Mr Manjunath vs State Of Karnataka
2021 Latest Caselaw 7139 Kant

                              1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF DECEMBER, 2021

                             BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

          CRIMINAL PETITION NO.7732 OF 2021

BETWEEN

 MR. MANJUNATH
 S/O LATE GANGAIAH,
 AGED ABOUT 42 YEARS,
 R/AT No.329, 3RD MAIN, 2ND CROSS,
 KUNGENTE, MALLATHALLI,
 BANGALORE-560 056.

                                         ...PETITIONER
(BY SRI SHIVA KUMAR GOWDA, ADVOCATE)

AND

1 . STATE OF KARNATAKA
    BY ANNAPOORNESHWARI
    NAGAR POLICE STATION,
    REPRESENTED BY SPP,
    HIGH COURT OF KARNATAKA,
    BENGALURU - 560 001.

2 . JYOTHI
    W/o RAVI.K
    AGED ABOUT 32 YEARS,
    R/AT NO.131, 2ND MAIN,
    2ND CROSS, ITI LAYOUT,
    BENGALURU - 560 072.

                                      ...RESPONDENTS

(BY SRI MAHESH SHETTY, HCGP)
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      THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN SPL.C.C.No.1291/2021
(CR.NO.127/2021) OF ANNAPOORNESHWARI NAGAR P.S.,
BANGALORE ON THE FILE OF THE LIV ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BANGALORE FOR THE OFFENCE P/U/S
354, 376(3) OF IPC AND SEC.5(l)(n),6 OF POCSO ACT.

      THIS CRIMINAL PETITION COMING ON FOR ORDERS,
THIS DAY THE COURT MADE THE FOLLOWING:

                               ORDER

This petition is filed by the petitioner-accused under

Section 439 of Cr.P.C., for granting regular bail in Crime

No.127/2021 registered by Annapoorneshwari Nagar Police

Station, Bengaluru for the offences punishable under

Sections 354, 376(3) of IPC, 1860 and Section 5(l), 5(n), 6

of the POCSO Act, 2012.

2. Heard the arguments of learned counsel for the

petitioner and learned High Court Government Pleader for

the respondent No.1-State and learned counsel for

respondent No.2-defacto complainant.

3. The case of the prosecution is that the

complainant-Jyothi, wife of this petitioner has filed a

complaint on 16.06.2021 alleging that she was previously

married to one Ravi in the year 2007 and having two

children and the said Ravi has deserted her.

Subsequently, she got married to this petitioner about two

years prior to the incident. The complainant is have 13

years old female child studying in 7th Standard at Sri

Shankaracharya Vidyapeetha Hostel, Kengeri. The

complainant used to visit the Hostel very often to see her.

Subsequently, due to lockdown, her daughter returned

from hostel and she was staying with her mother. Her

daughter was very upset and was in the sad mood from

past 15 days and when the complainant enquired as to

what happened, the victim did not revealed anything.

Subsequently, on 31.05.2021, the complainant had been

to work at 6.00 a.m., and when she returned home at

10.30 a.m., the accused was found at complainant's

daughter's bed room and when the complainant asked the

accused as to why he was standing inside her daughter's

room, the accused replied something, scolded her and

went back. Due to which there was a quarrel between

them and the complainant was staying separately along

with her children. On 16.06.2021, in the morning when the

complainant returned from work, the accused was there in

front of complainant's house and on enquiry, he became

angry and scolded her on the road and threatened her.

Complainant went inside the house and found that her

daughter was crying and she asked her as to what

happened, then her daughter revealed that the accused

came inside the house and assaulted her sexually and

even prior to that incident, he was continuously harassing

her by removing her clothes, touching her body,

videographing the same and threatened her that he will

show the same to her mother and also had sexual

intercourse with her against her will. Thereafter, she

lodged a complaint to the Police. After registering the case,

the petitioner was arrested on 17.06.2021 and remanded

to the judicial custody. His bail petition came to be

rejected by the learned Sessions Judge. Hence, he is

before this Court.

4. Learned counsel for the petitioner mainly

argued on the ground that the petitioner and the

complainant are husband and wife, there was quarrel

between them and due to which, they were living

separately. Subsequently, while living separately, the

complaint came to be lodged to harass him. Learned

counsel further contended that the accused is suffering

from HIV Positive Grade-II, he is in death bed and his

mother is also in death bed. Therefore, prayed for granting

bail on the humanitarian ground for the purpose of taking

treatment.

5. Per contra, learned High Court Government

Pleader and learned counsel for the defacto complainant

seriously objected the bail petition and contended that the

accused is HIV Patient, knowing the same he has raped the

child aged 13 years even though she is daughter in

relation. The investigation is completed and charge-sheet

has been filed. It is strong material against him and if he

granted bail, there is every possibility of threatening the

witnesses and absconding from the case. Hence, prayed

for rejecting the bail petition.

6. Upon hearing the arguments and on perusal of

the records, admittedly, the accused married the mother of

the victim two years prior to the incident. The complainant

is having two children from her first marriage with one

Ravi, the victim is her first child aged about 13 years. The

statement of the victim under Section 164 of Cr.P.C.

reveals that the accused used to come inside the house

while she was sleeping in the room, he has taken nude

videograph of her and committed sexual assault on her by

using condom and even without using condom and has

threatened her not to inform anybody. Due to quarrel

between the accused and the complainant, the

complainant shifted the house and living separately with

her children. There also the accused came and harassed

her sexually which reveals that the offence committed by

the accused is very serious one under the POCSO Act apart

from Section 376 of IPC. Now, the learned counsel for the

petitioner has produced the medical records which reveals

that the petitioner is seriously suffering from HIV Positive

and he is continuously under the treatment. Of course, the

accused being HIV Patient has committed sexual assault

on the victim girl. The learned counsel submits that the

mother of the victim is also suffering from HIV Positive.

Learned counsel for the petitioner has produced the

judgment of the Gujarat High Court, Ahmedabad in

Crl.Mis.Application No.10393 of 2016 in the case of

Noratan Malchandbhai Chajed vs. State of Gujarat

dated 05.08.2016, where, in murder case, the Gujarat

High Court has granted bail to the accused who was

suffering from HIV Positive on humanitarian ground but

not on merits. By looking to the facts and circumstances

of the case, here the petitioner has committed rape on the

victim girl aged 13 years and even after marrying the

mother of the victim which is nothing but raping his own

daughter. Such being the case, the offence committed by

the accused is not only inhuman and also against the

nature. Therefore, the petitioner is not entitled for bail.

7. Accordingly, the criminal petition is

dismissed.

Sd/-

JUDGE

GBB