Karnataka High Court
Mallesh vs State Of Karnataka And Ors on 18 December, 2023
Author: K Natarajan
Bench: K Natarajan
-1-
NC: 2023:KHC-K:9257
CRL.P No. 201724 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE K NATARAJAN
CRIMINAL PETITION NO. 201724 OF 2023 (438)
BETWEEN:
SRI. MALLESH
S/O VEERSHETTY GANPOOR,
AGED ABOUT 36 YEARS
RESIDING AT HOUSE NO.16-1-45,
IRAPPA GANPOOR NIVASA,
BEHIND GUMPA ALLAMPRABHU
BIDAR-585403.
...PETITIONER
(BY SRI. MADHUKAR M.D., ADVOCATE)
AND
Digitally 1. STATE OF KARNATAKA
signed by B
NAGAVENI BIDAR WOMEN POLICE STATION,
Location: BIDAR-585401,
High Court REPRESENTED BY THE
Of ADDL. STATE PUBLIC PROSECUTOR,
Karnataka HIGH COURT OF KARNATAKA
KALABURAGI-585103.
2. SMT. ROOPA S. KOTEGOUDAR,
AGED ABOUT 44 YEARS
STATE GOVT. EMPLOYEE,
CHILD WELFARE COMMITTEE,
(DEPARTMENT OF WOMEN &
CHILD DEVELOPMENT)
MYLURU, BIDAR-585403.
[email protected]
-2-
NC: 2023:KHC-K:9257
CRL.P No. 201724 of 2023
3. SMT. SADHANA
MOTHER OF VICTIM
C/O SHAKUNTALA HULSOORE,
NEAR DCC BANK,
OPPOSITE OLD POST OFFICE,
BIDAR-585401.
...RESPONDENTS
(BY SRI. JAMADAR SHAHABUDDIN, HCGP FOR R1 & R2;
SRI. SANJAY A. PATIL, ADVOCATE FOR R3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 OF
CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN THE
EVENT OF PETITIONER IS ARRESTED IN CRIME NO.66/2023 BY
RESPONDENT POLICE I.E. BIDAR WOMEN POLICE STATION,
PENDING ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BIDAR FOR THE ALLEGED OFFENCES PUNISHABLE UNDER
SECTION 8, 11(III) AND 12 OF POCSO ACT, 2012 AND 354(A)(3) OF
INDIAN PENAL CODE, 1860.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner-accused under
Section 438 of Cr.P.C., seeking anticipatory bail in Crime
No.66/2023 registered by Bidar Women Police Station,
Bidar District, for the offences punishable under Sections
8, 11(iii) and 12 of the Protection of Children from Sexual
Offences Act, 2012 and Section 354(A)(3) of Indian Penal
Code, 1860.
NC: 2023:KHC-K:9257
2. Heard learned counsel for the petitioner,
learned High Court Government Pleader for respondent
Nos.1 & 2 - State and learned counsel for respondent
No.3.
3. The case of the prosecution is that on the first
information filed by respondent No.2-Government
Employee, Child Welfare Committee (Department of
Women and Child Development), Myluru, Bidar, the Police
have registered the FIR.
4. Respondent No.3, mother of the victim girl had
married to one Siddalingeshwar and out of the said
wedlock, respondent No.3 is having two daughters. The
victim girl is elder daughter of respondent No.3. Said
Siddalingeshwar died on 19.09.2014. Thereafter,
respondent No.3 got married to the petitioner. When both
of them were residing together, the petitioner is alleged to
have sexually harassed the victim girl by touching her
private parts etc. The victim did not inform the same to
NC: 2023:KHC-K:9257
her mother, but, subsequently, she has informed about
the act of the petitioner to the Principal of her School.
Later, the information was given to the Child Development
and Protection Officer. Inturn, the information was sent to
the Police for registering the FIR. Accordingly, FIR came
to be registered. After registering the FIR, the Police are
making hectic efforts to arrest the petitioner. Hence, the
petitioner apprehending his arrest in the hands of the
Police approached the Sessions Judge for bail, which came
to be rejected. Hence, he is before this Court.
