Santhosha and Another Vs. State by Circle Inspector of Police and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1144001
CourtKarnataka High Court
Decided OnMar-04-2014
Case NumberR.B. Criminal Petition No. 906 of 2014 C/W Criminal Petition No. 907 of 2014
JudgeBUDIHAL
AppellantSanthosha and Another
RespondentState by Circle Inspector of Police and Another
Excerpt:
(prayer: this criminal petition is filed under section 438 cr.p.c by praying to enlarge the petitioners on bail in the event of their arrest in crime no.9/2014 of rajanukunte p.s., bangalore rural dist., bangalore for the offences p/u/s 366(a), 376 r/w 34 of ipc and sec.3 and 4 of protection op children from sexual offences act, 2012.) (prayer: this criminal petition is filed under section 439 cr.p.c by praying to enlarge the petitioner on bail in cr.no.9/2014 of rajanukunte p.s., bangalore for the offence p/u/s 366(a), 376 r/w 34 of ipc and sec.3 and 4 of protection of children from sexual offences act, 2012.) 1. since, these two petitions are in respect of the same crime number, they have been taken together to dispose of them by a common order. 2. petitioner in crl.p.no.907/2014 is accused no.1 filed the petition under section 439 of cr.p.c., seeking his release on bail and petitioners in crl.p.no.906/2014 are accused nos.2 and 3 filed the petition under section 438 cr.p.c., seeking anticipatory bail to direct respondent-police to release the said petitioners on bail in the event of arrest for the alleged offences punishable under section 366a registered in the respondent - police station crime no.9/2014 and subsequently, the offences punishable under section 376 r/w section 34 of ipc and also under sections 3 and 4 of the posco act have been inserted in the case. 3. the brief facts of the prosecution case as per the averments in the complaint are: that one ravi lodged the complaint on 10.01.2014 stating that his daughter rachana has been studying in 10th standard at survodaya school at raiaanukunte and on 09.01.2014 his daughter went to the school and she did not return to home. on enquiry at the school, he learnt that his daughter did not attend the school, then the complainant suspected that sandeep might have kidnapped his daughter and in this regard complainant made the call to sandeep over mobile vide no.8123222902 and petitioner said that he has kidnapped the daughter of the complainant and he refused to bring back his daughter. on the basis of the said complaint, firstly, the case was registered against accused no.1 - sandeep for the alleged offences punishable under section 366a of ipc, but, subsequently, by filing the remand application accused nos.2 and 3 were also included in the case and the alleged offence under section 376 r/w section 34 of ipc and also under sections 3 and 4 of the posco act were added in the case. 4. heard the arguments of the learned counsel appearing for the petitioner in respect of "both the petitions and also the high court government pleader. 5. learned counsel for the petitioners during the course of his arguments submitted that at the first instance looking to the averments in the complaint, absolutely no allegations are made as against petitioners - accused nos.2 and 3 but, it is only at a later stage by filing the remand application the petitioners -accused nos.2 and 3's names were also included in the case, so also the offences punishable under sections 376 r/w section 34 of ipc and also provisions of the posco act were added in the case. learned counsel also made the submission that even with regard to accused no.1, there is no prima facie material placed by the prosecution to show that he has committed the offence of kidnap and rape on the victim girl. counsel submitted that the true facts are that the victim girl as well as sandeep were loving with each other and with their free will7 they got married and even they have given the photographs to the police. counsel made the submission that as the police officer interested in die case, he has made a false implication of the petitioner - sandeep in this case and arrested him without there bemg any satisfactory material. hence, the counsel submitted that there is no prima facie material to show that he has committed the alleged offences of rape and also kidnap. hence, he may also be admitted to bail. 6. as against this, the learned high court government pleader during the course of his arguments submitted that as on the date of alleged incident, the victim girl was only 13 years old and as per the material collected by the investigating officer during investigation, her date of birth is 07.02.1999. government pleader also made the submission that the statement of the victim girl is very clear that sandeep took her on his two wheeler vehicle forcibly against her will and took her to the house of one kondappa and there though she objected, against her will he committed rape on her. he made the further submission that the statement of witnesses also goes to show the involvement of the petitioner - accused no.1 in the commission of the alleged offence. he submitted that the medical report is awaited and it is yet to be received. the matter is also still under investigation. investigating officer has to collect some more materials and he has to file the charge sheet and at this stage all the three petitioners are not entitled to be granted with bail. 7. i have perused the averments made in the bail petitions, fir, complaint and order passed by the lower court on the bail applications and also the other materials placed on record, so also i have perused the photographs produced by the petitioner along with the petition. 8. it is no doubt true that at the first instance, the case was only against the accused no. 1 - sandeep for the alleged offence punishable under section 366a of ipc, but perusing the statement of the victim girl, she has stated in her statement not only the alleged act committed by accused no.1 - sandeep, but she has stated in her statement that when accused no.1 sandeep called her that he wanted to marry her and if she did not come with him, he will take her and he will marry her and at that time accused no.3 who was present told accused no. 1 that he can take her and they will see the consequences. on the basis of the statement of the victim girl, subsequently the name of the accused nos.2 and 3 were added in the case and even the offences punishable under section 376 of ipc and under the provisions of sections 3 and 4 of the posco act were also inserted in the case. 9. so far as the petitioners m crl.p.no.906/2014 is concerned, the only material on record is the statement of the victim girl that they were telling sandeep to take that victim girl and they are ready to see the consequences. except this, there are no other material, at this stage about there involvement in the commission of alleged offence of kidnapping. but, petitioner - accused no.1 is concerned, at this stage, statement of the victim girl clearly goes to show the involvement of the present petitioner in the commission of the alleged offence of kidnap as well as rape. looking to the materials placed on record, as on the date of the alleged incident, she was at the age of 13 years. therefore, the contention of the learned counsel for the petitioner that at their free volition and will both the petitioner and the victim girl married each other cannot be accepted. even as per the submission made by learned high court government pleader, medical report is yet to be received and investigation is also not completed. under these circumstances and in view of the serious allegations made against accused no. 1 with regard to the alleged offences, i am of the opinion that the petitioner - accused no. ], at this stage is not entitled to be released on bail. sofar as the petitioners in crl.p.no.906/2014, in view of the above discussion, i am of the opinion that by imposing reasonable conditions they can be admitted to anticipatory bail. 10. accordingly, clr.p.907/2014 is rejected and cri.p.906/2014 sofar as accused nos.2 and 3 are concerned, it is allowed and the respondent-police are directed to release the petitioners accused nos.2 and 3 on bail in the event of arrest of the said petitioners for the alleged offences punishable under sections 366a and 376 r/w section 34 of ipc and under sections 3 and 4 of posco act registered in the respondent- police station crime no.9/2014 subject to the following conditions: (i)  petitioners-accused nos. 2 and 3 each have to execute personal bond for a sum of rs.50,000/'- (rupee's fifty thousand only) with one solvent surety for the like sum to the satisfaction of the concerned court. (ii) the petitioners shall not tamper with any of the prosecution witnesses direct^ or indirectly. (iii) the petitioners shall make themselves available to the investigating      officerfor interrogation whenever called for. (iv) the petitioners shall appear before the concerned court within thirty days from the date of this order and execute the personal bonds and also the surety bonds.
Judgment:

