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Javed v/s The State of Karnataka (Dandeli Town Police Station), Rep. by State Public Prosecutor, Dharwad


Company & Directors' Information:- G E CO PUBLIC LIMITED [Strike Off] CIN = U36900WB1951PLC021802

    Criminal Petition No. 100817 of 2020

    Decided On, 14 August 2020

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

    For the Petitioner: R.H. Angadi, Advocate. For the Respondent: Ramesh B. Chigari, HCGP.



Judgment Text


(Prayer: This Criminal Petition is filed Under Section 439 of Cr.P.C., praying to enlarge the petitioner, who is arrayed as Accused No.1 on bail in connection with Dandeli Town P.S.Crime No.102/ 2019, dated 05/11/ 2019 for the offences punishable U/S 363, 366, 342, 376 324 and 354 read with Sec.34 of IPC and under Section 4 and 6 of POCSO Act, pending in Spl. Case No.1/2020 on the file of Special Judge, Uttar Kannada, Karwar.)

1. This petition is filed by accused No.1 under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.102/2019 of Dandeli Town Police Station registered for the offences punishable under Sections 363, 366, 342, 376, 324, 354 read with Section 34 of the Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Sections 4 and 6 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act', for brevity).

2. The case of the prosecution is that informant first victim, d/o Ashokgowda, aged 16 years, resident of Vanashri Nagar, Dandeli, filed a complaint that on 05.11.2019 contending that she is studying in SSLC and her father is working in a private firm. She has further alleged that when she was studying in 9th standard, she came in contact with one Javed S/o Riyaz Murgod of Dandeli through Instagram. The said friendship turned into love and both were loving each other and the said Javed was all the while telling that he will marry her. In the month of October she along with her friends went to a fair at a place called Gunji even though her parents had objected for the said visit. She has further contended that on 11.10.2019, she went to the fair along with Javed and on the night of the said date they stayed together in the house of her friend. On the next day, that is on 12.10.2019, she and her friend Javed returned to Dandeli. Since it was late in the night, she went to the house of Javed and stayed there under the fear that her parents will question her. In the said house both of them stayed together and Javed was intending to have sexual relationship with her but it was not performed. On the next day, that is on 13.10.2019 Javed had sexual relationship with her in the morning. The uncle of Javed had seen complainant and Javed and insisted complainant to get her parents. Thereafter, it was conveyed to one Mr.Kocchu alias Ranjith, he came to their house representing himself as brother of complainant and took her to her house. Thereafter, said Ranjith started calling her and insisting her to meet him and was telling her that he is loving her. She has further alleged that on 29.10.2019 at about 12 in the afternoon, she went to the house of her friend-the second victim, at about 7.00 pm said Ranjith came to the house of 2nd victim and threatened her and assaulted her with stick on her leg. At that time she called her cousin Deepak and told him to get her home. Once again she returned to home of her friend-the 2nd victim and conveyed the same to Javed. Javed came there and took her to IPM resort and booked a room in the said resort. Her friend-the 2nd victim called her boyfriend Dinesh and all of them stayed in the said room. She has further alleged that Javed had sexual contact with her on the said day and on the next day also. Thereafter on 31.10.2019 they all went to Belagavi to witness Karnataka Rajyothsava parade and they reached on 31.10.2019 at 7.00 pm and stayed in a room. Further she has alleged that on Nov.1, 2019 they reached Goa by a train. There they have visited Koluo beach and they were in railway station, some person from child-helpline met them and made enquiry as to their age and about their parents the said persons have informed her parents and she has returned to her home and on 05.11.2019 she has lodged a complaint to the Dandeli Town Police Station.

In the charge sheet, the petitioner has been arrayed as accused No.1 and he was arrested on 07.11.2019. The petitioner/accused No.1 had filed a bail application in Spl.Case No.1/2020 and the same came to be rejected by the learned Special Judge, Uttar Kannada on 07.03.2020. Therefore, the petitioner is before this Court seeking bail.

3. Heard the arguments of the learned counsel appearing for the petitioner-accused No.1 and the learned High Court Government Pleader for the respondent-State.

4. It is the submission of the learned counsel for the petitioner that there is love affair between the petitioner and the first victim. It is his further submission that the first victim had voluntarily gone along with accused No.1. It is his further submission that there is no forcible sexual intercourse between the first victim and accused No.1. It is his further submission that the investigation is over and charge sheet has been filed and that the petitioner-accused No.1 is not required for any further custodial interrogation. It is his further submission that the petitioner is having mother(widow) and an elder sister(widow)and her child and he is the only earning member of the family. With these, the counsel prayed for allowing the petition.

5. Per contra, the learned High Court Government Pleader contended that the offences committed by the petitioner are under Sections 4 and 6 of the POCSO Act along with other offences under IPC namely Section 376 etc which is a heinous offence. It is his further submission that if the petitioner is released on bail, he will tamper the prosecution witnesses and flee from justice and will not be available for trial. With these, he prayed to dismiss the petition.

6. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the charge sheet records. Even according to the complaint averments, the 1st victim is in love affair with the petitioner-accused No.1. On looking to the complaint, statement of the 1st victim recorded by the police and the Magistrate, there is no allegation of forcible sexual intercourse. The 1st victim is aged 17 years having knowledge and understating of the consequences of her act. The 1st victim has voluntarily went along with accused No.1.

7. It is well settled that matters to be considered in an application for bail are:

"(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the charge;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being tampered with; and

(viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused."

8. In a decision reported in (2018) 3 SCC 22 in the case of Dataram Singh v. State of Uttara Pradesh and Another, the Hon'ble Apex Court held as under:

"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society."

9. In the present case, the investigation is completed and charge sheet has been filed. No grounds have been made out by the prosecution to show that custodial interrogation of the petitioner is necessary. The petitioner is aged 20 years and a student. If he is detained in judicial custody, he will come in contact with hardened criminals and that his educational career will be affected. The petitioner is the resident of the address shown in the cause title and the same is not disputed. The main objection of the prosecution is that in the event of granting bail, the petitioner is likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set right by imposing stringent conditions.

10. 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 bail subject to certain terms and condit

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ions. Hence, I proceed to pass the following: ORDER The petition filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioner/accused No.1 shall be released on bail in Crime No.102/2019 of Dandeli Town Police Station subject to the following conditions: i) The petitioner/accused No.1 shall execute a personal bond for a sum of Rs.1,00,000/- (one lakh rupees only) with one surety for the like sum to the satisfaction of the jurisdictional Court. Due to COVID-19, the petitioner/accused No.1 is permitted to furnish surety within two months. If circumstances arise, the jurisdictional Court is at liberty to extend the period for furnishing surety. ii) The petitioner/accused No.1 shall not indulge in tampering the prosecution witnesses. iii) The petitioner/accused No.1 shall not leave the jurisdiction of the trial Court/Sessions Court without prior permission till disposal of the case. iv) The petitioner/accused No.1 shall attend the Court regularly.
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