The main legal point established in the judgment is that the entitlement to bail should be considered in light of the specific allegations and the duration of custody, and that the court has the discretion to grant bail with appropriate conditions.

JUDGMENT

H.P. Sandesh, J. - Heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for the respondent-State.

2. Crl.P.No.7399/2021 is filed by accused No.10 and Crl.P.No.7936/2021 is filed by accused No.11 invoking Section 439 of Cr.P.C seeking regular bail in Crime No.175/2021 of Ramamurthy Nagar Police Station, Banaswadi Sub-Division, Bengaluru City for the offence puni.shable under Sections 120-B, 201, 204, 323, 324, 343, 366, 366(B), 370, 370(a)(2), 376(D), 376, 384, 504 and 506 read with Section 149 of IPC, Section 67(a) of I.T. act, Section 14 of Foreigners act and Sections 4, 5 and 9 of I.T.P. act.

3. The factual matrix of the case is that the other accused persons and the petitioners herein indulged in committing the act of subjecting the women for sexual act, uploading the same in Whatsapp, causing life threat and also indulged in the act of trafficking the women from Bangladesh.

4. Learned counsel appearing for the petitioner-accused No.10 in Crl.P.No.7399/2021 would submit that the statement of the victim girl was recorded under Section 164 of Cr.P.C. and nowhere, she has stated that these petitioners were present and only reference is made that other two unknown persons were present and not specifically pointed out the very act of subjecting her for sexual act against these petitioners. The counsel would also submit that this petitioner only received the Whatsapp from one Sagar and except that, no material is collected by the prosecution to keep him in custody.

5. Learned counsel appearing for the petitioner-accused No.11 in Crl.P.No.7936/2021 would submit that the only allegation against this petitioner is that she indulged in prostitution and leading her life and except the said allegation, no other material is collected and hence, Section 376 of IPC does not attract against this petitioner. He would also submit that this Court has already granted bail in respect of accused No.12 in Crl.P.No.7748/2021 vide order dated 14.01.2022 and on the ground of parity, this petitioner is also entitled for bail.

6. Per contra, learned High Court Government Pleader appearing for the respondent-State would submit that, in the 164 statement of the victim girl, she has referred the name of these petitioners that they were present, but she has not specifically mentioned the name of these petitioners that they subjected her for sexual act, took nude photographs and uploaded the same. He would also submit that, in the statement of victim girl, she has also mentioned that two unknown persons were also present and allegations are made against other accused persons.

7. Having heard the respective counsel and also on perusal of the material available on record, particularly, 164 statement of the victim girl, it is seen that the victim girl was subjected to sexual act against her will and confined her in a house. But, nowhere, she has mentioned the name of the accused No.10, who is the petitioner in Crl.P.No.7399.2021. However, an allegation is made that, two months prior to the alleged incident, when she was taken, at that time, the petitioner-accused No.10 was present and no specific allegations are made against the petitioner-accused No.10 that he indulged in sexual act and only mobile was seized. It is also the contention of the learned counsel for the petitioners that these petitioners received the Whatsapp communication from one Sagar and it only attracts the offence under I.T. act and the matter requires to be tested in trial regarding involvement of these petitioners in a heinous offence under Section 376 of IPC.

8. When such being the factual aspects of the case and these petitioners are in custody from the last 8 months and taking note of the fact that name of the petitioner-accused No.10 is not mentioned in 164 statement of the victim girl subjecting her for sexual act by petitioner-accused No.10, hence, he is entitled for bail and also the fact that this Court has already granted bail in