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2017 DIGILAW 1622 (KAR)

Wasim S/o Mulakasab Maniyar v. State of Karnataka

2017-12-06

N.K.SUDHINDRARAO

body2017
ORDER : 1. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent Police. 2. The petition is filed under Section 439 of Cr.P.C. seeking to enlarge the petitioner on bail in Cr.No.32/2017 of Indi Rural Police Station, registered for the offences punishable under Sections 366, 376(2) (i) (j), 465 R/w Section 34 of IPC along with Section 4 and 6 of POCSO Act. 3. The case was originally registered in crime No.18/2017, for the offence punishable under Section 363 of IPC and later by virtue of investigation it was transformed to offences punishable under Sections 366, 376(2) (i) (j), 465 R/w Section 34 of IPC along with Section 4 and 6 of POCSO Act. 4. It was submitted that the earlier application filed by Wasim for his release on bail came to be rejected on 16.11.2017, by the learned Additional Sessions Judge, Vijayapura, who is also Special Judge constituted under POCSO Act. 5. The brief facts of the case is as under: The substance of the complaint is that on 31.03.2017, the accused Waseem kidnapped the victim girl from her house at Ingalagi village and had taken her to Vijayapura and from there to Bangalore and to Ramnagar and there kept in a room situated near godown of the company namely Arvind Garments in which the petitioner was working. Further, on 01.04.2017, in night hours petitioner had sexual intercourse with her and continued it for 25 days. Further, after knowing the fact that a complaint has been filed against the petitioner, in order to save him from criminal case, petitioner and accused have tried to create documents showing that victim girl is more than 18 years and also created false documents that she has converted to Islam religion and also through her free will married the petitioner. Further, they have created Aadhaar Card in the name of victim girl as Mariyamm Sultana W/o Waseem Mulaka Maniyar. Hence, the case came to be registered. 6. The crux of the allegation is that the accused kidnapped the victim girl who was aged about 17 years 10 months on the date of her being kidnapped by the petitioner and thereafter went out of Indi. It is also seen that she renounced her religion and converted to Islam religion. Hence, the case came to be registered. 6. The crux of the allegation is that the accused kidnapped the victim girl who was aged about 17 years 10 months on the date of her being kidnapped by the petitioner and thereafter went out of Indi. It is also seen that she renounced her religion and converted to Islam religion. During the investigation the victim girl also gave her declaration before the learned JMFC, Indi under Section 164 of Cr.P.C. and the copy of the same is made available and I have perused. In the said statement she states that she was in love with the accused for past five years and the matter was known to her parents and they scolded her. The petitioner went to Ram Nagar to attend the job. She telephoned him and the parents come to know of the fact and fixed her marriage with one Ravi who is an agriculturist. She informed the matter to petitioner who was at Ramnagar. He came to Indi on 31st March at 11.00 a.m. They left to Bijapur, from there to Bangalore and then to Ramnagar where they stayed for 15 days by wandering here and there. They also went to Masjid and got married. Thereafter, they returned to Bangalore, stayed there for 8-10 days. She also states that when she had gone along with the petitioner to his uncle’s house and when they said that they are married, they procured her Aadhaar card and changed her date of birth. Thus, the girl subsequent to registering a criminal case against the petitioner states that she renounced her religion, married accused and got converted to Islam and also her date of birth was changed by securing Aadhaar card. The victim in her statement states that she had fallen in love with the petitioner for the past five years (when she was 12 years 10 months old). Further she has gone on record stating that herself and the petitioner stayed in a room for several days. Her marriage also said to have been taken place in a Masjid. 7. The learned counsel for the petitioner would submit that the statement recorded under Section 164 of Cr.P.C. by the learned JMFC on 16.05.2017 the victim would absolve the liability of allegation of offending nature of the petitioner. 8. The petitioner was arrested on 7.5.2017. Her marriage also said to have been taken place in a Masjid. 7. The learned counsel for the petitioner would submit that the statement recorded under Section 164 of Cr.P.C. by the learned JMFC on 16.05.2017 the victim would absolve the liability of allegation of offending nature of the petitioner. 8. The petitioner was arrested on 7.5.2017. At this stage, it is necessary to mention that the victim was a minor at the time of the incident. Further, this lady gives her statement before the JMFC on 16.05.2017 on which date she was a minor. It is to be noticed further that so long she is a minor, her welfare comes within the domain of POCSO Act and that she cannot veto the same and absolute the entire investigation by exercising her mind against the prosecution. The matter was not under a trial. The Court makes it clear that the marriage of the victim or the statement absolving the liability of the accused petitioner are not considered. It is to be seen that the complainant cannot assume that she holds vetoing power over the adjudication of the criminal case against the accused. 9. In the circumstances, during investigation or afterwards, any amount of favourable statement by the victim either before the police under Section 161 or before the Magistrate under Section 164 or has a grievance, which aims to subvert the provisions of substantial and procedural law and the accused staying in judicial custody is of no avail to him. In the circumstances, the bail petition filed under Section 439 of Cr.P.C. is devoid of merits and the same is liable to be rejected. The petition filed under Section 439 of Cr.P.C. is hereby rejected.