Gurusiddappa S/O. Nijaguneppa ... vs The State Of Karnataka
2021 Latest Caselaw 6825 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

     DATED THIS THE 20 T H DAY OF DECEMBER, 2021
                             BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

           CRIMINAL PETITION No.102347/2021

   BETWEEN:

   Gurusiddappa S/o. Nijaguneppa Shirol
   Age: 33 years, Occ: Constable in B.S.F.
   R/o. Nalawadi, Tq: Annigeri
   Dist: Dharwad 582 201
   Now working as Constable in B.S.F, Panjab
                                                 ...PETITIONER
   (By Sri. B. S. Kukanagoudar, Advocate)

   AND:

   The State of Karnataka
   Through Vidyanagar Police Station
   Hubballi, Represented by
   State Public Prosecutor
   S.P.P. Office, Dharwad Bench
   Dharwad 580 011.
                                                ...RESPONDENT
   (By Sri. Ramesh B. Chigari, HCGP)
                               ---

          This criminal petition is filed under Section 438 of
   the Code Of Criminal Procedure, seeking to grant
   anticipatory bail in favour of the petitioner/accused and
   direct to release the petitioner/accused on bail in the event
   of his arrest in Hubballi Vidyanagar P.S. Crime
   No.145/2021 registered for the offences punishable under
   Section 376 and 417 of the IPC.
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      This criminal petition coming on for orders
this day, the Court made the following:


                       ORDER

The sole accused has filed this petition

under Section 438 of The Code of Criminal

Procedure, 1973 (hereinafter referred to as the

'Cr.P.C.', for brevity) seeking anticipatory bail

in Crime No.145/2021 of Hubballi Vidyanagar

Police Station, registered for the offences

punishable under Sections 376 and 417 of the

Indian Penal Code, 1860 (hereinafter referred

to as the 'IPC', for brevity).

2. The case of the prosecution is that,

the victim girl has filed a complaint stating

that she is the native of Maranabasari village

in Ron Taluk from Gadag District and after

completion of her B.E. Degree, she is working

as Computer Operator in a private company at

I.T. Park Hubballi and residing at Matru P.G.

Vidyanagar, Hubballi and she registered in

Bharat Matrimony in the year 2019 for

marriage alliance. The complainant came to

know about the petitioner/accused, who was

working as a Constable in BSF, Panjab, through

Bharat Marimony, who had also registered in

the same matrimony. It is further stated that,

on 01.11.2019, both complainant and

petitioner/accused met at Hubballi, talked and

both continued their talks over phone and

started loving each other. It is further stated

that, on 15.06.2020, petitioner came to

Hubballi as agreed over phone talks between

them and both stayed together falsely stating

as husband and wife at P.G. in Unkal for about

two months. The petitioner/accused had

forcible sexual intercourse with the

complainant everyday for about two months, in

spite of her opposition on the promise of

marriage. The petitioner on 10.08.2020

went to Panjab from Hubballi by train and both

were in contact over phone everyday and used

to talk and see their personal photos through

video calls etc. In the month of October,

2020, the petitioner came to Hubballi and both

accused and complainant stayed together in a

rented house at Laxmi Nagar, Dharwad, falsely

stating that they are husband and wife, for

about 25 days and during that stay, the

petitioner had sexual intercourse with her in

spite of her resistance. The petitioner came to

Hubballi in the month of February 2021 and

both complainant and accused stayed in a

rented house at Dodda Oni in Hubballi, falsely

stating as husband and wife for about one

month and during that stay, the petitioner had

sexual intercourse with her. It is further

stated that, the complainant came to know that

the petitioner had already married one Rekha

of Hirekoppa village of Nargund and in that

wedlock, he has a male child and the said

marriage is dissolved during April, 2021. It is

further stated that, thereafter the complainant

made efforts to contact him over phone, but

she was not able to contact him over phone

and therefore, she filed a complaint stating

that, he, under the promise of marriage, had

sexual intercourse with her and he has cheated

her. The said complaint came to be registered

in Crime No.145/2021 of Vidyanagar Police

Station, Hubballi, for the offences punishable

under Sections 376 and 417 of the IPC. The

petitioner apprehending arrest, has filed

Crl.Misc.No.5236/2021 seeking anticipatory

bail and the same came to be rejected by the I

Addl. District and Sessions Court, Dharwad,

sitting at Hubballi, by order dated 26.11.2021.

