Karnataka High Court
Vinil D Souza vs State Of Karnataka on 11 July, 2023
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO. 2461 OF 2023
BETWEEN:
1. VINIL D SOUZA
S/O. VINCENT DSOUZA
AGED ABOUT 30 YEARS
R/A. # BEHIND WATER
TANK DANTARAMAKKI
JYOTHI NAGAR
CHIKKAMAGALURU-577 102.
...PETITIONER
(BY SRI. R.B.SADASIVAPPA, ADVOCATE FOR
SRI. SURENDRA Y.S., ADVOCATE)
AND:
1. STATE OF KARNATAKA
CHIKKAMAGALURU RURAL POLICE STATION
REP. BY HCGP
HIGH COURT OF KARNATAKA
BANGALORE-560 001.
2. SANDYA RODRIGUES
D/O BAPTIST RODRIGUES
AGED ABOUT 30 YEARS
BANK EMPLOYEE
ARAVINDANAGAR
CHIKKAMAGALURU CITY-577 102.
...RESPONDENTS
(BY SRI.R.D.RENUKARADHYA, HCGP FOR R1;
SRI. DINESH KUMAR K. RAO, ADVOCATE FOR R2)
-2-
THIS CRL.P IS FILED U/S 438 CR.PC PRAYING TO
ENLARGE THE PETITIONER ON ANTICIPATORY BAIL IN THE
EVENT OF HIS ARREST IN THE CR.NO.50/2023 OF
CHIKKAMAGALURU RURAL POLICE FOR THE OFFENCE
PUNISHABLE UNDER SECTION 376(2)(K), 376(2)(N), 323, 417,
504, 506 R/W 34 OF IPC PENDING ON THE FILE OF THE PRL.
DISTRICT AND SESSIONS COURT, CHIKKAMAGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDER, THIS DAY PRONOUNCED THE
FOLLOWING:
DATE OF RESERVED THE ORDER : 04.07.2023
DATE OF PRONOUNCEMENT OF THE ORDER: 11.07.2023
ORDER
The petitioner has preferred this petition under
Section 438 of Cr.P.C. seeking anticipatory bail in Crime
No.50/2023 registered at Chikkmagaluru Rural Police
Station, for the offence punishable under Sections
376(2)(k), 376(2)(n), 323, 417, 504, 506 r/w 34 of IPC.
2. I have heard the submissions of the learned
counsel for petitioner, the learned High Court Government
Pleader for the State and the learned counsel appearing
for respondent No.2/defacto complainant.
3. The complaint is lodged by the victim alleging
physical and sexual assault and cheating by the petitioner.
The complaint averments disclose that the petitioner and
the victim knew each other for the past 8 years and both
of them were in love for 7 ½ years. It is alleged that with
a promise of marriage, the petitioner took the victim to
various places like Kerala, Bengaluru, Gokarana etc, but
postponed the marriage on the pretext that his sister is
not yet married. Further, the petitioner used to suspect
her and abuse and physically assault her. In the month of
February 2019, petitioner is alleged to have taken a girl to
Gokarana and stayed with her in a home stay and when
the victim informed this to his mother, he apologized and
assured not to repeat the same. But, after few days again
assaulted the victim and in this regard a complaint was
lodged at Basavanahalli Women Police Station, wherein
once again he apologized etc. It is alleged that he used to
abuse her using foul language suspecting her character
and committed sexual intercourse with her several times
and he was taking ganja and due to depression she had
even attempted to commit suicide.
4. The learned counsel for petitioner has
contended that the allegations are false and even
accepting the entire allegations, the ingredients of the
offence alleged are not made out. He contends that the
petitioner and the complainant were together for 8 years
and the complainant being a major has consciously and
willingly developed friendship with the petitioner. He has
contended that there are no specific dates mentioned in
the complaint as to when the alleged incidents have taken
place and there is no reason for the complainant to remain
silent for 8 years. He has contended that the petitioner
and his family members are lugged in for extraneous
reasons. He further contends that the complainant has
suppressed the true facts and concocted a story without
any supporting material.
5. The learned counsel for petitioner has further
contended that the complainant has mentioned about the
money transaction between the two which shows that on
account of money dispute she has lodged a false complaint
making absurd allegations. He has contended that the
complainant is a bank employee and she developed
acquaintance with the petitioner and started to interact
with him as they were from the same community and then
developed friendship and now she is taking advantage of
the same.
