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IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2021
BEFORE
THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO.4560 OF 2021
BETWEEN:
Mr. Shoaib Ur Rahman,
S/o. Habeeb Ur Rehaman,
Aged about 34 years,
R/at: Nagarathna,
3rd Cross, Udayagiri Extension
Hassan-573 201.
… Petitioner
[By Sri. Rahamatulla Kothwal, Advocate]
AND:
State of Women Police,
Hassan,
Rep. by State Public Prosecutor.
… Respondent
[By Sri. Vinayaka V.S , HCGP]
This Criminal Petition is filed under section 438 of
Cr.P.C., praying to enlarge the petitioner on bail in the
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event of his arrest in Crime No.37/2018 of Hassan Women
Police Station, Hassan for the offence p/u/s 498A, 323,
376, 504, 34 of IPC, Sections 9, 10, 11 of Child Marriage
Restraint Act and Sections 4 and 6 of POCSO Act.
This criminal petition coming on for orders through
video conference, this day the court made the following:
ORDER
This petition is preferred under Section 438 of Cr.P.C. to
enlarge the petitioner/Accused No.1 on anticipatory bail in a
case registered in Crime No.37/2018 of Hassan Women Police
Station.
2. Heard the learned counsel for petitioner and the
learned High Court Government Pleader for respondent-State.
3. The aforesaid case was registered on a complaint
lodged by the victim against accused Nos.1 to 3, for offences
punishable under Sections 498A, 323, 376, 504 r/w 34 of IPC
and Sections 4, 6 of POCSO Act, 2012 and Sections 9, 10, 11
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of Child Marriage Restraint Act. On completion of investigation
charge sheet has been filed against Accused No. 1 to 5.
4. In brief, the case of the prosecution is that the
marriage of victim, a minor was performed with Accused No.1
on 26.08.2017. At the time of marriage 150 grams of gold
ornaments and cash of Rs.2,00,000/- as well as household
articles were given to Accused No.1. Marriage was performed
as per Muslim customs. Subsequent to the marriage, Accused
No.1 committed forcible penetrative sexual assault on her for
about two and half months. Thereafter, he went abroad. It is
the further case of prosecution that Accused Nos.2 and 3
namely the elder brother and mother of Accused No.1 was
picking up quarrel with the victim for petty reasons and
abusing her in filthy language and also physically abusing her.
Accused No.3 attempted to commit rape on her and when the
victim intended to go to Qatar to join her husband, they
abused her and prevented her from joining her husband and
drove her out of the house.
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5. Learned counsel appearing for the petitioner has
contended that the petitioner is innocent and the entire
allegations are false and concocted. He submits that a case
was registered on a complaint lodged by the elder brother of
the petitioner against the victim and her family members
which was registered in Crime No.77/2018 at Hassan
Extension Police Station, Hassan and therefore, as a counter
blast a false case has been registered against the petitioner
and his family members. He submits that in the complaint
lodged by Accused No.2 the police have filed charge sheet
against the complainant and others. He submits that in the
present case all other accused persons are on bail. He
submits that the petitioner has no bad antecedents and he is
ready and willing to abide by any conditions and accordingly
seeks to allow the petition.
6. The learned High Court Government Pleader has
opposed the petition contending that the victim was a minor
at the time of incident and her marriage was performed with
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the petitioner and thereafter he committed forcible
penetrative sexual assault on her. Further accused Nos. 1 to
3 have physically and mentally abused the victim. He
contends that the victim has given her statement under
section 164 of Cr.P.C. reiterating the complaint averments.
Therefore, he submits that there is a prima facie case made
out against the petitioner and seeks to reject the petition.
7. It is alleged by the prosecution that the victim was
a minor at the time of her marriage with the petitioner.
Accused Nos.4 and 5 are the parents of the victim. Further
allegations are that after her marriage the petitioner herein
committed forcible sexual intercourse for about two and half
months and thereafter he went to Qatar. Accused Nos.2 and
3, the elder bother and mother of the victim physically and
mentally harassed and tortured the victim. It is also alleged
that accused No.2 attempted to commit rape on her and the
accused drove the victim out of their house.
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8. Accused Nos. 2 to 5 have been enlarged on bail
by the Sessions Court. According to the prosecution date of
birth of the victim is 24.12.1999 and she was aged about 17
years 9 months at the time of incident. Admittedly the
marriage was performed on 26.08.2017. According to the
complaint averments after two and half months from the date
of marriage, the petitioner went to Qatar. On 09.02.2018 a
case was registered on the complaint lodged by petitioner’s
brother against the complainant, her parents and her uncle in
Crime No.77/2018 of Hassan Extension Police Station for
offences punishable under Sections 448, 504, 506, r/w 34 of
IPC. Charge sheet has been filed in the said case. It appears
that after filing of the charge sheet in the said case, the
present complaint was lodged by the victim before the
respondent – Police on 04.06.2018. In the complaint lodged
by petitioner’s brother it is alleged that the victim and other
accused persons trespassed into the house of the petitioner
and picked up quarrel etc. and this victim threatened them
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saying that she will file a frivolous dowry harassment case
against all the family members.
9. The allegations made against the petitioner has to
be established by the prosecution in a full fledged trial. All
the other accused persons have been enlarged on bail. It is
submitted that petitioner’s mother died recently. The
petitioner has no bad antecedents. He has undertaken to
abide by conditions and also to appear before the Trial Court
on all dates hearing. Hence, by imposing suitable conditions,
relief sought by the petitioner can be granted.
Accordingly, the following
ORDER
Petition is allowed.
Petitioner/accused No.1 in Crime No. 37/2018 of Hasan
Women Police Station, pending in Spl.C.No.749/2018 on the
file of Additional District and Sessions Judge, FTSC-I (Special
Court for Trial of Cases filed under POCSO Act) is ordered to
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be released in the event of his arrest, subject to following
conditions:-
i) Petitioner shall appear before the jurisdictional
Court within a period of 10 days from the date
of receipt of copy of the order and shall
execute a personal bond in a sum of
Rs.1,00,000/- (Rupees One Lakh only) with
two sureties for likesum to the satisfaction of
the learned Judge.
ii) Petitioner shall furnish proof of his residential
address and shall inform the Court in case of
any change in the address.
iii) Petitioner shall appear before the Investigating
Officer within a period of one week thereafter
and he shall cooperate with the further
investigation of the case if any.
iv) Petitioner shall not tamper with the
prosecution witnesses either directly or
indirectly.
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v) Petitioner shall appear before the Trail Court
on all dates of hearing.
Sd/-
JUDGE
AS/VN