Karnataka High Court
Shri Afzal Abdulla vs The State Of Karnataka on 27 May, 2022
Bench: K.Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF MAY 2022
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.100303/2022
BETWEEN
SHRI AFZAL @ DADA @ ABDULLA
S/O. USMAN SAYYAD,
AGE. 75 YEARS, OCC. PETTY BUSINESS,
R/O. BOMBAICHAL, DANDELI,
TALUK. DANDELI
UTTARAKANNADA-581325
.....PETITIONER
(BY SRI VENKATESH M KHARVI, ADV.)
AND
1. THE STATE OF KARNATAKA
THROUGH DANDELI TOWN P.S.,
R/BY SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD-580011.
2. SMT. FIRDOS W/O. MOHAMMED,
MOHAMMED JAVED SHEIKH,
AGE. 37 YEARS, OCC. HOUSEHOLD,
R/O. MASJID GALLI, BOMBAY CHAWL,
TALUK. DANDELI,
UTTARKANNADA-581325
.....RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R-1
R-2 SERVED)
2
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C., SEEKING
TO ALLOW THIS PETITION, GRANT REGULAR BAIL TO THE PETITIONER IN
CONNECTION WITH CRIME NO.78/2021 OF DANDELI P.S., FOR THE
OFFENCES U/S 376(AB) OF IPC AND SECTIONS 4 AND 8 OF POCSO ACT.
THIS PETITION COMING ON FOR ORDERS, THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This criminal petition is filed by the accused under Section
439 of Code of Criminal Procedure, 1973 (hereinafter referred to as
'Cr.P.C.', for short) for granting bail in respect of Crime No.78/2021
registered by Dandeli Town Police for the offence punishable under
Section 376(AB) of Indian Penal Code, 1860 (hereinafter referred to
as the 'IPC', for short) and Sections 4 and 8 of Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred to as
'POCSO Act', for short)
2. Heard the arguments of the learned counsel for
petitioner and learned High Court Government Pleader for
respondent.
3. The case of the prosecution is that one Firdos, the
mother of the victim girl filed a complaint before the police on
17.0.2021 alleging that herself and her husband along with
daughters are residing in Dandeli. On 16.09.2021, they were
celebrating the birthday of her elder daughter who was aged 14
years. While celebrating the birthday, the victim girl complained
that she is getting pain in her private part. Therefore, the
complainant took the victim to bathroom and washed her private
part. Against she complained paining in her private part. Then the
complainant applied some ointment. After celebrating the birthday
of her elder daughter, they slept. At 11.45 p.m., the victim girl
again complained paining in her private part. On enquiry, the victim
girl stated that her neighbour Dada put his finger in her private part
and she shown her private part and it was bleeding. Thereafter the
complainant taken the victim girl to the hospital and treated and
filed the complaint. After registering the complaint, the police
arrested the accused on 17.09.2021 and he was remanded to
judicial custody. The petitioner approached the District Court
seeking bail, which came to be rejected. Hence, he is before this
Court.
4. Learned counsel for petitioner contended that the
petitioner is innocent of the offences and he has been falsely
implicated in respect of a civil dispute between them. Even
otherwise, there is no medical evidence to show that he has
committed sexual assault on the victim girl. The investigation is
completed and charge sheet is filed. The age of the petitioner is 74
years and he is in judicial custody for more than 8 months. The
petitioner is ready to abide by any conditions. Learned counsel
relied on a judgment of this Court in Fakirappa Galeppa Anawal
and another Vs. The State of Karnataka by through Katakol
Police Station, Dharwad reported in 2014 (2) KCCR 1138 and
submitted that in a similar situation where the victim girl was aged
4 years, the accused were granted bail by this Court. Hence, he
prayed for grant of bail.
5. Learned High Court Government Pleader seriously
objected for grant of bail and contended that the petitioner has
sexually assaulted the minor victim girl aged below 4 years. The
medical report shows that there was injury in the private part of the
victim girl. The statement under Section 164 of Cr.P.C. also reveals
the same. If he is granted bail, he would tamper the evidence of
the prosecution. Hence, she prayed for dismissal of the petition.
6. Having heard the arguments of the learned counsel for
petitioner and learned High Court Government Pleader, perused the
records.
7. On perusal of the records, it is revealed that admittedly,
the victim girl was aged 3 years 8 months and she complained
about pain in her private part. Later on enquiry, the complainant
came to know that the petitioner said to have inserted his finger
into the private part of the victim girl. He has also done the same
twice and there was bleeding in the private part of the victim girl.
Subsequently, the complaint came to be filed. After completion of
investigation, charge sheet came to be filed. The statement under
Section 164 of Cr.P.C. also reveals that the child shown her private
part where the accused inserted his finger. The investigation is
completed and charge sheet is filed. Considering that the
petitioner/accused is aged 74 years and he is languishing in jail for
almost 8 months, if the bail is granted by imposing stringent
conditions, no prejudice will be caused to the case of the
prosecution. Accordingly, I pass the following order:
8. The criminal petition is allowed. The Trial Court is
directed to release the petitioner/accused on bail in Crime
No.78/2021 registered by Dandeli Town Police for the offence
punishable under Section 376(AB) of IPC and Sections 4 and 8 of
POCSO Act subject to the following conditions:
i. The petitioner shall execute a personal bond for a
sum of `2,00,000/- (Rupees Two lakh only) with
two sureties for the likesum to the satisfaction of
the Trial Court.
ii. The petitioner shall not hamper/tamper the
prosecution witnesses directly or indirectly.
iii. The petitioner shall not indulge in similar offences.
iv. The petitioner shall not leave the jurisdiction of this
court without prior permission of the Trial Court.
v. The petitioner shall take the trial without causing
any delay.
If any of the conditions is violated, then the prosecution is at
liberty to move an application for cancellation of bail.
Sd/-
JUDGE
Naa