6. The learned counsel further submits that the
petitioner hails from a respectable family and in view of
the false complaint lodged against him, the police are
making hectic efforts to arrest him. He therefore seeks to
allow the petition and enlarge the petitioner on
anticipatory bail.
7. The learned counsel for respondent No.2 has
filed statement of objections. He has contended that there
are prima facie allegations against the petitioner that he
has physically and sexually assaulted the victim. It is
contended that the petitioner has duped the victim with a
false promise of marriage and misused her sexually. He
contends that the petitioner has assaulted the victim and
caused bleeding injuries and therefore, he is not entitled
for anticipatory bail.
8. The learned High Court Government Pleader
has contended that the offence alleged are serious in
nature. The petitioner is absconding and in the event of
grant of anticipatory bail, he may not cooperate with the
investigation of the case. He has therefore sought to
reject the petition.
9. I have given my anxious consideration to the
rival submissions. The petitioner is accused of committing
physical and sexual assault on the victim and alleged to
have cheated her by inducing her to have sexual
intercourse with him on a false pretext of marriage. It is
no doubt true the allegations are serious in nature.
However, the question is as to whether or not the
ingredients of the offence alleged against the petitioner
are made out at this stage. Admittedly, the petitioner and
the victim have acquaintance with each other for the past
8 years. It is stated in the complaint that for the last 7 ½
years they were in love with each other. The offence is
alleged to have committed from 01.06.2016 to
06.01.2023.
10. According to the learned counsel for petitioner,
complainant is a major and she is an educated woman and
she has willingly joined the company of the petitioner and
therefore, even accepting the case of prosecution, it
cannot be said that the ingredients of the offence alleged
against the petitioner are made out. Relying on a
judgment of the Hon'ble Apex Court in 'Dhruvaram
Murlidhar Sonar Vs. State of Maharashtra and others'
reported in 'AIR online 2019 SC 68' he has contended that
there is distinction between mere breach of promise and
not fulfilling false promise and in the case on hand if the
allegations in the complaint are accepted in the entirety
the same do not prima facie constitute any offence
alleged.
11. Whether the complainant voluntarily gave her
consent or whether her consent was obtained under
misconception of fact is a matter which has to be
established during trial. In Deepak Gulati Vs. State of
Haryana reported in (2103) 7 SCC 675, it is held that 'the
Court must be assured that the accused from the very
beginning acted with malafide intention of seducing the
prosecutrix by making false promise and not keeping his
promise and mere breach of promise without malafide
intention cannot amount to deception'.
12. This Court cannot make any observation on the
merits of the case at this stage. For the purpose of
consideration of the prayer seeking anticipatory bail, it
may be noticed that the parties are known to each other
for a long period and the offence is alleged to have
committed from 01.06.2016. Both the learned counsel
have submitted about some financial transaction between
the parties, which may not be very relevant for the
purpose of disposal of this petition. However, the fact
remains that there was some financial transaction between
the petitioner and the complainant. In the statement of
objections, it is alleged that the petitioner has extracted
money from the complainant and taken loan in her name
and he used the same for his business purpose and then
failed to repay the loan installments as promised by him.
It is contended by the learned counsel for petitioner that
the second respondent wanted to involve herself in the
business of the petitioner as a partner, which was not
entertained and due to the same she has made false
allegations.
13. The prosecution has to establish that the
petitioner from the very beginning acted with malafide
intention of seducing the victim by making false promise of
marriage. Further, other allegations have to be proved in
due course. Petitioner has undertaken to cooperate with
the investigation. His custodial interrogation is not
necessary. Hence, his arrest and detention will not serve
any purpose. Considering the above facts and
circumstances, I am of the view that, without expressing
any view on the merits of the case, the relief sought by
the petitioner can be granted by imposing conditions.
Hence, the following:
ORDER
i. Petition is allowed.
ii. Petitioner/accused is directed to be released in
the event of his arrest in Crime No.50/2023
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registered at Chikkmagaluru Rural Police
Station, subject to the following conditions:
(a) Petitioner shall appear before the
Investigation Officer within a
period of one week from the date
of receipt of a copy of the order
and shall execute a personal bond
in a sum of Rs.2,00,000/-
[Rupees two lakhs only] with a
likesum surety.
(b) He shall furnish proof of his
residential address and shall
inform the Court regarding
change in the address, if any.
(c) He shall cooperate with the
investigation and shall not tamper
with the prosecution witnesses.
(d) He shall not threaten/induce or
try to influence the victim in any
manner.
(e) He shall be regular in attending
the Court proceedings.
Sd/-
JUDGE
HB
