1. This petition is filed under Section 438 of Cr.P.C. by petitioner/accused No.1 to enlarge him on anticipatory bail in the event of his arrest in Crime No.137/2021 of APMC Police Station, Belagavi for offence punishable under Sections 323, 354(C), 376(N), 420, 504 and Section 506 of Indian Penal Code,1860(For short herein after referred as ’IPC’).

2. It is the case of petitioner that Crime No.137/2021 was registered on the basis of the complaint lodged by complainant/victim. It is contended by the informant/complainant that she was running Nursery school. She came in contact with accused No.1 through face book. Thereafter, they developed relationship between each other and he used to visit the house of complainant/victim. It is further alleged that on 07.01.2021, said accused No.1-Santosh visited complainant’s house and when she was taking bath and changing dress, he has taken her photos and made videos. It is alleged that he has started threatening her stating that he is having her video and necked photos and he will circulate the same in his friends group. On 26.09.2021, he assured her that he will delete those photos and videos and took her to Goa. On 08.10.2021, he took her to Hotel Fidalgo, at Goa. There he had sexual intercourse with her for two days. Thereafter, on 04.11.2021, the petitioner again came to her house and threatened to circulate her video and again forcibly committed sexual intercourse with her against her will. Then he told her not to inform the said act to anybody and he will take her to his parents and he will marry her. Again by blackmailing her, he had sexual intercourse with her. On 08.10.2021, he took her to Fidalgo Hotel, Goa, there also he has committed sexual intercourse on her for three days. Thereafter, on 15.11.2021 at 6.30 p.m. father and mother of accused called the complainant at C.P.Ed ground and assured arranging her marriage with accused No.1. Then she came to know that petitioner/accused No.1 was already married and his wife left him for about 5 years back. Then she enquired the accused No.1 in this regard. Accused No.1 told her that he will not marry her and threatened her. He also stated that if she marries any other person, he will show her photos and videos and see that said marriage is broken. It is also alleged that accused No.1 has taken the necked photos of petitioner and recorded video while committing sexual intercourse. Thereafter, on 21.11.2021, she came to know that the accused married another girl at Babaleshwar village. On 17.11.2021 also, he threatened her and taken some writings on paper and given to APMC Police Station. Therefore, she has lodged a complaint against petitioner No.1 and his parents. On the basis of the said complaint case in crime No.137/2021 came to be registered for the offence stated above against petitioner and his parents.

3. Heard the learned senior counsel Sri.P.P.Hegde, for Sri.Gurudev Gachchinamath, Advocate for petitioner and Smt.Girija Hiremath, learned High Court Government Pleader for respondent/State and Sri.Veeresh Budihal, Advocate for Prashant F. Goudar for impleading applicant. Perused the material on record.

4. Learned senior counsel Sri.P.P.Hegde for petitioner argued that on reading of complaint, it does not disclose that accused No.1 has committed any forcible sexual intercourse against the victim. It is contended that contents of complaint are also false and imaginary and only to harass the petitioner. The said complaint was filed only to extract money by creating concocted story and to harass the petitioner. It is further argued that petitioner is innocent and law abiding citizen and he has not committed any offence as alleged. There are no ingredients coming under the purview of said offence. Learned counsel also argued that said offences are not punishable with death or imprisonment for life. Learned counsel further argued that if he is not enlarged on bail, he will be put to great hardship. It is contended that petitioner is highly respectable person in the society and is ready to co-operate with the investigation and abide by conditions. He further submits that grant of anticipatory bail is rule and rejection is exception and valuable personal liberty of the petitioner cannot be curtailed. Learned counsel also brought to the notice of the court the documents filed on behalf of the petitioner i.e. abstract of bank statement, wherein the money was transferred from the account of petitioner to the account of respondent/victim. He has also produced certain copy of photos to show that there was no threat given by the petitioner to her. So as to take any disadvantage as revealed from the photos. On the other hand, victim herself is blackmailing him as well as extracting money from him and has filed a false complaint.

5. The learned counsel relied upon the judgment of Hon’ble Supreme Court in the case of Sushila Aggarwal and others Vs. State(NCT of Delhi) and others reported in SLP(Criminal)Nos.7281- 7282/2017.

6. Learned HCGP assisted by Sri.Veeresh Budihal, Advocate argued that the victim is a woman and she was subjected to heinous act against her will without her consent. The petitioner being an influenced person may abscond and may not co-operate for investigation. He has not produced his mobile phone and may not cooperate with investigation. It is also argued by learned HCGP that the offence being serious, admitting the petitioner to anticipatory bail will give a wrong signal to the society and documents produced by both the side clearly indicates that petitioner is not entitled for the relief he has sought in this petition. Sri.Veeresh Budihal, advocate through HCGP has produced certain documents regarding mobile chatting to show that there is a threat to her.

