Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1639 (KAR)

Nagalingappa v. State Of Karnataka

2020-09-02

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by the petitioner-accused under Section 439 of Cr.P.C. seeking bail in Crime No.68/2019 of Bevoor Police Station registered for the offence punishable under 448, 450, 376, 506, 201 IPC and Sections 4 & 6 of POCSO Act, 2012. 2. The case of the prosecution in brief is that on 20.06.2019, victim has filed the written complaint before the Bevoor Police. On the basis of which the case was registered against the petitioner-accused for the aforesaid offences. The complainant has stated that she came in contact with petitioner during the Dasara festival prior to the date of filing complaint and thereafter petitioner started to talk with her. On 14.10.2017 at 3 p.m. the petitioner-accused came to her house and told her that he intended to marry her and had sexual intercourse with her against her will. After the alleged incident the petitioner used to threaten her and forced her not to tell about this incident to anyone. Thereafter, whenever the petitioner gets the opportunity he used to talk with her and had sexual intercourse with her for 3-4 time at his house and at his photo studio. After one year of this incident complainant consumed the poison and at that time she informed these incidents to her family members thereafter her family members called the petitioner-accused and advised him and at that time petitioner told that he is intended to marry her after she attained the majority. It is further alleged that in the year 2019 evening the petitioner took the complainant to the Kustagi and took her to lodge and had sexual intercourse with her. Thereafter lastly on 07.04.2019 he had forcible sexual intercourse with her at victim's house. She further stated that she is pregnant by five months and when she asked him to marry, he refused to marry her. Therefore, she had filed the said complaint. The petitioner was arrested on 21.06.2019. After investigation, the Police have filed the charge sheet. The petitioner earlier filed the bail application before this Court in Crl.P.No.101977/2019 and the same was rejected on 27.11.2019. The petitioner is now seeking bail on new ground. 3. Heard the learned counsel for the petitioner-accused and learned HCGP for respondent-State. 4. The petitioner was arrested on 21.06.2019. After investigation, the Police have filed the charge sheet. The petitioner earlier filed the bail application before this Court in Crl.P.No.101977/2019 and the same was rejected on 27.11.2019. The petitioner is now seeking bail on new ground. 3. Heard the learned counsel for the petitioner-accused and learned HCGP for respondent-State. 4. It is the submission of the learned counsel for the petitioner-accused that the petitioner-accused has availed housing loan from M/s Fullerton India Credit Company Ltd. And he could not pay the installments of the said housing loan as he has in judicial custody and now arbitral award has been passed on 27.12.2019 and his house property is brought for auction. It is her further submission that the cognizance was taken on 22.08.2019 and the charge has been framed on 31.01.2020 but the evidence of the victim has not been recorded within 30 days of the taking of cognizance as required under Section 35(1) of the POCSO Act, 2012. It is her further submission that the parents of the petitioner-accused are old aged persons and they are suffering from old age ailments and it is the petitioner who has to look after them. With this she prayed to allow the petition. 5. Per contra, the learned HCGP contended that victim girl was aged 17 years 8 months as on the date of incident. It is his further submission that victim girl in her statement recorded under Section 164 Cr.P.C. has clearly stated the acts of forcible sexual inter course of petitioner with her and she became pregnant. It is his further submission that bail application of the petitioner has been rejected by this Court and the petitioner has not made out any new ground for grant of bail. With this, he prays to reject the bail petition. 6. Having regard to the submission made by the learned counsel for the petitioner-accused and the learned HCGP, this Court has gone through charge sheet records and documents produced by the petitioner's counsel. This Court has rejected the bail petition of the petitioner on 27.11.2019 in Crl.P.No.101977/2019. The said order has been passed on considering the merits and the charge sheet papers. The petitioner is now seeking bail on new ground. This Court has rejected the bail petition of the petitioner on 27.11.2019 in Crl.P.No.101977/2019. The said order has been passed on considering the merits and the charge sheet papers. The petitioner is now seeking bail on new ground. The petitioner has availed housing loan from M/s Fullerton India Credit Company Ltd. As the petitioner did not repay the housing loan, the Arbitration proceedings were initiated and Arbitration Award has been passed on 27.12.2019 directing the petitioner and others (his Parents) to pay a sum of Rs.4,08,480/- with future interest at the rate of 21% per annum. The petitioner-accused has produced two photographs of the house wherein the notice has been written on the compound wall regarding initiation of auction of the said house. The parents of the petitioners are residing in the said house and if it is auctioned then they will come to street. As the petitioner is in judicial custody, it is not possible for him to protect his property unless he is released on bail. 7. Even though cognizance is taken on 22.08.2019 and charge has been framed on 31.01.2020, the evidence of the victim girl has not been recorded as required under Section 35(1) of the POCSO Act, 2012. 8. In the case of Vinay V/s State of Karnataka by Keregodu Police, Mandya District, (2017) 4 KCCR 3159 , this Court has given direction for strict compliance of Section 35(1) of POCSO Act,2012. 9. Under the said facts and circumstances of the case and submission of the counsel for the petitioner-accused this Court is of the considered view that there are valid grounds for grant of bail subject to conditions. Hence, I pass the following. ORDER The petition filed under Section 439 of Cr.P.C. is allowed. The petitioner-accused shall be released on bail in Crime No.68/2019 of Bevoor Police Station, subject to the following conditions. i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (one lakh rupees only) with one surety for the like sum to the satisfaction of the jurisdictional Court. In view of Covid-19 petitioner is permitted to furnish surety within two months. If circumstances arise, jurisdictional court is permitted to extend the time for furnishing surety. ii) The petitioner shall not indulge in tampering the prosecution witnesses in any manner. iii) The petitioner shall appear before the Court regularly and cooperate in speedy disposal of the case.