(Prayer: This Criminal Petition is filed Under Section 439 of Cr.P.C. by the advocate for the petitioner praying to enlarge the petitioner on bail in Crime No.124/2019 of Kikkeri P.S., Mandya District for the offence punishable under Sections 363, 354(D), 366, 376, 342 of IPC and Section 9 of the Prohibition of Child Marriage Act and Sections 6, 12 of Protection of Children From Sexual Offences Act and Section 3(2)(VA), 3(1)(W)(I)(II) of SC/ST(POA) Act.
Through Video Conference:
1. This matter is taken up through Video Conference today.
2. Learned counsel Sri.Nagaiah for Sri Sathisha, for petitioner and Sri.K.Nageshwarappa, learned HCGP for respondent No.1 are present. Notice to complainant- respondent No.2 served through police.
3. The petition is filed under Section 439 of Cr.P.C. wherein the petitioner seeks grant of bail in Crime No.124/2019 for the offences punishable under Sections 363, 354(D), 366, 376, 342 of IPC and Section 9 of the Prohibition of Child Marriage Act and Sections 6, 12 of Protection of Children from Sexual Offences Act and Sections 3(2)(va), 3(1)(w)(i)(ii) of SC/ST(POA) Act of the respondent No.1 Police Station.
4. The petitioner is stated to be in Judicial Custody from 07.10.2019.
5. The date of complaint is 02.10.2019. He was arrested and remanded to judicial custody on 07.10.2019.
6. Previously, the petitioner had made application before the learned I Additional Sessions and Spl. Judge, Mandya, in Spl.C.No.284/2019 under Section 439 of Cr.P.C. that came to be dismissed on 14.02.2020. Hence, this petition.
7. Copy of the petition is served on learned HCGP for respondent.
9. The substance of the complaint is as under:
Date of commission of offence is stated to be 02.10.2019 and complaint is lodged on the same day. The complainant is one Javaramma of Dananahally Village, Kikkeri Hobli, K.R.Pet Taluk, Mandya. It is stated in the complaint that on 02.10.2019 Javaramma's daughter aged 17 years and five months was kidnapped by Prakasha, s/o Rajegowda, Bidarahalli Village, Mandya. It is stated that at about 1 P.M. on the date of incident the daughter of the complainant had gone to fetch water and the accused forcibly pulled her and took her to the temple of Anjaneyaswamy of their village and tied thali and further pushed and pulled her. Her daughter was afraid, frightened and cried for help. When Kumara Nayaka, S/o Veera Nayaka and Manjamma, w/o Ravi Nayaka went to stop the accused, he took the victim on his motorcycle number not known and escaped. In this connection said Majamma, w/o Ravi Nayaka informed the matter to the complainant. When the complainant went near the temple she came to know with the support of Kala Nayaka, S/o Chowdanayaka and Shekara Nayaka, the accused Prakasha kidnapped her daughter. Meanwhile the accused used to telephone the complainant and asking her to give the mobile to her daughter. The complainant raised to the occasion and procured her daughter and then the victim revealed that accused-Prakasha was forcing her to marry her. There was a Panchayat previously and he was advised despite that he kidnapped and married her by force. It is also stated the accused threatened the victim of life. At 10.45 P.M. complainant filed the complaint and case was registered.
10. As per the final report under Section 173(2) it is also stated that after kidnapping, the accused hired the house of CW-9 at Peenya, Bengaluru and had sexual intercourse on the victim by force and raped her against her will and without consent.
11. Learned counsel for petitioner Sri Nagaiah would submit that the victim is stated to be aged 17 years 5 months as admitted by the prosecution and there was no force of any kind by the petitioner or his friends or his relatives. He was arrested on the vague complaint of the mother of the victim. Learned counsel would further submit that there was love affair between the accused and the victim. They were close to each other and petitioner never believed in kidnapping or forcibly marrying her.
12. Accused was arrested on 07.10.2019 and has been in judicial custody since then. The bail application in Spl.C.No.284/2019 filed before the learned I Additional Sessions and Spl. Judge at Mandya came to be rejected.
13. Learned HCGP Sri K.Nageshwarappa opposes the bail application. Learned HCGP further submits that the petitioner has kidnapped a girl aged below 18 years and cannot seek excuse or the relief of bail.
14. In the overall context and circumstances it is to be seen that the case registered against the accused person are heinous offence such as Sections 6 and 12 of POCSO Act and related Sections 354D and 376 of IPC. As a matter of fact the offence attracts two sub legislations, provisions of SC & ST (POA) Act by virtue of caste of the victim and POCSO Act by virtue of age of the victim. Incidentally it is submitted the victim was produced before the Magistrate of First Class and statement was recorded under Section 164 of Cr.P.C wherein she tells that accused is a auto driver and there developed affair between accused and victim two years back and on 02.10.2019 in their village Dananahally at 1 P.M. the victim and accused got married and both of them went to Shravanabelagola bus stand and had been there for sometime and on Thursday in the wee hours both of them went to Bengaluru by bus and telephoned the brother of the accused and took her to his brother's house. Thereafter on Monday morning at 7 a.m. Kikkeri Police came and took both of them to the police station. The learned Magistrate has recorded the statement and certified as well. Thus it could be seen the basic person the victim who admittedly is aged 17 years and 5 months as on the date of the incident does not had any grievance against the accused. Per contra, she believes him to be her husband and that is the version of the accused as well. The incident happened eight months back. It appears that there appears to be tacit understanding between the accused and complainant. No doubt it is seen that the offence is serious but a hurdle for prosecution is the statement of the victim under Section 164 of Cr.P.C. The accused person is stated to be in judicial custody from 07.10.2019. Case was registered, investigation was conducted and final report was filed and as the subject case is triable by the trial court and trial is yet to commence. There is no complaint of interference for investigation against the accused.
15. Learned Special Judge has rejected the bail application as stated above. Considering the circumstances and conduct of the complainant, victim and the accused, I find no prejudice will be caused to the prosecution if petitioner is enlarged on bail. The apprehension of the prosecution could be resolved by imposing conditions.
Hence, I proceed to pass the following:
Petition filed under Section 439 of Cr.P.C by the petitioner is hereby allowed. He is ordered to be released on bail in Crime No.124/2019 for the offence punishable under Sections 363, 354(D), 366, 376, 342 of IPC and Section 9 of the Prohibition of Child Marriage Act and Sections 6, 12 of Protection of Children from Sexual Offences Act and Sections 3(2)(va), 3(1)(w)(i)(ii) of SC/ST(POA) Act registered by the respondent No.1-police subjec
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t to following conditions: i) The petitioner-accused shall execute a personal bond for Rs.1,50,000/- with a surety of a person possessing immovable properties for the likesum. ii) The petitioner-accused shall not leave the State of Karnataka till disposal of the case without permission of the trial court. iii) The petitioner shall not involve himself in the acts of destroying the evidence or bring pressure on the prosecution witnesses. iv) The petitioner-accused shall mark his attendance before the Investigating Officer of the above case on third Saturday of every month between 9.00 p.m. to 10 p.m. for period of six months from today. v) Petitioner shall place himself in quarantine for a period of 14 days at home before which he shall get himself medically checked.