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Karnataka High Court · body

2020 DIGILAW 59 (KAR)

Wilson And Others v. State Of Karnataka

2020-01-07

H.B.PRABHAKARA SASTRY

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JUDGMENT 1. The petitioners in Criminal Petition No.201591/2019 have sought for the relief of anticipatory bail under Section 438 of Code of Criminal Procedure (hereinafter for brevity referred to as Cr.P.C.), whereas the petitioners in Criminal Petition No.201592/2019, have sought for the relief of regular bail under Section 439 of Cr.P.C. The petitioners in both these petitions have sought for the relief of bail in Crime No.60/2019 of M.B.Nagar Police Station, Kalaburagi, pending in Special Case POCSO No.77/2019, on the file of learned II Addl. Sessions Judge, Kalaburagi, for the offences punishable under Sections 363(A), 376(2)(n), 506 of Indian Penal Code, (hereinafter for brevity referred to as IPC), and Sections 4, 6, 10 and 21 of Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as POCSO Act), and Sections 9 and 10 of Prohibition of Child Marriage Act, 2006. 2. The summary of the case of the prosecution is that CW-2 is the minor daughter of CW-1 the complainant and is aged about seventeen years. The accused No.1 had developed intimacy with the said CW-2/victim girl and was constantly proposing to marry him. In that regard, on 6.6.2019, at about 10.00 a.m., accused No.1 some how managed to summon and get the victim girl to Chalukya Lodge, Kalaburagi and with the help of accused Nos.6 and 7, got a room leased for him in the said Lodge. In the said room of the Lodge, accused No.1 enticing the victim girl that he would marry her, had sexual intercourse with her. Thereafter, he put life threat to the parents of the victim girl in case the incident is disclosed to anybody by the girl. 3. It is the further case of the prosecution that, subsequently on 24.8.2019 also, in the morning at about 9.30 a.m., the accused No.1 could able to get the victim girl to the very same Lodge through accused Nos.2, 4 and 5 and putting the victim girl under threat, all the four accused joined together have performed the marriage of the victim girl with accused No.1. 4. 4. It is also the case of the prosecution that thereafter on 26.8.2019, in the morning at 8.00 a.m., while the victim girl was going to the college from her house, accused No.1 forcibly took her to a distant place called Pathanchur in Telangana State, where his distant relative i.e., accused No.3 was residing in a house. With his help, he lodged in the said place for about two days i.e., from 26.8.2019 to 28.8.2019, at which point of time also, accused No.1 subjected the victim girl to sexual assault and committed rape upon her. Thereafter, accused No.3 helped accused No.1 in getting a rented room just behind his house, where also, the accused No.1 continued his act of committing rape upon the victim girl. With these allegations in the charge sheet, the complainant-Police have filed the charge sheet against all the seven accused. 5. Since both these petitions have arisen out of single crime, with the consent from both side, a common argument was heard and the matter is taken up for final disposal. 6. Learned counsel for the petitioners in both these petitions submitted that even if the contents of the charge sheet is taken on its face value, still, the entire allegations are levelled only against accused No.1. Even according to the charge sheet, the allegation made against accused Nos.4 and 5, who are the petitioners in Criminal Petition No.201591, is only that they helped accused No.1 is getting married the alleged victim girl. Except that, no other allegations are made against accused Nos.4 and 5. 7. Learned counsel further submitted that, with respect to accused Nos.2 and 3, who are the petitioners in Criminal Petition No.201592/2019, no serious allegations have been made. Accused No.2 is said to have participated in the marriage of the victim girl with accused No.1 and the other accused i.e., accused No.3 is said to have enabled accused No.1 in getting an accommodation at Pathanchur in Telangana State. Stating so, learned counsel submitted that, considering the fact that the investigation has already been completed and charge sheet also has been filed, the continuation of accused Nos.2 and 3 in judicial custody would not serve any purpose. Simultaneously, in the absence of any recovery to be made at the instance of accused Nos.4 and 5, their apprehension by the respondent-Police is also not warranted. 8. Simultaneously, in the absence of any recovery to be made at the instance of accused Nos.4 and 5, their apprehension by the respondent-Police is also not warranted. 