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2021 DIGILAW 197 (TS)

Giddi Vinod v. State of Telangana

2021-06-25

G.SRI DEVI

body2021
ORDER : G. Sri Devi, J. 1. This criminal petition is filed, under Section 438 of the Code of Criminal Procedure, 1973, seeking to grant anticipatory bail to the petitioner herein in the event of his arrest in connection with Crime No. 194 of 2020 of Ibrahimpatnam Police Station, Jagtial District, which was initially registered under the head of Girl Missing and later section of law was altered from 'Girl Missing' to Sections 363 and 366 of I.P.C. and Section 12 of the Protection of Children from Sexual Offences Act (for short "the Act"). 2. The case of the prosecution, in brief, is that on 25.12.2020 at about 10.30 hours, the de facto complainant Takkurivari Nagamani, lodged a written complaint before the police stating that on 24.12.2020 at about 7.30 p.m., her younger daughter namely Takkurivari Latha, 17 years, left the house without informing to the inmates and did not return to house and her whereabouts are not known; that they searched for her daughter in their relatives and friends houses, but in vain and, therefore, requested to take necessary action. Basing on the said written complaint, a case in Crime No. 194 of 2020 has been registered by the Police, Ibrahimpatnam Police Station, Jagtial District, under the head of Girl Missing. During the course of investigation, on 9.1.2021 the victim girl came to the police station and on enquiry she revealed that the petitioner fell in love with her and on 24.12.2020 at 7.30 p.m. the petitioner met her at Ammakkapet Village, made a promise to marry her, kidnapped her in his car and taken her to Jagtial and on the next day he married her at Sri Sitharamula Temple, later taken her to Hyderabad. On 7.1.2021, the petitioner fled away from there by informing that he is going to convince her parents, but did not return and thereafter she informed the same to her parents. 3. Heard learned Counsel appearing for the petitioner, learned Assistant Public Prosecutor, appearing for the respondent-State and perused the record. 4. Learned Counsel for the petitioner would submit that in the complaint itself there is no allegation of kidnapping the victim girl by the petitioner, however, the police during the course of investigation has altered the section of law from 'Girl Missing' to Sections 363 and 366 of I.P.C. and Section 12 of the Act. 4. Learned Counsel for the petitioner would submit that in the complaint itself there is no allegation of kidnapping the victim girl by the petitioner, however, the police during the course of investigation has altered the section of law from 'Girl Missing' to Sections 363 and 366 of I.P.C. and Section 12 of the Act. It is further submitted that the petitioner and the victim girl are in love with each other since two years and the victim voluntarily approached the petitioner to marry her and accordingly, he married the victim on 25.12.2020 at Sitharamula Temple at Jagtial. While the investigation is pending, the petitioner and the victim girl returned home and informed the family members of the victim that the petitioner and the victim married on 25.12.2020 and they have accepted their marriage and took the victim to the police station and that the police have recorded the statement of the victim girl. It is also submitted that the statement of the victim girl under Section 164 of Cr.P.C. has been recorded by the concerned Magistrate, wherein the victim has categorically stated that she is in love with the petitioner and had voluntarily left home and married the petitioner and that they are living happily. It is also submitted that the victim as well as her parents have also given affidavits, which were filed before this Court, stating that they have no objection to grant anticipatory bail to the petitioner. It is further submitted that entire investigation has been completed and nothing is left except filing of the charge-sheet and as such there is no chance of influencing the witnesses. It is also submitted that the petitioner does not have any criminal antecedents and that the petitioner is ready to abide by any condition that may be imposed in the event of his enlargement on anticipatory bail. He relied upon the judgment of the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and others, (2011) 1 SCC 694 and the judgment of the Kerala High Court in Joy V.S. v. State of Kerala rep. by its Public Prosecutor, (2019) 1 KLT 935 . 5. He relied upon the judgment of the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and others, (2011) 1 SCC 694 and the judgment of the Kerala High Court in Joy V.S. v. State of Kerala rep. by its Public Prosecutor, (2019) 1 KLT 935 . 5. Learned Assistant Public Prosecutor representing the respondent-State opposed to grant anticipatory bail to the petitioner but, however, conceded to the fact that the statement of the victim girl under Section 164 of Cr.P.C. was recorded by the Judicial Magistrate of First Class, Korutla, wherein, the victim has stated that she voluntarily left with the petitioner. 6. In Joy V.S. v. State of Kerala rep. by Public Prosecutor (supra), while dealing with the anticipatory bail application, held as under: "11. However, the statutory presumption under Section 29 of the Act does not mean that the prosecution version has to be accepted as gospel truth in every case. The presumption does not mean that the Court cannot take into consideration the special features of a particular case. Patent absurdities or inherent infirmities or improbabilities in the prosecution version may lead to an irresistible inference of falsehood in the prosecution case. The presumption would come into play only when the prosecution is able to bring on record facts that would from the found action for the presumption. Otherwise, all that the prosecution would be required to do is to raise some allegations against the accused and to claim that the case projected by it is true. The Courts must be on guard to see that the application of the presumption, without adverting to essential facts, shall not lead to any justice. The presumption under Section 29 of the Act is not absolute. The statutory presumption would get activated or triggered only if the prosecution proves the essential basic facts. If the accused is able to create serious doubt on the veracity of the prosecution case or the accused brings on record materials which would render the prosecution version highly improbable, the presumption would get weakened. As held by the Apex Court in Siddharam Satlingappa Mhetre's case (supra), frivolity in prosecution should always be considered 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 anticipatory bail. As held by the Apex Court in Siddharam Satlingappa Mhetre's case (supra), frivolity in prosecution should always be considered 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 anticipatory bail. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. It should necessarily depend on facts and circumstances of each case in consonance with the legislative intention. 12. No doubt, the Act is a landmark legislation to prevent sexual abuse and exploitation of children. The Act intends to protect the children from offences of sexual assault, sexual harassment and pornography. Dignity of the child has been laid immense emphasis in the scheme of the legislation. But, the Court cannot turn a blind eye to undisputed facts in a case. The Courts shall honour the spirit and intent behind the legislation and at the same time guard against misuse of its provisions. 13. In the instant case, there is no allegation against the petitioner that he actually touched any private part of the victim girl. Custodial interrogation of the petitioner appears to be not necessary to have an effective investigation of the case. The prosecution has no case that-on getting bail, the petitioner would flee from justice. He has got no criminal antecedents. The prosecution has no case that the petitioner was previously involved in similar cases. The apprehension expressed by the prosecution is only that the petitioner would threaten the witnesses; tamper with the evidence, if released on bail. Such a contingency can be avoided by imposing appropriate conditions on granting bail. Considering the facts and circumstances of the case, I find that this is a fit case in which the discretion of the Court can be exercised in favour of the petitioner to grant the benefit of pre-arrest bail." 7. In the instant case also, a perusal of the material available on record would show that initially a case has been registered under the head of 'Girl Missing' and later it was altered to Sections 363 and 366 of I.P.C. and Section 12 of the Act. In the instant case also, a perusal of the material available on record would show that initially a case has been registered under the head of 'Girl Missing' and later it was altered to Sections 363 and 366 of I.P.C. and Section 12 of the Act. By an order, dated 22.4.2021, this Court while directing the prosecution to furnish the ossification test report of the victim with regard to proof of her age, to be conducted by a team of Doctors, granted interim protection to the petitioner that he shall not be arrested in connection with Crime No. 194 of 2020 till 3.6.2021 and the same was extended till 22.6.2021. The prosecution failed to furnish the ossification test report of the victim, but filed the statement of the victim recorded by the concerned Magistrate under Section 164 of Cr.P.C. The learned Counsel for the petitioner filed the affidavits of the de facto complainant, who is the mother of the victim, victim girl and her father alongwith the affidavit of the petitioner. The contents of the statement of the victim recorded under Section 164 of Cr.P.C. would disclose that she voluntarily left with the petitioner and he married her on 25.12.2020. Further, the contents of the victim also disclose that she fell in love with the petitioner and she had voluntarily left home and married him. The contents further disclose that the victim and the petitioner are living happily and herself and her family members have no objection for granting anticipatory bail to the petitioner. The contents of the affidavits of the parents of the victim also disclosed that the petitioner married the victim and they are living happily and that they have no objection for granting anticipatory bail to the petitioner. 8. For the aforesaid reasons and having regard to the facts and circumstances of the case and since the prosecution failed to furnish the ossification report of the victim and the victim had categorically stated that she had voluntarily left with the petitioner, married the petitioner and they are living happily, I am inclined to grant anticipatory bail to the petitioner. 9. 9. The criminal petition is allowed and the petitioner is directed to be released on anticipatory bail, subject to the following terms and conditions: (i) The petitioner is directed to surrender before the Station House Officer, Ibrahimpatnam Police Station, Jagtial District, within a period of fifteen days from today, and on such surrender, he shall be released on bail on his executing a personal bond to the tune of Rs. 25,000/- (Rupees Twenty five thousand only) with two sureties each to the like amount to his satisfaction. (ii) The petitioner shall personally appear before the S.H.O., Ibrahimpatnam Police Station, on 3rd Saturday of every month between 12.00 noon and 5.00 p.m., till completion of the investigation. (iii) The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such fact to the Investigating Authority. (iv) The petitioner shall not act in any manner which will be prejudicial to the fair and expeditious investigation. (v) The petitioner shall not misuse the liberty granted to him, failing which the Court concerned shall take appropriate action in accordance with law in the light of the judgment of the Apex Court in Sushila Aggarwal and others v. State (NCT of Delhi) and others. (vi) The petitioner shall also comply with the other conditions as laid down under Section 438(2) of Cr.P.C.