JUDGMENT N K Sudhindrarao, J. - This matter is taken up through Video Conference today. 2. Learned counsel Sri.Adinarayanappa, for petitioner and Sri.K.Nageshwarappa, learned HCGP for respondent are present. 3. The petition is filed under Section 439 of Cr.P.C. wherein the petitioner seeks grant of bail in respect of Crime No.246/2019 registered by the respondent Police initially for the offence punishable under Section 363 of IPC. However, on completion of investigation, the final report was filed for the offences punishable under Section 376(3) of IPC and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012. 4. Previously, the petitioner had made application before the learned Principal District and Sessions Judge, Bangalore in Spl.Case No.116/2019 under Section 439 of Cr.P.C. and that came to be dismissed on 18.3.2020. Hence, this petition. 5. Copy of the petition is served on learned HCGP for respondent. 6. Heard. 7. The substance of the complaint as could be seen from the records is that the complainant- Chandpasha, is the father of the victim. He has four children and the victim is said to be the first daughter. On 8.12.2019, the complainant and his wife had gone to the house of their relatives and their children were at home including the victim. At about 2.30 p.m. Afrid, the accused, who is the brother of wife of Pheeru Khan, resident of Hindiganahala Village came near the house of the victim in a car and forcibly took the victim. The incident was informed to the complainant by one Soyil. Therefore, the complainant came home and saw that his daughter was not at home. In this connection, the complainant went to Pheeru Khan and enquired. Pheeru Khan replied that he would secure Afrid and the victim girl within 2 days. But despite completion of 3 days, the victim girl was not secured. Therefore, the complainant lodged complaint and it was registered in Crime No.246/2019 for the offence punishable under Section 363 of IPC. 8. Learned counsel for the petitioner would submit that the complaint is lodged only to blackmail the accused. The complaint is lodged on 11.12.2019 i.e., after 3 days from the incident. The petitioner was arrested on 17.12.2019. He further submits that the petitioner is innocent of the offences alleged against him. The petitioner and the victim girl were in love with each other. The complaint is lodged on 11.12.2019 i.e., after 3 days from the incident. The petitioner was arrested on 17.12.2019. He further submits that the petitioner is innocent of the offences alleged against him. The petitioner and the victim girl were in love with each other. He has neither kidnapped nor raped the victim girl and it is clear from the reading of the complaint that the complaint is filed due to personal vengeance by the complainant. He would also submit that there was consent from the family for the marriage of the petitioner and the victim girl. The petitioner is in judicial custody due to false implication. Hence, he prays for grant of bail. 9. The learned HCGP submits that the petitioner has no regards and respect for the law. If the petitioner is enlarged on bail, he is likely to threaten to the life of the victim girl. Hence, he is not entitled to be released on bail. 10. As could be seen from the records and submission more particularly the FIR, the incident is stated to have occurred on 8.12.2019. The complaint came to be lodged on 11.12.2019. The very delay of 3 days in lodging the complaint establishes the malafides of the complainant and the police. After the completion of the investigation, the final report came to be filed. 11. In the statement of the victim girl recorded on 17.12.2019 under Section 161 of Cr.P.C., she states that her date of birth is 18.4.2004. She is the elder daughter of the complainant. The accused used to come for drinking tea to a nearby bakery now and then and he used to signal her and try to speak to her. One day he gave his mobile number to her and asked to telephone him. Thereafter, one day, she made a phone call from her mother's mobile to the number given by the accused. The accused introduced that his name his Afrid and he is in love with her. Thereafter, the victim girl also started to love him. When this fact came to the knowledge of the parents of the victim, they started searching a groom for the victim. Later, the victim informed about the same to the accused and in reply the accused had warned the victim that he would not allow anyone to marry her and asked her to come with him. When this fact came to the knowledge of the parents of the victim, they started searching a groom for the victim. Later, the victim informed about the same to the accused and in reply the accused had warned the victim that he would not allow anyone to marry her and asked her to come with him. Accordingly, on 8.12.2019 at 4.00 p.m. they both got into a car and got down near the Santhe Gate and again got into a private bus and reached Bangalore and again went to Salem. They kept on wandering from place to place. The accused had assured her that he would not leave her and used to touch her body in inappropriate places. They had slept near Dargah from 9.12.2019 to 15.12.2019. Later they came back to Bangalore. They begged in Dargah to perform their marriage and as she was still minor, the authorities of Dargah refused to perform their marriage. Later they came to know that a police complaint has been lodged against the accused. Thereafter, the accused brought the victim girl from Bangalore to Jangamakote on 16.12.2019 and stayed in his relative's house and slept their together, wherein he touched her body in inappropriate places and had sexual intercourse 2 to 3 times without her consent on the pretext of marrying her. On 17.12.2019 when the accused and victim girl were staying in the grandmother's house of the accused at Jangamakote, the father of the victim and uncle Iliyas came along with the police and took them to the police station. Before the police, the victim girl has stated that on the pretext of marrying her, the accused forcibly took her along with him and touched her body in inappropriate places and stayed in his grandmother's house and where he had sexual intercourse with her without her consent. From the reading of the above statement of the victim, it could be seen that there is variation in the stand of the victim. 