(Prayer: This Criminal Petition Is Filed Under Section 438 Cr.P.C By Praying To Enlarge The Petitioners On Bail In The Event Of Their Arrest In Crime No.9/2014 Of Rajanukunte P.S., Bangalore Rural Dist., Bangalore For The Offences P/U/S 366(A), 376 R/W 34 Of Ipc And Sec.3 And 4 Of Protection Op Children From Sexual Offences Act, 2012.)

(Prayer: This Criminal Petition Is Filed Under Section 439 Cr.P.C By Praying To Enlarge The Petitioner On Bail In Cr.No.9/2014 Of Rajanukunte P.S., Bangalore For The Offence P/U/S 366(A), 376 R/W 34 Of Ipc And Sec.3 And 4 Of Protection Of Children From Sexual Offences Act, 2012.)

1. Since, these two petitions are in respect of the same crime number, they have been taken together to dispose of them by a common order.

2. Petitioner in Crl.P.No.907/2014 is accused No.1 filed the petition under Section 439 of Cr.P.C., seeking his release on bail and petitioners in Crl.P.No.906/2014 are accused Nos.2 and 3 filed the petition under Section 438 Cr.P.C., seeking anticipatory bail to direct respondent-police to release the said petitioners on bail in the event of arrest for the alleged offences punishable under Section 366A registered in the respondent - police station Crime No.9/2014 and subsequently, the offences punishable under Section 376 r/w Section 34 of IPC and also under Sections 3 and 4 of the POSCO Act have been inserted in the case.

3. The brief facts of the prosecution case as per the averments in the complaint are: that one Ravi lodged the complaint on 10.01.2014 stating that his daughter Rachana has been studying in 10th Standard at Survodaya School at Raiaanukunte and on 09.01.2014 his daughter went to the school and she did not return to home. On enquiry at the school, he learnt that his daughter did not attend the school, then the complainant suspected that Sandeep might have kidnapped his daughter and in this regard complainant made the call to Sandeep over mobile vide No.8123222902 and petitioner said that he has kidnapped the daughter of the complainant and he refused to bring back his daughter. On the basis of the said complaint, firstly, the case was registered against Accused No.1 - Sandeep for the alleged offences punishable under section 366A of IPC, but, subsequently, by filing the remand application accused Nos.2 and 3 were also included in the case and the alleged offence under Section 376 r/w Section 34 of IPC and also under Sections 3 and 4 of the POSCO Act were added in the case.

