Misbahuddin S vs State Of Karnataka

K. Natarajan, J

This petition is filed by the petitioner/accused No.1 under Section 438 of Cr.P.C. for granting anticipatory bail in Crime No.239/2021 registered by the Whitefield Police Station, Bengaluru, for the offences punishable under Sections 406 and 420 of IPC and subsequently added Section 376 of IPC.

Heard the learned counsel for the petitioner, the learned High Court Government Pleader appearing for the respondent-State and the learned counsel for the defacto complainant.

The case of the prosecution is that on the complaint of the victim aged about 30 years, the police initially registered a case against the petitioner for the offences punishable under Sections 406 and 420 of IPC on 16.11.2021. It is alleged by her that she was a divorcee and came in contact with this petitioner in the year 2017. Previously, she used to call him as brother, but later the petitioner is said to have insisted her to marry him as she was a divorcee and want to give life to her and thereafter both of them fell in love. The petitioner taking advantage of the victim, as the victim is said to be an anchor and reporter said to have taken Rs.52 lakhs from the victim and subsequently at the instance of the victim he also said to be borrowed an amount of Rs.10 Crores from a politician through bank transfer, but did not return the same. Subsequently, he agreed for marriage and date was also fixed on 30.06.2021, but later he was absconded and switched off the phone. Therefore, a complaint came to be lodged. Subsequently, due to the pendency of the investigation, the petitioner approached the High Court under Section 482 of Cr.P.C. The further proceedings and investigation is said to be stayed. Subsequently, the petition of the petitioner came to be dismissed by a Co-ordinate Bench of this Court on 08.06.2022 and thereafter he moved for anticipatory bail. In the meanwhile, the complainant gave the further statement to the police on 15.06.2022, alleging that the petitioner sexually assaulted her by promising to marry her. Therefore, the police invoked the provisions under Section 376 of IPC on 16.06.2022 and took up the investigation. However, the police are making hectic efforts to arrest the petitioner and hence he is before this Court seeking anticipatory bail.

The learned counsel for the petitioner submits that there is no mention about committing of sexual assault in the previous complaint filed on 16.11.2021. After the petitioner obtained the stay from the High Court by filing a criminal petition under Section 482 of Cr.P.C., Section 376 of IPC came to be added to harass the petitioner. However, the previous bench referred the matter to the Mediation Center where the parties have undertaken to settle their issues. Therefore, the learned counsel for the petitioner prays for granting of anticipatory bail.

Per contra, the learned High Court Government Pleader appearing for the respondent-State objected to the bail petition.

The learned counsel for the defacto complainant also formally objected the petition.

Having heard the arguments of the respective learned counsel and also on perusal of the material available on record, it reveals that the offences under Sections 406 and 420 of IPC has been registered in the previous occasion and after obtaining the stay order from this Court under Section 482 of Cr.P.C., the complainant gave further statement on 15.06.2022, due to which the police added Section 376 of IPC. The petitioner is an adult and the victim is also an adult woman and divorcee. Therefore, any sexual intercourse between them cannot be considered as rape. Of course, the petitioner had promised to marry the victim and failed to marry her. However, both of them tried to settle the issues out of the Court. Considering the facts and circumstances of the case, I am of the view that without expressing any opinion on the merits of the case by imposing certain conditions, if anticipatory bail is granted, no prejudice would be caused to the case of the prosecution. Hence, I pass the following:

ORDER

The criminal petition is allowed. The respondent – Police are directed to release the petitioner/accused No.1 on bail in the event of his arrest in Crime No.239/2021 registered by the Whitefield Police Station, Bengaluru, for the offences punishable under Sections 406, 420 and 376 of IPC, subject to the following conditions:

(i) The petitioner shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakh only) with two solvent sureties for the likesum to the satisfaction of the Investigating Officer;

(ii) The petitioner shall surrender himself before the Investigating Officer within fifteen days from the date of receipt of a certified copy of this order;

(iii) The petitioner shall not directly or indirectly tamper with any of the prosecution witnesses;

(iv) The petitioner shall not indulge in any similar offences;

(v) The petitioner shall be deemed custody for the purpose of any recovery under Section 27 of the Indian Evidence Act, 1872;

(vi) The petitioner shall make himself available to the Investigating Officer for interrogation whenever called for.