1. This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner-accused in Crime No.399/2020 (Spl.C.C.No.126/2021) registered by Ramamurthy Nagar Police Station, Bengaluru for the offence punishable under Sections 366, 376, 506 of Indian Penal Code (‘IPC’ for short) and Section 5(L) and 6 of Protection of Children from Sexual Offence Act, 2012 (‘POCSO Act’ for short).

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

3. The factual matrix of the case of the prosecution is that the victim, who is aged about 15 years, was missing and hence, the mother had lodged the complaint with the Ramamurthy Nagar Police Station. In the missing complaint, by suspecting the role of the petitioner, the specific allegation is made against this petitioner that he had taken the victim girl and details of her daughter is also given in the complaint. Based on the complaint, initially the police have registered the case for the offence punishable under Section 363 of IPC., and thereafter, the police have investigated the matter and filed the charge sheet by invoking the offence punishable under Sections 366, 376 and 506 of IPC and 5(L) and 6 of POCSO Act, wherein the specific allegation is made against this petitioner that on 24.10.2020 at about 7.00 p.m., the petitioner went to the house of the victim to speak with her and she replied that no were in the house and not come inside the house. Immediately, he entered inside the house, held her and said that he would marry her and subjected her for sexual act as against her wish and also caused life threat not to disclose the same to any other persons.

4. During the course of investigation, victim girl also produced before the Medical Officer and the Medical officer subjected her for medical examination including the genital examination and gave opinion that hymen is not intact but not given any opinion, whether she was subjected to sexual act or not. In spite of the Medical Officer conducted physical examination and also genital examination, no provisional opinion was given and hence, this Court directed the learned HCGP to keep present the Medical Officer, who conducted the examination of the victim and the Doctor, who appeared before the Court, submits that she has mentioned the details, but she has not given any opinion with regard to the provisional report, whether she was subjected to sexual act or not. In spite of there is a column in the Medical Certificate, the Doctor has not given finding after examination of the victim.

5. The learned counsel appearing for the petitioner would submit that in 164 statement, the victim has not stated anything about subjecting her to sexual act but only she states with regard to the taking of the victim along with the petitioner. Thereafter, victim was stayed with him for a period of 10 days and later, she was secured and hence, there is no prima-facie material against the petitioner.

6. Per contra, the learned counsel appearing for the State would submit that the Doctor examined the victim and even though provisional opinion is not given and on examination, the Doctor has opined that hymen is not intact and hence, it is clear that she was subjected to sexual act and she also aged about 15 years 1 month on the date of subjecting her for sexual act and hence, there is a prima-facie case against the petitioner.

7. Having heard the learned counsel appearing for the petitioner and also learned counsel appearing for the respondent - State and on perusal of the materials on record, at the first instance, the complaint is lodged by the mother by suspecting the role of this petitioner that he might have taken her daughter and hence, at the first instance, the offence punishable under Section 363 of IPC has been invoked and when the victim was secured, subjected her medical examination and thereafter, the police have invoked the offence punishable under Sections 366, 376 and 506 of IPC and 5(L) and 6 of POCSO Act.

8. The victim girl also examined before the learned Magistrate on 30.12.2020 under Section 164(5) of Cr.P.C, wherein she says that both of them fell in love and both of them went to Avalahalli on 26.11.2020 in an Autorikshaw and both of them stayed in the house for a period of 10 days. On 07.12.2020, the police came and apprehended her and also the petitioner and thereafter, the victim girl was given to the custody of her mother.

9. On perusal of 164 statement, the victim girl has not stated anything, whether she was subjected to sexual act or not. No doubt, the doctor, who examined the victim girl, has stated that the hymen is not intact but no provisional opinion is given that whether she was subjected to sexual act or not. According to the prosecution, she was subjected to sexual act on 05.12.2020 and the doctor has examined the victim on 07.12.2020, inspite of within two days of the examination of the victim, the doctor has not opined whether she was subjected to sexual act or not. The very purpose of producing the victim before the Medical Officer for examination is not served on account of callous act of the Medical Officer, who was working in K.C.General Hospital, Bengaluru. As a result of the negligence on the part of the Doctor, there is no material regarding heinous act of the petitioner. The prosecution is also unable to find out the truth, when there is a specific column in the Certificate to give finding and no such finding is given, which is nothing but a negligence on the part of the Doctor, who conducted the medical examination. The very purpose of subjecting the victim girl for medical examination is defeated. Now, the Doctor, who appears before the Court says that she is now resigned the service in the K.C.General Hospital and now, she is practicing privately and the said doctor forgotten the duty entrusted to her and to give report when the victim was subjected to medical examination. Hence, it is appropriate to direct the Principal Secretary for Medical Department to issue circular to the concerned department reiterating the duties of the Doctors, who conduct the medical examination to give report, whether victims are subjected to sexual act or not in order to bring the culprits within the ambit of law.

10. Having considered the materials on record except the report that the hymen is not intact, no other materials are collected against this petitioner. In 164 statement, the victim has not stated anything whether she was subjected to sexual act or not. When such being the factual aspects, there are no prima-facie materials subjecting her for sexual act and the Doctor has also not opined with regard to whether she was subjected to sexual act or not and for other reasons also, the hymen will not be intact. When such being the case, it is a fit case to exercise discretion in favour of the petitioner to enlarge him on bail.

11. In view of the discussions made above, I pass the following:

ORDER

The petition is allowed. Consequently, the petitioner- accused shall be released on bail in connection with Crime No.399/2020 (Spl.C.C.No.126/2021) of Ramamurthy Nagar Police Station, Bengaluru City registered for the offences punishable under Sections 366, 376, 506 of IPC and Section 5(L) and 6 of POCSO Act, subject to the following conditions:

(i) The petitioner shall execute his personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court.

(ii) The petitioner shall not indulge in tampering the prosecution witnesses.

(iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause.

(iv) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Court till the case registered against him is disposed of.

Registry is directed to communicate this order to the Principal Secretary for Medical Department and issue appropriate directions to the concerned competent Medical Officers to give opinion as observed in the order.