4. Heard the arguments of the learned counsel appearing for the petitioner in respect of "both the petitions and also the High Court Government Pleader.

5. Learned counsel for the petitioners during the course of his arguments submitted that at the first instance looking to the averments in the complaint, absolutely no allegations are made as against petitioners - Accused Nos.2 and 3 but, it is only at a later stage by filing the remand application the petitioners -accused Nos.2 and 3's names were also included in the case, so also the offences punishable under Sections 376 r/w Section 34 of IPC and also provisions of the POSCO Act were added in the case. Learned counsel also made the submission that even with regard to accused No.1, there is no prima facie material placed by the prosecution to show that he has committed the offence of kidnap and rape on the victim girl. Counsel submitted that the true facts are that the victim girl as well as Sandeep were loving with each other and with their free will7 they got married and even they have given the photographs to the police. Counsel made the submission that as the police officer interested in die case, he has made a false implication of the petitioner - Sandeep in this case and arrested him without there bemg any satisfactory material. Hence, the counsel submitted that there is no prima facie material to show that he has committed the alleged offences of rape and also kidnap. Hence, he may also be admitted to bail.

6. As against this, the learned High Court Government Pleader during the course of his arguments submitted that as on the date of alleged incident, the victim girl was only 13 years old and as per the material collected by the Investigating Officer during investigation, her date of birth is 07.02.1999. Government Pleader also made the submission that the statement of the victim girl is very clear that Sandeep took her on his two wheeler vehicle forcibly against her will and took her to the house of one Kondappa and there though she objected, against her will he committed rape on her. He made the further submission that the statement of witnesses also goes to show the involvement of the petitioner - Accused No.1 in the commission of the alleged offence. He submitted that the medical report is awaited and it is yet to be received. The matter is also still under investigation. Investigating Officer has to collect some more materials and he has to file the charge sheet and at this stage all the three petitioners are not entitled to be granted with bail.

7. I have perused the averments made in the bail petitions, FIR, complaint and order passed by the lower Court on the bail applications and also the other materials placed on record, so also I have perused the photographs produced by the petitioner along with the petition.

8. It is no doubt true that at the first instance, the case was only against the accused No. 1 - Sandeep for the alleged offence punishable under Section 366A of IPC, but perusing the statement of the victim girl, she has stated in her statement not only the alleged act committed by accused No.1 - Sandeep, but she has stated in her statement that when accused No.1 Sandeep called her that he wanted to marry her and if she did not come with him, he will take her and he will marry her and at that time accused No.3 who was present told accused No. 1 that he can take her and they will see the consequences. On the basis of the statement of the victim girl, subsequently the name of the accused Nos.2 and 3 were added in the case and even the offences punishable under Section 376 of IPC and under the provisions of Sections 3 and 4 of the POSCO Act were also inserted in the case.

9. So far as the petitioners m Crl.P.No.906/2014 is concerned, the only material on record is the statement of the victim girl that they were telling Sandeep to take that victim girl and they are ready to see the consequences. Except this, there are no other material, at this stage about there involvement in the commission of alleged offence of kidnapping. But, petitioner - Accused No.1 is concerned, at this stage, statement of the victim girl clearly goes to show the involvement of the present petitioner in the commission of the alleged offence of kidnap as well as rape. Looking to the materials placed on record, as on the date of the alleged incident, she was at the age of 13 years. Therefore, the contention of the learned counsel for the petitioner that at their free volition and will both the petitioner and the victim girl married each other cannot be accepted. Even as per the submission made by learned High Court Government Pleader, medical report is yet to be received and investigation is also not completed. Under these circumstances and in view of the serious allegations made against accused No. 1 with regard to the alleged offences, I am of the opinion that the petitioner - Accused No. ], at this stage is not entitled to be released on bail. Sofar as the petitioners in Crl.P.No.906/2014, in view of the above discussion, I am of the opinion that by imposing reasonable conditions they can be admitted to anticipatory bail.

10. Accordingly, Clr.P.907/2014 is rejected and Cri.P.906/2014 sofar as Accused Nos.2 and 3 are concerned, it is allowed and the respondent-police are directed to release the petitioners accused Nos.2 and 3 on bail in the event of arrest of the said petitioners for the alleged offences punishable under Sections 366A and 376 r/w Section 34 of IPC and under Sections 3 and 4 of POSCO Act registered in the respondent- police station Crime No.9/2014 subject to the following conditions:

(i)  Petitioners-accused Nos. 2 and 3 each have to execute personal bond for a sum of Rs.50,000/'- (Rupee's Fifty Thousand only) with one solvent surety for the like sum to the satisfaction of the concerned Court.

(ii) The petitioners shall not tamper with any of the prosecution witnesses direct^ or indirectly.

(iii) The petitioners shall make themselves available to the Investigating      Officerfor interrogation whenever called for.

(iv) The petitioners shall appear before the concerned Court within thirty days from the date of this order and execute the personal bonds and also the surety bonds.