5. Learned counsel for the petitioner seriously
contended that the petitioner is innocent of the alleged
offence and he has been falsely implicated in this case by
the mother of the victim girl. Respondent No.3 filed suit
before the Family Court for declaration that the petitioner
is her husband and the said suit came to be decreed on
26.06.2023. Challenging the said judgment and decree
passed by the Family Court, the petitioner has filed
Miscellaneous First Appeal before the Division Bench of
NC: 2023:KHC-K:9257
this Court which is pending consideration. Respondent
No.3 has also filed the petition before the learned
Magistrate under the provisions of the Domestic Violence
Act. In the said case, respondent No.3 has stated that
from January-February, 2022, the petitioner stopped
coming to the house. Respondent No.3 has also filed
complaint against the petitioner alleging offences
punishable under Sections 498-A, 323, 504, 506 r/w
Section 149 of IPC. In the said case, the Police after
investigation have filed 'B' Final report. When the
litigations are pending between the petitioner and
respondent No.3, the question of they residing together
and the petitioner sexually harassing the victim girl does
not arise. Learned counsel has also produced the
documents to show that the victim and respondent No.3
have refused to undergo medical examination and that
itself shows that it is a false case registered against the
petitioner. He also submitted that the petitioner has been
falsely implicated by the mother of the victim girl only to
NC: 2023:KHC-K:9257
settle her personal score. Accordingly, he prayed for grant
of anticipatory bail.
6. Learned counsel for the petitioner has relied
upon the order passed by the Kerala High Court in the
case of xxxxx vs. State of Kerala and another in Bail
Appl.No.1193/2023 disposed of on 07.03.2023
wherein in similar circumstances, the Court has granted
anticipatory bail to the accused.
7. Per contra, learned counsel for respondent No.3
seriously objected the petition contending that the
petitioner who is the step father of the victim girl has
shown porn videos to the victim girl and also sexually
harassed her by touching her private parts in the midnight
when she was sleeping in the house. Though the victim
girl was sexually harassed for two years, she was not able
to tell the same to her mother-respondent No.3, as the
petitioner had threatened her with dire consequences.
Subsequently, she informed about the act of the petitioner
to her Principal. Later on, intimation was given to the
NC: 2023:KHC-K:9257
CDPO and complaint came to be filed. The Police are
required to seize the mobile phone and collect the porn
video clippings and therefore, the petitioner is required for
custodial interrogation. Hence, the petitioner is not
entitled for anticipatory bail. Accordingly, he prayed for
dismissal of the petition.
8. Learned High Court Government Pleader
appearing for respondent Nos.1 and 2 objected for
granting bail and argued on the similar lines as that of
learned counsel for respondent No.3. Accordingly, he
prayed for dismissal of the petition.
9. Having heard the learned counsel for the
parties, I have perused the records.
10. On perusal of the records, it reveals that
respondent No.3, mother of the victim girl had married to
one Siddalingeshwar and out of the said wedlock,
respondent No.3 is having two daughters. The victim girl
is the elder daughter, aged about 16 years. Said
NC: 2023:KHC-K:9257
Siddalingeshwar died on 19.09.2014. Thereafter,
respondent No.3 married to the petitioner. The said
marriage is the first marriage for the petitioner and the
second marriage for respondent No.3. Both of them were
residing together and there was dispute between them. It
is not in dispute that respondent No.3, mother of the
victim girl filed suit against the petitioner in
O.S.No.6/2022 at Family Court, Bidar for declaration and
injunction against the petitioner not to perform his second
marriage. The said suit came to be decreed on
26.06.2023. Challenging the said judgment and decree
passed by the Family Court, the petitioner has filed an
appeal in Miscellaneous First Appeal No.202785/2023 and
the same is pending before the Division Bench of this
Court which clearly reveals that there is dispute between
the petitioner and respondent No.3 regarding very
performance of marriage itself. It is also seen from the
documents produced by the learned counsel for the
petitioner that the mother of the victim girl has filed
complaint in Crime No.65/2022 of Bidar Women Police
NC: 2023:KHC-K:9257
Station, Bidar District, for the offences punishable under
Sections 498-A, 323, 504, 506 r/w Section 149 of IPC.
Subsequently, during the investigation, respondent No.3
has given statement before the Police that she has filed
false complaint on the mistaken fact. Therefore, the Police
have filed 'B' Final report on 20.06.2023 and as per the
submission of learned counsel for respondent No.3, 'B'
final report has been challenged by respondent No.3,
mother of the victim girl by filing protest memo.
Therefore, the litigation between the petitioner and
respondent No.3 is in existence.