7. From the above material, the point that arises for my consideration is whether petitioner has made out a ground to enlarge him on anticipatory bail

8. On perusing FIR and complaint lodged, it is evident that prior to 1½ years of the alleged incident, complainant/victim and this petitioner are known to each other. According to the complainant, she is running a Nursery School. It is also evident that both of them were chatting through WhatsApp. It is also evident that he is visiting her house. It is also evident that petitioner is aged about 31 years. She is major when the said alleged sexual intercourse took place. The complaint also does not disclose that when she came to know exactly about the petitioner has taken her photos while taking bath and changing dress. It is also evident from her complaint that she went along with the petitioner to Goa, stayed in panaji, Taj View Hotel for two days. Again after 15 days in the month of October, she went along with petitioner to Fidalgo Hotel, Panaji stayed there for two days, where this alleged sexual intercourse took place against her will. Again on 04.11.2021, the said act was repeated. The parents of petitioner also assured her that they will perform her marriage with petitioner. But, she came to know about the prior marriage of petitioner and when she enquired, he refused to marry her. So, this complaint came to be registered on 29.11.2021 against the petitioner and his parents who are arrayed as accused Nos.2 and 3.

9. Learned senior counsel for the petitioner has brought to the notice of this court that the amount was debited from the account of petitioner to the account of respondent on 09.10.2019-Rs.5,000/-, on 11.10.2019 to the tune of Rs.10,000/-. Thereafter also certain amounts were debited continuously on several dates, just to show that from 2019 onwards this victim was receiving money from the petitioner, he has produced bank statement.

10. Learned senior counsel for the petitioner has also brought to the notice of this Court certain WhatsApp chats stated to have taken and he has also produced copies of certain mobile photographs wherein, both this petitioner and respondent exchanged rings and they have also taken photographs in a happy mood. The learned counsel argued that itself shows that there was no forcible sexual intercourse against the will of the victim. If allegations are considered in view of bank statement, wherein money has extracted from petitioner and she stayed only five star hotels along with petitioner, the learned senior counsel stated that now for the reasons best known to victim, she has lodged this complaint and trying to harass this petitioner. The learned counsel stated that why there was suddenly such a turn in the relationship cannot be stated. The learned senior counsel argued that even at the most, entire contention is taken into consideration and even if ultimately the prosecution proved any sexual intercourse, it is not against her will, but it is consensual intercourse. Petitioner does not admit any forcible sexual intercourse.

11. Learned counsel for petitioner relied on decision of the Hon’ble Supreme Court and by this High Court while granting anticipatory bail. In the case of Sushila Aggarwal and others Vs. State (NCT of Delhi) and others reported in (2020) 5 SCC 109, final conclusion of the Court are enumerated, wherein the Hon’ble Supreme Court has overruled the grant of anticipatory bail to impose conditions limiting relief in terms of time, and it reads as under:

“FINAL CONCLUSIONS OF THE COURT”

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92.12 The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra4 and subsequent decisions (including K.L. Verma v. State and Anr.; Sunita Devi v. State of Bihar6 and Anr.; Adri Dharan Das v. State of West Bengal19; Nirmal Jeet Kaur v. State of M.P.7 and Anr; HDFC Bank Limited v. J.J. Mannan8; Satpal Singh v. the State of Punjab9 and Naresh Kumar Yadav v. Ravindra Kumar20 which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled. 93. ….”

12. The learned counsel for petitioner also relied on order of this Court in Crl.P.No.2681/2020 dated 06.07.2020 between Kiran V. Vs. State by Bidadi Police Station, Bangalore, wherein, the learned single judge of Co-ordinate Bench has granted anticipatory bail for the offence punishable under Sections 376 and 417 of IPC, wherein there was a promise to marry and sexual intercourse was committed on victim against her will and later refused to marry her. In that case, petitioner was major and they were in love nearly for 6 to 7 years. Holding that truth or otherwise of the complaint has to be investigated, this Court granted anticipatory bail.

13. Learned senior counsel for petitioner also relied on another order of this Court in Crl.P.No.1793/2021 dated 15.04.2021 between Sathish Vs. State of Karnataka and another, wherein also there was a promise to marry and on that basis developed intimacy and they had sexual intercourse. Subsequently, there was a refusal. There also complainant was major and enjoyed each other company and in that case also complainant after coming to know that he had married other women, she has lodged complaint. In that case, she is educated and Government employee. Relying on decision of Hon’ble Supreme Court in the case of Deepak Gulati Vs. State of Haryana, reported in (2013) 7 SCC 675, [LQ/SC/2013/591] the anticipatory bail was granted.

14. Learned counsel for petitioner also relied on another order of Co-ordinate Bench of this Court in Crl.P.No.3865/2021 dated 16.06.2021 between Shashibhushana K. Vs. The State of Karnataka, represented by Vidhana Soudha Police, Bengaluru, wherein also there was a similar allegation as in this case. Allegation of offences are under Section 354A, 354D, 506, 504, 120B, 376 and 420 of IPC and Section 67A of I.T. Act, wherein similar facts are forthcoming and the pre-arrest bail was granted on conditions.

15. Learned counsel for petitioner also relied on similar type of case decided in Delhi High court, wherein similar set of facts and Gujarath High court wherein similar nature of offences anticipatory bail was granted.

