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2020 DIGILAW 1111 (KAR)

Ashok v. State Of Karnataka

2020-06-17

ASHOK G.NIJAGANNAVAR

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JUDGMENT Ashok G. Nijagannavar, J. - This petition is filed under Section 438 of Cr.P.C., for release of the accused/petitioners on bail in the event of their arrest in Crime No.238 of 2019 of Raibag Police Station for the of fences punishable under Sections 376D, 376(2)(o) , 341, 504 and 506 read with Section 34 of IPC. 2. The facts brief ly stated are that on the complaint filed by the victim lady, the police have registered the case. The al legations are that on 28.07.2018 victim was returning from Bendawad to Mamadapur, on that evening at about 5.30 p.m. the accused/petitioners came on two motorcycles, then petitioner No.1 abused her in filthy language. Thereafter, al l petitioners have committed rape. Thereafter, whenever, the complainant came out of the house these petitioners have committed rape 10 to 12 times. Since the victim had no support she could not file complaint immediately. Later on, the advice of the members of Mahila Mandal , she has approached the police to file a complaint. On registering the case, the police of ficials are making attempts to arrest the accused/ petitioners. 3. Heard the learned counsel for the petitioners and the learned HCGP assisted by the learned counsel for the complainant. 4. The learned counsel for the petitioners submitted that on account of enmity these petitioners have been falsely implicated in this case by making false and frivolous al legations. The complainant's brother by name Babu Mutteppa Akale, Nagappa Akale, Mutteppa Akale and Siddappa Akale and complainant had committed the murder of brother of the petitioner Nos.2 and 3 namely-Basavaraj . These petitioners are the eyewitnesses and complaint; they have given the evidence in the Sessions case. Thus in order to take revenge a false complaint is registered against them. In the event of their arrest and detention, petitioners will be put to great hardships. 5. Per Contra, the learned HCGP for the State assisted by learned counsel for the complainant submitted that the accused/ petitioners have committed rape on several occasions. On account of threat given by the said accused, the victim had not filed complaint before the police. Mere delay in filing the complaint cannot be a reason for granting anticipatory bail . There are no grounds to disbelieve the averments made in the complaint. Investigation is not yet completed. On account of threat given by the said accused, the victim had not filed complaint before the police. Mere delay in filing the complaint cannot be a reason for granting anticipatory bail . There are no grounds to disbelieve the averments made in the complaint. Investigation is not yet completed. In the event of granting bail the accused may cause thereat to the victim and also tamper the prosecution witnesses. Thus, petition deserves to be rejected. 6. Having head the submissions of the learned counsel for the petitioners and learned HCGP assisted by learned counsel for the complainant, this has gone through the prosecution records available at this stage. As per the complaint averments the first instance of rape was on 28.07.2018, it is also submitted that thereafter the accused/petitioners have committed the rape on 10-12 occasions. But, whereas the complaint is filed on 28.12.2019. Thus, it is evident that there is an inordinate delay of 16 months in filing the complaint. The explanation of fered by the victim is that the said information was not disclosed on the apprehension that her husband would kil l her and also the threat given by the accused persons. It is pertinent to note that four brothers of complainant had committed the murder of Basavaraj who is the brother of petitioners Nos.2 and 3 and petitioner Nos.1 was the complainant in the said case. They being the eyewitnesses had given evidence in the Sessions case as P.W.1 and 10 and they have also supported the prosecution case. This circumstance indicates that there was an enmity between the brothers of the complainant who are the accused in the Sessions case and the petitioners who are the prosecution witnesses. The main grievance of the petitioners is that on account of the enmity these petitioners have been falsely implicated in this case. Admittedly, the complaint was filed on 28.12.2019 even after the lapse of sixteen months. The investigation is not yet completed and statement under Section 164 of Cr.P.C. is also not recorded as submitted by the learned HCGP. At this stage, it is needles to make the elaborate discussion or to give any specific findings about the records as the same is not justified while considering the bail application. 7. The investigation is not yet completed and statement under Section 164 of Cr.P.C. is also not recorded as submitted by the learned HCGP. At this stage, it is needles to make the elaborate discussion or to give any specific findings about the records as the same is not justified while considering the bail application. 7. The Hon'ble Apex Court in a decision in the case of Siddharam Satlingappa Mhetre V/s State of Maharashtra and others, (2011) 1 SCC 694 has observed as under: 112. The fol lowing factors and parameters can be taken into consideration while dealing with the anticipatory bail : i . The nature and gravi ty of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii . The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cagnizable of fence; iii . The possibility of the applicant to f lee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other of fences; v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; vi . Impact of grant of anticipatory bail particularly in cases of large magni tude af fecting a very large number of people; vii . The courts must evaluate the entire available material against the accused very careful ly. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii . While considering the prayer for grant of anticipatory bail , a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and ful linvestigation and there should be prevention of harassment, humiliation and unjusti fied detention of the accused; ix. While considering the prayer for grant of anticipatory bail , a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and ful linvestigation and there should be prevention of harassment, humiliation and unjusti fied detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shal l have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is enti tled to an order of bail . 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must careful ly examine the entire available record and particularly the al legations which have been directly attributed to the accused and these al legations are corroborated by other material and circumstances on record. 114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are onlyil lustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail . If a wise discretion is exercised by the Judge concerned, after consideration of the entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of . The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the Judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the Court of Session or the High Court is always available. 8. These factors are no means exhaustive. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the Court of Session or the High Court is always available. 8. These factors are no means exhaustive. In view of the ratio laid down in the aforesaid decision, While considering the prayer for grant of anticipatory bail , a balance has to struck between two factors, namely no prejudice should be caused to the free, fair and fullinvestigation and there should be prevention of harassment, humiliation and unjusti fied detention of the accused. In addition to that, frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. General ly, arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of the case. 9. In the instant case, the circumstances pointed out by the learned counsel goes to prove the apprehension of the petitioners regarding their arrest and detention. The main objection of the prosecution is that in the event of granting bail accused are likely to threat the prosecutrix and victim. The said objection may be set right by imposing stringent conditions. 10. Considering the facts and circumstances of the case and in view of the foregoing discussions this Court is of the view that there are valid grounds for granting bai \l . Hence, I proceed to pass the fol lowing :- ORDER The criminal petition is al lowed. The petitioners/accused Nos.1 to 3 are directed to appear before the I.O within fi fteen days from the date of receipt of copy of this bail order. In the event of their appearance, the I .O. shal l conduct interrogation on the same day. Hence, I proceed to pass the fol lowing :- ORDER The criminal petition is al lowed. The petitioners/accused Nos.1 to 3 are directed to appear before the I.O within fi fteen days from the date of receipt of copy of this bail order. In the event of their appearance, the I .O. shal l conduct interrogation on the same day. After completion of the interrogation, the petitioners shal l be enlarged on bail subject to the fol lowing conditions : i. The petitioners shal l furnish a personal bond for a sum of Rs.1,00,000/ (Rupees One Lakh only) each with two sureties for the likesum to the satisfaction of the Investigating Officer. ii . The petitioners shal l appear before the Investigating Of ficer and the Court as and when required. iii. The petitioners shall co-operate in the investigation. iv. The petitioners shal l not threaten or al lure any of the prosecution witnesses. v. The petitioners shal l give attendance every week on Sunday between 10.00 a.m. to 5.00 p.m. to the concerned Police Station till conclusion of trial. Violation of the above conditions would result in cancellation of the bail automatically.