Nawaz vs State of Karnataka

H. Billappa, J.

The petitioner who is accused No. 5 in Cr. No. 192/2013 of Konaje Police Station has filed this petition under section 439 Cr.P.C. praying for grant of bail.

It is stated in the petition that the petitioner is innocent of the offences alleged against him and he has no bad antecedents. The petitioner is ready to abide by any conditions that may be imposed by this court. Therefore, the petitioner has prayed for grant of bail.

A case in Cr. No. 192/2013 of Konaje Police station has been registered against A1 Subhash, A2 Munna and three others for the offences punishable under section 354-c, 506, 384, 395, 323, 354 and 363 of IPC. It is alleged, the complainant i.e., the victim was doing her internship. She was working with Dr. Hambal who is a post graduate student. The victim was acquainted with Dr. Hambal since three months. On 18.12.2013, the victim had gone out for dinner with Dr. Hambal. While returning, around 11 p.m., near Ayyappa Temple two unknown persons came near the car and asked Dr. Hambal to get down from the car. There was verbal exchange between them. Thereafter, the two unknown persons started assaulting Dr. Hambal with their hands. At that time, one more bike came with three persons. They pushed Dr. Hambal into the back seat of the car. One of the accused started driving the car. The victim started shouting and asked for help. The accused blind folded the victim and Dr. Hambal. After one hour, the accused took the victim and Dr. Hambal near a pond surrounded by trees. The accused asked the victim and Dr. Hambal as to how much they can give them. The victim offered all the money she had which was around Rs. 1,200/-. The accused did not take the money. The accused were demanding money to a tune of about Rs. 50 lakhs. When the victim and Dr. Hambal told the accused persons that it was not possible for them to give so much of money, the accused took them to one abandoned house which was surrounded by trees. The accused compelled the victim and Dr. Hambal to kiss each other. When they refused, A2 Munna threatened them saying, if they do not kiss each other, all the accused persons would kiss them. The victim and Dr. Hambal were forced to kiss each other. It was videographed. Thereafter, A2 Munna and A1 Subhash forced Dr. Hambal to remove his shirt and innerwear. The accused persons compelled the victim to have oral sex with Dr. Hambal. When the victim resisted it, A1 Subhash assaulted the victim and threatened if they do not have oral sex, they would do it. They compelled the victim to remove her bras and made Dr. Hambal to suck her breast. When the victim resisted, A1 Subhash assaulted the victim. It is alleged, A2 Munna was molesting the victim by touching her vital parts of the body, legs, breast etc. When the victim resisted it, he assaulted her with hands. He told that if the victim can have sexual act with Hambal, why not with him. It is alleged the victim was compelled to perform sexual act. To save their lives, the victim had to remove her clothes and perform sexual act. Thereafter, the victim was taken to some other place and left her at about 9.30 a.m., near Thokut on 19.12.2013 to get Rs. 3 lakhs by 12 noon or else they would kill Dr. Hambal. Dr. Hambal remained with the accused.

After the investigation charge sheet has been filed for the offences punishable under sections 143, 147, 148, 120-B, 341, 323, 326, 354, 354-B, 364-A, 384, 376-D, 395, 342, 307, 506 and 201 r/w Sec. 149 of IPC and Sec. 66(e) of the I.T. Act.

The state has filed objections contending that the offences alleged are heinous in nature. The petitioner is a rowdy sheeter and he is involved in six cases. If bail is granted, it would hamper the trial. Therefore, the bail petition may be rejected.

The learned counsel for the petitioner contended that the petitioner is innocent of the offences alleged against him. The name of the petitioner does not find place in the first information. The overt act is attributed to A1 and A2. In the further statement, no overt act has been attributed to the petitioner. In the statement of the victim under Section 164 of Cr.P.C. there is no reference to the name of the petitioner. CW2 Dr. Hambal in his 161 Cr.P.C. statement has stated that the petitioners and two others were waiting outside the cave to see that he will not run away. In his 164(5) Cr.P.C. statement Dr. Hambal has stated that the petitioner has assaulted him with the club. The victim has not subjected herself for medical examination. Therefore, there is no medical evidence regarding sexual act. The wound certificate of doctor Hambal shows that he was assaulted by unknown persons. Though, some criminal cases are pending against the petitioner, he is acquitted in two cases and he is granted bail in two cases. In two cases, he has not applied for bail. The petitioner is in custody since 21.12.2013. After the investigation charge sheet has been filed. The offences alleged in Cr.NO.338/2013 and Cr. No. 59/2014 are not serious in nature. There is no prima facie case against the petitioner. Therefore, the petitioner can be granted bail.