16. Against this, Smt.Girija Hiremath, assisted by Sri.Veeresh Budihal, advocate relied on judgment of this Court regarding grant of anticipatory bail under Section 438 of Cr.P.C. judgment of single bench of this court in W.P.No.62038/2016 dated 23.01.2017 between Sri.Vasunathan Vs. Registrar General, High Court of Karnataka, Bengaluru and others.

17. Learned counsel for the respondent has relied on the judgment of this Court in Crl.P.No.2314/2021 dated 24.06.2021 in the case of Mohammad Shariff Vs. State of Karnataka, in which case there is a threat stating that he will kill the petitioner by injecting synide. He was forcing the victim to give blank cheque, harassing her father often attempted to suicide by consuming poison and admitted to hospital and lodge a false complaint. The facts of that case are different.

18. Leaned counsel for respondent-victim has also placed reliance on decision of Hon’ble Supreme Court in the case of State of Maharashta Vs. Mohd. Sajid Husain, reported in (2008) 1 SCC 213 [LQ/SC/2007/1236] . But, again principle stated in that case are not applicable, as in that case, girl was taken for immoral trafficking by accused who is influence with police staff, politicians and businessman’s. So, under such facts and circumstances, Hon’ble Supreme Court has rejected the bail.

19. Learned counsel for respondent/victim also place reliance on judgment reported in (2011) 1 SCC 694 [LQ/SC/2010/1322] reported in Siddaram Sattlingappa Mhetre V.State of Maharastra, wherein, the Hon’ble Supreme Court has considered the scope and ambit of Section 438 of Cr.P.C. and referred to various judgments of Hon’ble Supreme Court and that para 51 onwards referred to right of life and personal liberty under the constitution by referring to decision of Hon’ble Supreme Court in the case of Gurbaksh Singh Sibbia Vs. State of Punjab, reported in (1980) 2 SCC 565, [LQ/SC/1980/169] wherein bail was granted. They also relied upon the Order passed in WP No.62038/2016 dated 23.01.2017 between Vasunathan Vs. Registrar General. But, that decision is in respect of direction to the Registry not to reflect the petitioner’s name in the cause title of the order. That decision will not help the respondent in any way.

20. On the other hand, the documents, photos, bank statement and other materials placed before court clearly disclose that the petitioner and respondent were in relationship for a long time which is evident from her complaint. Victim is not illiterate or uneducated but she is running a school. It is the contention of the victim that she was subjected to rape on false promise of marriage is very difficult to believe at this stage. They have stayed together in all most all five star hotels only at Goa several times.

21. The complaint is filed on 29.11.2021 by respondent No.2-victim. The account transactions shows that they were residing together for long time. As per complaint averments, 1½ year prior to lodging of this complaint, she is in contact with petitioner. It is allegation of victim that petitioner is threatening her that he will put her necked photos and video in his friends group. By telling so, he had taken her to different five star hotels and committed sexual assault on her several times. It is very difficult to believe, in view of the photos and material placed before the Court. The truth of the complaint requires to be gone into and investigated. The petitioner’s counsel has stated that petitioner is ready to surrender his mobile phone and sim card and co-operate with investigation.

22. In view of the settled principles mentioned in Gurbaksh Singh Sibbia(supra) and Siddaram Sattlingappa Mhetre(supra) regarding grant of pre- anticipatory and looking to the nature of offence and the facts and circumstances of the case, petitioner has made out a ground for grant of anticipatory bail. The apprehension of arrest is well founded. The apprehension of Prosecution that the petitioner may tamper with prosecution witnesses or abscond can be meted out by imposing some stringent conditions.

23. Hence, the following:

ORDER

Petition filed under section 438 of Cr.P.C. is allowed.

Consequently, the petitioner / accused Sri. Santhosh is ordered to be enlarged on anticipatory bail in the event of his arrest in connection with Crime No.137/2021 of APMC Yard Police Station, Belagavi for the offence punishable under Sections 323, 354(C), 376(N), 420, 504 and Section 506 of IPC on he executing a personal bond for a sum of Rs.1,00,000/- (Rupees only lakh only) with one surety for the like sum, on the following conditions.

a) The petitioner shall not try to tamper the prosecution witnesses directly or indirectly.

b) The petitioner shall appear before the concerned S.H.O./Police or Investigating Officer within ten days from the date of receipt of copy of this order and co-operate with the investigation of the case. On completion of interrogation, the petitioner shall be released on bail by the SHO or Investigating Officer of concerned Police station forthwith on the terms and conditions mentioned in this order.

c) The petitioner shall hand over his mobile phone with sim card having phone number as available in record of this case, if required by Investigating Officer and co-operate for investigation and enquiry in this regard.

d) The petitioner shall not involve in commission of offence of such nature now alleged against him.

e) The petitioner shall mark his attendance before the S.H.O of APMC Yard Police Station, Belagavi on every Sunday between 10.00 a.m. to 4.00

p.m. for a period of three months or till filing of charge sheet whichever is earlier.

f) The petitioner shall furnish authenticated documents in proof of his residential address and shall inform the Investigating Officer / Court, if there is any change in the address along with mobile phone number.

g) Petitioner shall appear regularly before the Court whenever directed.