11. Learned counsel for the petitioner has brought
to the notice of the Court to paragraph-10 of the petition
filed by respondent No.3 in Criminal Miscellaneous
No.644/2023 under Section 12 of the Domestic Violence
Act, wherein respondent No.3 has stated that the
petitioner stopped coming to the house from January-
February, 2022 onwards and his behavior suddenly
changed as he was contacting some other girl for getting
- 10 -
NC: 2023:KHC-K:9257
married and he has neglected respondent No.3 which
indicates that there was litigation between the husband
and wife. The very marriage itself is challenged before the
Division Bench of this Court.
12. In the present case, the alleged incident has
taken place in the midnight of 09.08.2023. Perusal of the
documents produced by the learned counsel for the
petitioner reveals that petitioner and respondent No.3,
mother of the victim girl were litigating both in civil Court
and in Domestic Violence proceedings and they were
residing separately. Such being the case, without
conducting investigation, it is very difficult for the
prosecution to prove that the petitioner was residing with
respondent No.3, mother of the victim girl and he has
sexually harassed the victim girl on 09.08.2023 in the
midnight. It is also seen from the records that in the
objections filed by the Investigating Officer to the petition
seeking anticipatory bail before the Sessions Court, the
Investigating Officer has stated that the victim girl and
- 11 -
NC: 2023:KHC-K:9257
respondent No.3 did not give consent for the medical
examination of the victim girl to know any sexual assault
committed on the victim girl. The only contention of the
learned counsel for the petitioner is that the petitioner has
been falsely implicated by respondent No.3, mother of the
victim girl only to settle her personal score. Such being
the case, the possibility of false implication of the
petitioner cannot be ruled out. The matter requires
detailed investigation to know as to whether the petitioner
has sexually harassed the victim girl aged about 16 years
or not and whether he is required for investigation or not,
for the purpose of recovering mobile phone in which the
petitioner is alleged to have shown porn video clippings to
the victim girl. The complaint has been registered on
03.11.2023, by which time, the petitioner could have
deleted the video graphs from the mobile phone and
destroyed the video clippings. However, with the help of
Cyber Police, the Police can retrieve the porn videos, if
any, found in the mobile phone of the petitioner.
- 12 -
NC: 2023:KHC-K:9257
13. In similar case, the learned Single Judge of
Kerala High Court in Bail Appl. No.1193/2023 disposed of
on 07.03.2023, has granted anticipatory bail by relying
upon the judgment of the Division Bench of Kerala High
Court. Hence, I am of the view that the petitioner is
entitled for anticipatory bail.
14. Considering the facts and circumstances of the
case, I am of the view that, without expressing any
opinion on the merits of the case and by imposing
stringent conditions, if the petitioner is granted
anticipatory bail, no prejudice would be caused to the
prosecution case. Hence, I pass the following:
ORDER
The Criminal Petition is allowed.
The respondent - Police are directed to release the
petitioner-accused on bail in the event of his arrest in
Crime No.66/2023 registered by Bidar Women Police
Station, Bidar District, for the offences punishable under
- 13 -
NC: 2023:KHC-K:9257
Sections 8, 11(iii) and 12 of the Protection of Children
from Sexual Offences Act, 2012 and Section 354(A)(3) of
Indian Penal Code, 1860, subject to the following
conditions:
(i) Petitioner shall execute a personal bond
for a sum of Rs.2,00,000/- with one
surety for the likesum to the satisfaction
of the Investigating Officer;
(ii) Petitioner shall surrender before the
Investigating Officer within one week
from the date of receipt of certified copy
of this order;
(iii) Petitioner shall not indulge in similar
offences strictly;
(iv) Petitioner shall not directly or indirectly
tamper with any of the prosecution
witnesses;
(v) Petitioner shall appear before the
Investigating Officer and mark his
attendance on every day between 10.00
a.m., and 4.00 pm., for a period of one
- 14 -
NC: 2023:KHC-K:9257
week and thereafter, the petitioner shall
appear before the Investigating Officer
once in a week, on every Monday between
10.00 a.m. and 4.00 p.m. for a period of
four weeks and thereafter, as and when
called for by the Investigating Officer, for
the purpose of investigation.
(vi) Petitioner shall be deemed to be in
custody for the purpose of recovery under
Section 27 of the Indian Evidence Act;
Sd/-
JUDGE
NB
CT:SI
