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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 14 t h DAY OF AUGUST 2020

BEFORE
THE HON’BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

CRIMINAL PETITION No.100817/2020

BETWEEN:

JAVED S/O RIYAZ MURGOD

AGE: 20 YEARS , OCC: STUD ENT,
R/O: LINK ROAD , DANDELI,
DIST: UTTARA KA NNADA.

(NOW IN J UDICIAL CUST ODY)

... PETITIONER
(BY SRI. R.H. ANGADI, ADV OCATE)

AND:

THE STATE OF KARNATAKA

(DANDELI TOWN POLICE STATION) ,
R/BY STATE PUBLI C PROSECUTOR,
HIGH COURT OF K ARNATAKA,
DHARWAD BEN CH, AT DHARWAD .
... RES PONDENT
(BY SRI. RAMESH B. CHIGARI , HCGP)

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 CONNECTI ON WITH DANDELI TOWN P.S.CRIME
NO.102/ 2019, DA TED 05/11/ 2019 FOR THE OFFENCES
PUNISHABLE U/S 363, 366, 342, 376 324 AND 354
READ WITH SEC.34 OF I PC AND UNDER SECTION 4
AND 6 OF POCSO ACT , PENDIN G IN SPL. CAS E
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NO.1/2020 ON THE FILE OF SPECI AL JUDGE, UTTAR

KANNADA, KARWA R.

THIS CRIMINAL PETITION COMING ON FOR

ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:

ORDER

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

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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

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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

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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

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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

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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

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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;

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(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
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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

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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 conditions. 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
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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.

Sd/-
JUDGE

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