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2022 DIGILAW 1061 (KAR)

Praveen Bhimrao Avubayagol v. State of Karnataka

2022-08-12

SHIVASHANKAR AMARANNAVAR

body2022
JUDGMENT Shivashankar Amarannavar, J. - This petition has been filed by the sole accused under Section 438 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking anticipatory bail in Hukkeri Police Station Crime No. 93/2021 registered for the offences punishable under Section 376(1) of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Sections 4, 6 and 8 of Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as the 'POCSO Act' for brevity) and the case is pending in Special Case No. 46/2022 on the file of III Additional District and Sessions Judge FTSC-I, Belagavi. 2. The brief case of the prosecution is that one Sanju has filed complainant stating that his younger sister-victim girl aged 17 years 5 months had been to Belavi village at 4.00 p.m. on 21.07.2021 but did not returned even after 6.00 p.m. and he informed the same to his mother over phone and verified with friends and relatives and could not find her and he thought that she might have been kidnapped by someone and therefore he filed complaint on 23.07.2021 against unknown person which came to be registered in Crime No. 93/2021 for the offence punishable under Section 363 of IPC. The victim girl and the accused appeared before the Police on 13.08.2021. The Police recorded the statement of the victim girl and referred her for medical examination. The accused was arrested and produced before the Trial Court on 15.08.2021 but since the Police had failed to comply the guidelines of Apex Court in Arnesh Kumar's case the accused released forthwith. The victim girl has stated in her statement that on 22.07.2021 she voluntarily left with the accused for getting marriage with him and they reached Dharwad and then went to Bengaluru and resided at the house of brother of accused. Based on said statement of the victim girl, the Police filed requisition to include offence punishable under Section 376(1) of IPC and Sections 4, 6 and 8 of POCSO Act. The Police after the investigation filed charge sheet for the aforesaid offences. Based on said statement of the victim girl, the Police filed requisition to include offence punishable under Section 376(1) of IPC and Sections 4, 6 and 8 of POCSO Act. The Police after the investigation filed charge sheet for the aforesaid offences. The Trial Court has issued NBW and therefore the petitioner/accused apprehending his arrest has filed Criminal Miscellaneous No. 522/2022 under Section 438 of Cr.P.C. seeking anticipatory bail and the same came to be rejected by the learned Additional District and Sessions Judge FTSC-I, Belagavi by order dated 29.06.2022. Therefore, the petitioner is before this Court seeking anticipatory bail. 3. Heard the arguments of learned counsel appearing for the petitioner and learned High Court Government Pleader for the respondent-State. 4. Learned counsel for the petitioner would contend that on looking to the statement of the victim girl recorded by the Magistrate under Section 164 of Cr.P.C., it is clear that she is in love affair with the petitioner/accused and she voluntarily went along with him to Bengaluru. Even the victim girl refused for medical examination. The victim girl has not alleged any sexual intercourse by the petitioner on her in her statement recorded under Section 164 of Cr.P.C. As the charge sheet is filed the petitioner is not required for custodial interrogation. With this, he prayed to allow the petition. 5. Per contra, learned High Court Government Pleader contends that the offence alleged against the petitioner is heinous offence. The charge sheet material shows prima facie case against the petitioner for the offences alleged against him. The victim girl is aged 17 years 5 months as on the date of offence. If the petitioner is granted bail, he will threaten the complainant and other prosecution witnesses. With this, he prayed to reject the petition. 6. Having regard to the submissions made by learned counsel for the petitioner and learned High Court Government Pleader, this Court has gone through the charge sheet papers. 7. The statement of victim girl has been recorded under Section 164 of Cr.P.C. The victim girl in the said statement has stated that she is in love affair with the petitioner/accused and she voluntarily went along with him as her parents did not agree for her marriage with the petitioner as he belongs to different community. 7. The statement of victim girl has been recorded under Section 164 of Cr.P.C. The victim girl in the said statement has stated that she is in love affair with the petitioner/accused and she voluntarily went along with him as her parents did not agree for her marriage with the petitioner as he belongs to different community. In the said statement there is no any allegation of forcible sexual intercourse or sexual intercourse by this petitioner/accused on the victim girl. The victim girl has refused for medical examination. The victim girl is of the age of understanding the consequences of her acts. As the charge sheet is filed, the petitioner is not required for custodial interrogating. The main apprehension of the prosecution is that if the petitioner is granted anticipatory bail, he will threaten the prosecution witnesses can be met with by imposing stringent conditions. 8. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting anticipatory bail subject to certain terms and conditions. Hence, I proceed to pass the following: ORDER The petition filed under Section 438 of Cr.P.C. is allowed. Consequently, the petitioner/accused shall be released on bail in the event of his arrest in Crime No. 93/2021 of Hukkeri Police Station, pending on the file of learned III Additional District and Sessions Judge, Belagavi in Special Case No. 46/2022, subject to the following conditions: i) The petitioner shall execute a personal bond for a sum of Rs. 1,00,000/- (Rupees one lakh only) with one surety for the like sum to the satisfaction of the jurisdictional Court. ii) The petitioner shall voluntarily appear before the Investigating Officer within fifteen days from this day and execute bail bond and furnish surety. iii) The petitioner shall not indulge in tampering the prosecution witnesses. iv) The petitioner shall attend the Court on all the dates of hearing, unless exempted, and co-operate in speedy disposal of the case.