12. It is necessary to extract portion of the observations made by the learned District Judge at paragraph-9 of its order dated 18.3.2020. The same is extracted hereunder: "9. From the reading of the above statement of the victim, it could be seen that there is variation in the stand of the victim. 12. It is necessary to extract portion of the observations made by the learned District Judge at paragraph-9 of its order dated 18.3.2020. The same is extracted hereunder: "9. On careful perusal of the entire charge sheet and relevant materials as well as the statement recorded by the Investigation Officer pertaining to the victim girl reflects that the accused herein forcibly taken her along with him and also committed the office of rape on her. No doubt in the statement she has stated that both of them were fallen in love with each other. On the basis of the promise given by the accused herein, she left the home, but on careful scrutiny of the entire record it goes to show that the victim is minor as on the date of alleged incident. The study certificate issued by the Head Master of the Vinayaka Primary and High School where the victim girl was studied reflects that she born on 18.4.2004. the incident occurred as per the police record on 8.12.2019. As on that day, the victim girl was minor. The consent of the victim girl for kidnap & physical contact has no consequences in the eyes of law. By considering the entire police record i.e., charge sheet and other relevant materials it goes to show that investigation is completed, but Investigation Officer has taken necessary steps for recording of the victim girl statement u/s.164 Cr.P.C. by way of submitting representation before the Jurisdictional Magistrate. The representation dated 9.3.2020 also furnished by the complainant police through prosecution, it reflects that the jurisdictional magistrate has fixed the date on 3.4.2020 for recording of the statement of the victim girl u/s.164 of Cr.P.C. As such, the statement of the victim girl u/s. 164 of Cr.P.C. which is mandatory in nature as per the provisions of the POCSO Act not yet recorded. Learned counsel for the accused on 16.3.2020 made submission to pass necessary order on application filed by the accused u/s.439 of Cr.P.C. In view of the submission made by the counsel for the accused, it is posted for orders on 18.3.2020. Learned counsel for the accused on 16.3.2020 made submission to pass necessary order on application filed by the accused u/s.439 of Cr.P.C. In view of the submission made by the counsel for the accused, it is posted for orders on 18.3.2020. When the statement of the victim girl u/s.164 of Cr.P.C. nor yet recorded till the date of order on the application, under such circumstances, if the accused released on bail he may threaten the victim girl or influence her, as such it need not necessary to enlarge the accused on bail at this stage. By considering all this facts at this stage, I answer the above point in the negative and proceed to pass the following order: ORDER The application filed by the accused u/sec.439 of Cr.P.C. is hereby rejected." 13. Thus, it could be seen that the Investigating Officer has already submitted the charge sheet on 27.1.2020. The statement of the victim girl under Section 164 of Cr.P.C. is not recorded. The conduct of the Investigating Officer with reference to not following the procedure is necessary to be noted. The final report is filed without the 164 statement of the victim girl. The learned Magistrate observes the same in its order that the Investigating officer has not recorded the statement of the victim girl under section 164 of Cr.P.C. which is mandatory as per the provisions of the POCSO Act. Hence, giving representation to the learned Magistrate, obtaining the date for recording 164 statement and meanwhile submitting the final report without 164 statement of the victim girl is deplorable. 14. In this view of the matter and considering the facts and circumstances of the case and more particularly considering that the petitioner is stated to be in judicial custody from 17.12.2019, I find there is no interference to investigation by the petitioner, nor is it the case of the complainant. Further, presence of the ingredients of offence will have to be assessed during the full fledged trial of the case and in the present circumstances of the case, I have also considered the adversity created by pandemic Covid- 19. 15. In the over all circumstances, if the petitioner is enlarged on bail no prejudice will be caused to the prosecution. However, the apprehension of the prosecution could be resolved by imposing suitable conditions. 16. Accordingly, petition is allowed. 15. In the over all circumstances, if the petitioner is enlarged on bail no prejudice will be caused to the prosecution. However, the apprehension of the prosecution could be resolved by imposing suitable conditions. 16. Accordingly, petition is allowed. Petitioner is hereby released on bail in respect of Cr.No.246/2019 registered by the respondent-police, subject to the following conditions: i) The petitioner-accused shall execute a personal bond for Rs.2,00,000/- with a surety of a person possessing immovable properties for the likesum. ii) The petitioner-accused shall not terrorize the witnesses or tamper with the prosecution witnesses in any manner. iii) The petitioner-accused shall mark his attendance before the Investigating Officer of the above case on every Saturday between 7.00 p.m. to 8:00 p.m. until further orders by the trial Court. iv) The petitioner-accused shall not move out of State of Karnataka without prior permission of the trial Court until further orders. v) The petitioner-accused shall not come into contact with any of prosecution witnesses. vi) The petitioner shall undergo medical check-up immediately upon his release on bail, by a medical officer and quarantine himself exclusively in his house for a period of 14 days from the date of release unless he is required for hospitalization to prevent further complications regard being had to the fact of Covid-19.