Director General of Police, State of Karnataka with a direction to take appropriate action against concerned persons in this case in particular and in general to instruct all the investigating officers to take care in such cases and assist the Prosecutors and Government Advocates with all necessary papers in order to defend or to contest the bail petitions filed before the Courts of Law. 9. With these observations, particularly in this case observing that if the prosecuting agency has got any materials to show that the accused has committed such offences and they have got any unbeatable primafacie materials, they are at liberty to move for cancellation of the bail by producing the necessary documents before the Court, till that point of time, the right of liberty of the petitioner cannot be curtailed. Hence, I pass the following : ORDER The petition is allowed. Consequently, the petitioner shall be released on bail in connection with Crime No. 70 of 2015 of Hokrana P.S., for the offences U/Section 44, 345, 347, 365, 366, 367, 368, 370(2) R/w 34 of IPC, pending on the file of J.M.F.C. Aurad, subject to following conditions: (i) The petitioner shall execute a personal bond for a sum of Rs. 1,00,000/- (Rupees One Lakh Only) with two solvent surety for the like sum to the satisfaction of jurisdictional committal Court. (ii) The petitioner shall not indulge in hampering investigation and tampering the prosecution witnesses. (iii) The petitioner shall appear before the Investigation Officer once in a week, i.e. on every Sunday and mark his attendance between 10:00 a.m. to 05:00 p.m. for a period of two months or till the charge sheet is filed, whichever is earlier. (iv) The petitioner shall also appear before trial Court on all the future hearing dates unless prevented by any genuine cause.