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2022 DIGILAW 1262 (KAR)

Ganesh v. State of Karnataka

2022-09-22

SHIVASHANKAR AMARANNAVAR

body2022
JUDGMENT 1. This appeal is filed by accused No .1 challenging the order dtd. 18/8/2022 passed by the II Additional District and Sessions Judge, Uttara Kannada, Karwar, whereunder the petition filed by the appellant/accused No.1 under Sec. 439 o f The Code of Criminal Procedure, 1973 (hereina fter referred to as the 'Cr.P.C.', for brevity) seeking bail in respect o f Crime No.68/2022 o f Sirsi New Market Police Station registered for the offences punishable under Ss. 376, 323, 504 read with Sec. 34 of the Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Ss. 3(1)(r), 3(1)(w), 3(2)(va) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereina fter referred to as 'SC & ST (POA) Act', for brevity), came to be rejected. 2. Heard learned counsel for the appellant and learned High Court Government Pleader for respondent No.1-State . Respondent No.2 is present physically before this Court and she prays not to grant bail to appellant/accused No.1. It is her submission that there is a threat to her by family member of this appellant. It is her further submission that a case has been registered against her for dishonoring of cheque. She lost job in view of the cases filed by her and also filed against her. 3. The case o f the prosecution is that respondent No.2-complainant is aged 25 years, filed the complaint contending that she is working in a private firm and she came in contact with appellant/accused No.1 who is a bank employee through her neighbour by name Naveen Mukri. Thereafter, since 2020 July both started loving each other. The appellant/accused No.1 used to tell her that he is intending to marry her. It is further stated that on 24/8/2020 at about 3.00 p.m. she went to the house of the appellant/accused No.1 , he hugged her and committed forcible sexual intercourse on her. It is further stated that on different occasions he has committed the similar acts. It is further stated that on 30/5/2022 she went with the appellant/accused No.1 to the office where she was working and in the said o ffice also he has committed sexual intercourse on her. It is further stated that the appellant/accused No .1 was sending messages to her from his mobile . She has paid an amount of Rs.1, 00 , 000.00 through phone pay and Rs.40, 000.00 by cash. It is further stated that the appellant/accused No .1 was sending messages to her from his mobile . She has paid an amount of Rs.1, 00 , 000.00 through phone pay and Rs.40, 000.00 by cash. When she demanded the said money, he refused to pay the amount and he also quarrel with her threatening that he will not marry her. That on 25/7/2022 at about 9.30 a.m., she went to the house of appellant/accused No.1 and when she opened the gate, the mother of the appellant/accused No.1 quarreled with her and abused her touching her caste and assaulted her. The said complaint came to be registered in Crime No.68/2022 of Sirsi New Market Police Station for the offences punishable under Ss. 376, 323, 504 read with Sec. 34 o f IPC and Sction 3(1)(r), 3(1)(w) and 3(2)(va) of SC and ST (POA) Act. The appellant/accused No.1 came to be arrested on 27/7/2022 and he is in judicial custody. The appellant/accused No.1 filed bail application and the same came to be rejected by the II Additional District and Sessions Judge, Uttara Kannada, Karwar, by order dtd. 18/8/2022. Therefore, the appellant/accused No.1 has challenged the said order in the instant appeal. 4. Learned counsel for the appellant would contend that there was love affair between the appellant and the complainant and there relationship is consensual. Merely because the appellant/accused No.1 refused to repay the amount borrowed, does not attract the offence under Sec. 376 of IPC. It is his further submission that the appellant/accused No .1 is ready to co-operate with the Police in the investigation. It is his further submission that the appellant/accused No.1 is in judicial custody since 27/7/2022 and therefore he is not required for custodial interrogation. Without considering all these aspects, the learned Sessions Judge has passed the impugned order which requires interference by this Court. With this, he prayed to allow the appeal. 5. Per contra, learned High Court Government Pleader for respondent No.1 would contend that the investigation is still in progress. The appellant under the pretext of marriage has committed sexual intercourse on the complainant. The statement of the victim lady is yet to be recorded under Sec. 164 of Cr.P.C. On perusal of the averment of the complaint clearly attracts the offences alleged against him. The appellant under the pretext of marriage has committed sexual intercourse on the complainant. The statement of the victim lady is yet to be recorded under Sec. 164 of Cr.P.C. On perusal of the averment of the complaint clearly attracts the offences alleged against him. I f the appellant is granted bail, there is a threat to the complainant and there are chances o f hampering the investigation and tampering the other prosecution witnesses. Considering all these aspects, the learned Sessions Judge has rightly passed the impugned order which does not call for any interference by this Court. With this, he prayed to dismiss the appeal. 6. *** 7. Having regard to the submissions made by learned counsel for the appellant, learned High Court Government Pleader for respondent No.1- State and taking into consideration the submission made by respondent No.2-complainant, this Court has gone through the FIR, complaint and the impugned order. 8. On perusal of the averments in the complaint, there was a love affair between this appellant/accused No.1 and the complainant (respondent No .2) and the physical relationship between the appellant/accused No.1 and respondent No.2 is consensual. The complaint came to be filed against the appellant/accused No.1 when he refused to marry her and refused to repay the amount borrowed by him from the complainant. The complainant was in relationship with the appellant/accused No .1 for a period of nearly two years. The complainant is aged 25 years and the complainant has relationship with the appellant when she was aged 23 years. Learned counsel for the appellant placed reliance on the decision of the Hon'ble Apex Court in the case of Ansaar Mohammad Vs. The State of Rajasthan and Another, wherein , the Apex Court has held as under; "In view of the said fact, the complainant has willingly been staying with the appellant and had the relationship . Therefore , now if the relationship is not working out, the same cannot be a ground for lodging an FIR for the o ffence under Sec. 376(2)(n) IPC." The complainant had willingly in relationship with the appellant. Therefore, at this stage it cannot be said that it attracts the offence under Sec. 376(2)(n) of IPC. The appellant is a bank employee . Without considering all these aspects, learned Sessions Judge has passed the impugned order which requires interference by this Court. Therefore, at this stage it cannot be said that it attracts the offence under Sec. 376(2)(n) of IPC. The appellant is a bank employee . Without considering all these aspects, learned Sessions Judge has passed the impugned order which requires interference by this Court. The main apprehension of the prosecution is that, if the appellant/accused No.1 is granted bail, he will threaten the complainant and other prosecution witnesses and hamper the investigation, can be met with by imposing certain stringent conditions. 9. 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 setting aside the impugned order and granting bail to the appellant/accused No.1. Hence, I proceed to pass the following: ORDER The appeal is allowed. The impugned order dtd. 18/8/2022 passed by the II Additional District and Sessions Judge, Uttara Kannada, Karwar, is set aside. Consequently, the petition filed by appellant/accused No.1 under Sec. 439 of Cr.P.C ., stands allowed . The appellant/accused No.1 is ordered to be released on bail in Crime No. 68/2022 of Sirsi New Market Police Station, sub ject to the following conditions: i. The appellant shall execute a personal bond for a sum of Rs.1, 00, 000.00 (Rupees One Lakh Only) with one surety for the likesum to the satisfaction o f the jurisdictional Court. i i. The appellant shall attend the Police Station concerned every Sunday between 10:00 a.m. and 02:00 p.m . and mark his presence for a period of two months or till filing of the final report, whichever is earlier. i i i. The appellant shall co-operate with the investigating of ficer and make himsel f available for interrogation whenever required. iv. The appellant shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer. v. The appellant shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police.