8. Learned High Court Government Pleader who has filed his statement of objections in both the petitions submits that the Investigating Officer has collected incriminating materials against the accused and that enlarging the accused on bail would lead in causing delay in the trial. However, he concedes that all the allegations are levelled only against accused No.1. 9. A careful perusal of the materials placed before this Court at this stage and prima facie would go to show that the allegations made in the complaint by none else than the father of the victim girl, as well the contents of the charge sheet are mainly targeted accused No.1 for all the alleged acts. The serious offence of Sections 363(A), 376(2)(n), 506 of IPC and Sections 4, 6, 10 and 21 of POCSO Act, are all appears to have been mainly concentrated upon accused No.1. 10. With respect to accused Nos.4 and 5, the only allegation which could be noticed at this stage is that they arranged for the marriage of the victim girl with accused No.1. Similarly, as against accused No.3, as could be seen at this stage, the only allegation is about he accommodated accused No.1 and CW-2 in his house at Pathanchur in Telangana State. How this act of accused Nos.2, 3, 4 and 5 also involves in the alleged serious offences punishable under Section 363(A), 376(2)(n), 506 of IPC and Sections 4, 6, 10 and 21 of POCSO Act, has to be considered and analysed only in the full-fledged trial. 11. Admittedly, the investigation has already been completed and even according to the prosecution, the continuation of accused Nos.2 and 3 in judicial custody is not required and also the apprehension of accused Nos.4 and 5 is also not required since there is no recovery to be made at their instance. 12. Though the learned High Court Government Pleader expressed his apprehension of accused/petitioners absconding from the trial, the same can be checked by imposing suitable conditions. 13. Accordingly, I proceed to pass the following order : ORDER Both the Criminal Petitions are allowed. 12. Though the learned High Court Government Pleader expressed his apprehension of accused/petitioners absconding from the trial, the same can be checked by imposing suitable conditions. 13. Accordingly, I proceed to pass the following order : ORDER Both the Criminal Petitions are allowed. In case the complainant-police apprehends the petitioners in Criminal Petition No.201591/2019, namely, Wilson, son of Pundalik Bavu and Akash @ Paras, in Crime No.60/2019 of M.B.Nagar Police Station, Kalaburagi, pending in Special Case POCSO No.77/2019, on the file of learned II Addl.Sessions Judge, Kalaburagi, for the offences punishable under Section 363(A), 376(2)(n), 506 of IPC and Sections 4, 6, 10 and 21 of POCSO Act and Sections 9 and 10 of Prohibition of Child Marriage Act, 2006, they be enlarged on bail, subject to the conditions : i) That each of the petitioners shall execute a personal bond for sum of Rs.50,000/- with two local solvent sureties for the likesum to the satisfaction of the enlarging authority/Court. ii) The petitioners shall appear before the Court where Special Case is pending, voluntarily within ten days from today and continue to appear before the Court on all the dates of hearing. iii) The petitioners shall not hamper and tamper the prosecution witnesses in any manner. iv) The petitioners shall keep informing the Investigating Officer, as well the Special Court in writing about the changes in their addresses, if any, and obtain an acknowledgement in that regard. The petitioners in Criminal Petition No.201592/2019, namely Sachin, son of Bakkappa Kamble and Anil @ Anilkumar, son of Sharanappa Kamble, be enlarged on bail in Crime No.60/2019 of M.B.Nagar Police Station, Kalaburagi, pending in Special Case POCSO No.77/2019, on the file of learned II Addl.Sessions Judge, Kalaburagi, for the offences punishable under Section 363(A), 376(2)(n), 506 of IPC and Sections 4, 6, 10 and 21 of POCSO Act and Sections 9 and 10 of Prohibition of Child Marriage Act, subject to the following conditions: i) That each of the petitioners shall execute a personal bond for sum of Rs.50,000/- with two local solvent sureties for the likesum to the satisfaction of the enlarging authority/Court. ii) They shall appear before the Court on all the dates of hearing. iii) They shall not hamper or tamper the prosecution witnesses and documents in any manner. ii) They shall appear before the Court on all the dates of hearing. iii) They shall not hamper or tamper the prosecution witnesses and documents in any manner. iv) The petitioners to give in writing about the change in their address, if any, to the Investigating Officer as and when such change occurs and obtain acknowledgement in that regard.