(Prayer: This Criminal Petition is filed under section 438 of Cr.P.C praying to enlarge the petitioner on bail in the event of his arrest in Cr.No.98/2018 of Harihara Rural P.S., Davanagere District for the offence P/U/S 354, 366, 376, 406, 420, 506, r/w 34 of IPC.)
1. The present petition has been filed by the petitioner- accused No.1 under Section 438 of Cr.P.C to release him on anticipatory bail in Crime No.98/2018 of Harihara Rural Police Station, Harihara for the offences punishable under Sections 354, 36
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6, 376, 406, 420, 506 read with 34 of IPC.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader.
3. Facts leading to the case are that complainant and petitioner-accused were in love with each other and the said fact was also within the knowledge of parents of the complainant. During the year 2013, the complainant got married with accused No.1 and they were living together. On 20.12.2013, the petitioner-accused went away from the house and he did not return. Thereafter, the complainant returned to her native place and started living with her parents. Complainant also filed a miscellaneous petition for claiming maintenance, but subsequently she came to know that the petitioner- accused has cheated her. On the basis of the private complaint, a case is registered in the above crime.
4. It is the contention of the learned counsel for the petitioner that the petitioner-accused has not committed any offence alleged much less the one which has been made out by the complainant. He further submitted that the complainant has filed a Criminal Miscellaneous No.159/2015 before the Principal Civil Judge and JMFC, Harihar for claiming the maintenance and also for harassment and humiliation which goes to show that the petitioner-accused and the complainant have lived together as husband and wife. He further submitted that as per the complaint itself, the alleged incident has taken place on 20.12.2013, but a private complaint was filed by the complainant only on 30.04.2018. There is inordinate delay in filing the complaint. He further submitted that when the complainant was staying with the accused-petitioner for a period of nine months they have lived happily and at that time, they were living as husband and wife and under such circumstances, the provisions of Sections 363 and 376 of IPC are also not attracted. He further submitted that only with an intention to black mail the petitioner- accused, a false complaint has been registered against the accused-petitioner. On these grounds, he prayed to allow the petition and to release the accused-petitioner on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the accused-petitioner by inducing the complainant, has taken her and sexually assaulted her and there is a prima facie material as against petitioner-accused. If the accused-petitioner is enlarged on bail, he may tamper with the prosecution evidence, he may abscond and he may not be available for trial. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and other material which is produced along with the petition. A perusal of the complaint indicates that the alleged incident has taken place on 20.12.2013 and the complaint was registered on 30.04.2018. There is inordinate delay, even the complaint itself clearly goes to show that the Criminal Miscellaneous No.159/2015 was registered before the Principal Civil Judge and JMFC, Harihar for harassment and claiming the maintenance, but the said records also clearly indicate the fact that the petitioner and the complainant have lived like husband and wife. Even on perusal of the statement of the victim under Section 164 of Cr.P.C, she has not made any allegation except what has been stated in the complaint which has been filed on 30.04.2018.
7. On consideration of the materials placed on record, I am of the opinion that there is some force in the argument advanced by the learned counsel for the petitioner and it is a fit case to exercise power under Section 438 to release the accused on bail.
8. In that light, the criminal petition is allowed and the petitioner-accused is ordered to be released on bail in the event of his arrest in Crime No.98/2018 of Harihara Rural Police Station, Harihara for the offences punishable under Sections 354, 366, 376, 406, 420, 506 read with 34 of IPC subject to following conditions:-
1. The accused-petitioner shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) with two sureties for the likesum to the satisfaction of the Investigating Agency.
2. He shall surrender before the Investigating Agency within 15 days from today.
3. He shall not tamper with the prosecution evidence directly or indirectly.
4. He shall co-operate during the course of investigation.
5. He shall not leave the jurisdiction of the concerned Court without prior permission of the Court.
6. He shall mark his attendance once in 15 days in the said Police Station in between 10:00 a.m to 5:00 p.m till the charge sheet is filed.