Mohammed Ali vs State Of Karnataka
2022 Latest Caselaw 2646 Kant

Citation : 2022 Latest Caselaw 2646 Kant
Judgement Date : 17 February, 2022

Karnataka High Court

Mohammed Ali vs State Of Karnataka on 17 February, 2022

Bench: H.P.Sandesh

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 17TH DAY OF FEBRUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION NO.1157/2022

BETWEEN:

MOHAMMED ALI
S/O MOHAMMED NISAR
AGED ABOUT 37 YEARS,
R/AT NO.1130, 19TH MAIN ROAD,
J.P.NAGAR 2ND PHASE
BENGALURU-560078.                          ... PETITIONER

         (BY SRI HANUMANTHARAYA C.H., ADVOCATE)
AND:

STATE OF KARNATAKA
BY J.P.NAGAR POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.                             ... RESPONDENT

                (BY SRI VINAYAKA V.S., HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 438
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
THE EVENT OF HIS ARREST IN CR.NO.175/2021 OF
JAYAPRAKASH NAGAR POLICE STATION, BENGALURU CITY, FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 376, 420 AND
506 R/W. SECTION 34 OF IPC.
                                 2



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

                            ORDER

This petition is filed under Section 438 of Cr.P.C., praying

to enlarge the petitioner/accused No.1 on bail in the event of his

arrest in respect of Crime No.175/2021 registered by J.P.Nagar

Police Station, Bengaluru City, for the offences punishable under

Sections 376, 420, 506 read with Section 34 of IPC.

2. Heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent/State.

3. The factual matrix of the case of the prosecution is

that the police have received an email complaint on 16.09.2021,

wherein, an allegation is made that this petitioner is not

answering to complainant's calls and he raped her for 5 days and

took money from her. In order to substantiate the same, she

got the bank transaction report and now this petitioner is

blackmailing her and he is planning something dangerous to her.

Hence, she sought for justice. Based on this complaint, the

police have registered a case in Crime No.175/2021.

4. The learned counsel appearing for the petitioner

would submit that based on the email complaint, a case has

been registered and this petitioner has been falsely implicated in

the case and the alleged incident is said to have been taken

place at Delhi. Hence, the complaint ought to have given at

Delhi. The Karnataka police have lacks jurisdiction to investigate

the matter. The complainant also fails to give out any details

regarding the place and date of incident which lasted for 5 days.

The respondent - police have slept over the case for more than

4 months after registering the case without filing the charge-

sheet. No statement under Section 164 of Cr.P.C., was recorded

and not subjected the victim for medical examination. There is a

threat of arresting in view of registering a case against the

petitioner. Hence, there is no prima facie material against the

petitioner and he may be enlarged on bail.

5. Per contra, the learned High Court Government

Pleader appearing for the State would submit that this complaint

is received through email, when the notice is given to the victim

through email, the complainant not responded, 164 statement

was not recorded and also not subjected her for any medical

examination.

6. Having heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the State and on perusal of the material available

on record, no doubt, in the complaint, an allegation is made that

this petitioner subjected her for rape for a period of 5 days, but

the place of committing rape is not mentioned. Only this

petitioner is residing in Bengaluru. Hence, a case has been

registered. When there is no prima facie material, no doubt, it is

the bounden duty of the Investigating Officer to register the case

when the cognizable offence is alleged against the petitioner.

7. In view of the judgment of the Apex Court in the

case of LALITHA KUMARI v. GOVERNMENT OF U.P.

reported in (2014) 2 SCC 1, it is the duty of the Investigating

Officer to register the case when the complaint is received and

the same is also a concept of zero FIR and also a jurisdictional

free FIR. The concerned police have to transfer the same to the

jurisdictional police to investigate the matter and nothing is

there in the material on record except the email complaint.

When such being the case and when there is no material before

the Court regarding 164 statement and medical evidence and

also when there is no details of where she was subjected for

sexual act and also the investigation is not properly conducted

invoking Section 173 and also no report is filed within the time

limit when an heinous offence is alleged against the petitioner.

8. Having taken note of the material on record and

particularly, the submission of the learned High Court

Government Pleader that the complainant is not responded to

the email request made to her for subjecting her for 164

statement as well as medical examination, I am of the opinion

that it is a fit case to exercise the discretion under Section 438

of Cr.P.C., since no material is found to invoke Section 376 of

IPC as on date except the complaint.

9. In view of the discussions made above, I pass the

following:

ORDER

The petition is allowed. Consequently, the

petitioner/accused No.1 shall be released on bail in the event of

his arrest in respect of Crime No.175/2021 registered by

J.P.Nagar Police Station, Bengaluru City, for the offences

punishable under Sections 376, 420, 506 read with Section 34 of

IPC, subject to the following conditions:-

(i) The petitioner shall surrender himself before the Investigating Officer within ten days from the date of receipt of a certified copy of this order and shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the like-sum to the satisfaction of the concerned Investigating Officer.

(ii) The petitioner shall not indulge in hampering the investigation or tampering the prosecution witnesses.


      (iii)   The   petitioner      shall    co-operate   with   the
              Investigating        Officer    to   complete      the

investigation and he shall appear before the Investigating Officer, as and when called for.

(iv) The petitioner shall not leave the jurisdiction of the Investigating Officer without prior permission till the charge sheet is filed or for a period of three months, whichever is earlier.

(v) The petitioner shall mark his attendance once in a month i.e., on 30th of every month between 10.00 am and 5.00 pm., before the Investigating Officer for a period of three months or till the charge sheet is filed, whichever is earlier.