Therefore, the petitioner is before this Court

seeking anticipatory bail.

3. Heard the arguments of learned

counsel appearing for the petitioner and the

learned High Court Government Pleader for the

respondent-State.

4. Learned counsel for the petitioner

would contend that the complainant is aged 30

years and she is a B.E. graduate working in a

private company. The alleged sexual

intercourse between the petitioner and the

complainant is consensual. The petitioner is

working as a police constable in B.S.F and if he

is arrested and kept in judicial custody for

more than 48 hours, he will be kept in

suspension. The petitioner is ready to

cooperate with the police in investigation. The

offences alleged against the petitioner are not

punishable with death. The counsel for the

petitioner has placed reliance on the decision

of the Hon'ble Apex Court reported in 2021

AIAR (Criminal 409) in the case of Sonu @

Subhash Kumar Vs. State of Uttar Pradesh

and Anr., stating that, under similar facts and

circumstances, the alleged act does not amount

to any offence as alleged. With this he prayed

to allow the petition.

5. Per contra, learned High Court

Government Pleader has contended that the

statement of the victim girl/complainant has

been recorded under Section 164 Cr.P.C. and

she has reiterated the complaint averments

and stated that there is no divorce between the

petitioner and his wife Rekha. The offence

alleged against the petitioner is a serious

offence. The investigation is still in progress

and the statement of the wife of the petitioner

is to be recorded. If the petitioner is granted

anticipatory bail, he will hamper the

investigation and tamper the prosecution

witnesses and flee from justice. With this he

prayed to reject the petition.

6. Having regard to the submissions

made by the learned counsel for the petitioner

and the learned High Court Government

Pleader, this Court has gone through the FIR,

complaint and the order passed by the

Sessions Court.

7. The complainant is aged 30 years and

she is a B.E. graduate and working in a private

company in Hubballi. On looking to the

averments made in the complaint, there is

consensual sex between the petitioner and the

complainant. The complainant has filed a

complaint stating that she came to know that

the petitioner is married and there is no

divorce. The counsel for the petitioner has

made available the certified copy of the decree

passed in M.C.No.47/2019, wherein the

marriage of the petitioner with his wife

Smt.Rekha came to be dissolved by decree of

divorce by judgment dated 15.04.2021. The

petitioner is working as constable in B.S.F and

he is the owner of the landed property at

Chakalabbi Village, Kundgol Taluk. The

petitioner has undertaken to cooperate with

the police in investigation. The offences

alleged against the petitioner are not

punishable with death. As the petitioner is

serving in Army, he can be secured easily for

investigation and trial. There are no criminal

antecedents of the petitioner. The main

objection of the prosecution is that, if the

petitioner is granted anticipatory bail, he will

hamper the investigation and tamper the

prosecution witnesses. The said objection can

be met with by imposing some stringent

conditions.

8. In the facts and circumstances of the

case and the submission of the counsel, this

Court is of the view that there are valid

grounds for granting anticipatory bail subject

to certain terms and conditions. Hence, I pass

the following:

ORDER

Criminal petition filed under Section 438

of Cr.P.C. is allowed. In the event of arrest,

petitioner/accused is ordered to be released on

bail in connection with Crime No.145/2021 of

Hubballi Vidyanagar Police Station with the

following conditions:

i. The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh Only) with one surety for the like sum to the satisfaction of the jurisdictional Court.

ii. The petitioner shall voluntarily surrender before the Investigating Officer/jurisdictional Court and execute personal bond and furnish surety within a period of one week

from the date of receipt of certified copy of this order.

iii. The petitioner shall co-operate with the investigation and make himself available for interrogation whenever required.

iv. The petitioner shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer.

v. The petitioner shall not obstruct or hamper the Police investigation and not to play mischief with the evidence collected or yet be collected by the Police.

Sd/-

JUDGE g ab