As against this, the learned Government Pleader submitted that the petitioner has criminal antecedents. Further he submitted that the material on record indicates the involvement of the petitioner in the alleged crime. The offences alleged are serious in nature. Therefore, the petitioner cannot be granted bail.

I have carefully considered the submissions made by the learned counsel for the parties.

It is relevant to note, it is alleged, that on 18.12.2013, when the victim and Dr. Hambal were returning after taking dinner, at about 11 p.m. near Ayyappa temple, two unknown persons came near the car. They asked Dr. Hambal to get down from the car. Thereafter, they started assaulting Dr. Hambal. At that time, one more bike came with three persons. Dr. Hambal was pushed into the back seat of the car. One of the accused persons started driving the car. The victim and Dr. Hambal were blind folded. They were taken near a pond surrounded by trees. The accused demanded money from the victim and Dr. Hambal. The victim offered about Rs. 1,200/-. The accused demanded Rs. 50 lakhs. When the victim and Dr. Hambal told the accused it is not possible for them to give so much of money, the accused took them to an abandoned house. It is alleged, the accused compelled the victim and Dr. Hambal to kiss each other. One person by name Munna i.e., A2 threatened them if they do not kiss each other, he would do it. Thereafter A1 Subhash and A2 Munna compelled Dr. Hambal to remove his shirt and innerwear. The accused persons compelled the victim to have oral sex with Dr. Hambal. It is alleged, A1 Subhash assaulted the victim when she resisted it. A2 Munna molested the victim by touching her vital parts of the body, legs, breast etc., When resisted, he assaulted the victim. It is alleged, the victim was compelled to perform sexual act. To save their lives, the victim had to remove her cloth and perform sexual act. Thereafter, the victim was left around 9.30 a.m., near Thokut to get Rs. 3 lakhs by 12 noon or else Dr. Hambal would be killed. The name of the petitioner is not mentioned in the first information. It was submitted by the learned counsel for the petitioner that no over act has been attributed to the petitioner in the further statement of the victim. CW 2 Dr. Hambal in his statement under section 161 of Cr.P.C. has stated that the petitioners and two others were waiting outside the cave to see that he will not run away. The statement of the victim has been recorded under 164 of Cr.P.C. on 23.12.2013. It was submitted that there is no reference to the name of the petitioner. In his statement under section 164 of Cr.P.C., Dr. Hambal has stated that the petitioner assaulted him with the club by saying that he is moving with Hindu girl. It is alleged, the victim was compelled to perform sexual act. The medical report shows that the victim has declined to subject herself for medical examination. The wound certificate of Dr. Hambal shows that he was assaulted by unknown persons. No doubt, some criminal cases are pending against the petitioner. In this case, the name of the petitioner is not mentioned in the first information. It was submitted that no specific over act has been attributed to the petitioner in the further statement of the victim or 164 Cr.P.C. statement. CW.2 Dr. Hambal has stated that the petitioner and two others were waiting outside the cave to see that he will not run away. In 164(5) Cr.P.C. statement of Dr. Hambal has stated that the petitioner assaulted him with the club saying that he is moving with Hindu girl. The petitioner is in custody since 21.12.2013. After investigation charge sheet has been filed. Having regard to the nature of material on record against the petitioner in this case and in the circumstances of the case, the petitioner can be granted bail subject to some conditions.

Accordingly, the criminal petition is allowed and the petitioner is granted bail in Crime No. 192/2013 of Konaje Police Station, Mangaluru, subject to the following conditions:

"(i) The petitioner shall be released on bail in Crime No. 192/2013 of Konaje Police Station, Mangaluru, (S.C. No. 69/2014 of VI Additional District and Sessions Judge, D.K. Mangaluru, on his executing a bond for a sum of Rs. 1,00,000/- with two sureties for the likesum to the satisfaction of the concerned court.

(ii) The petitioner shall not meet or tamper with the witnesses or evidence directly or indirectly.

(iii) The petitioner shall not indulge in any or similar offences.

(iv) The petitioner shall mark his attendance in Konaje Police Station once in a week on Sunday between 10 a.m. and 5 p.m. till the conclusion of the trial.

(v) The petitioner shall not leave the jurisdiction of the trial court without prior permission.

(vi) The petitioner shall appear before the Court regularly without fail.

(vii) If the petitioner violates any condition, the respondent-State can move for cancellation of the bail."