IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION No.9520/2018 BETWEEN:
Smt. B.Gowri D/o late Nagaraj Aged about 29 years R/o No.114, 4th Cross, B.G.Road, Shanavi Palya Bengaluru-560 076.
Presently working at Lifting Hand Foundation 4th Cross, Govindapura, A.C.Post, Kauveri Nagar, Bengaluru-560 045.
(By Sri M.N.Nehru, Advocate & Sri Hemachandra R. Rai, Advocate) AND:
State of Karnataka by Kadugondanahalli Police Station Bengaluru-560 045 Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
(By Smt. Namitha Mahesh B.G., HCGP; ) …Petitioner …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.367/2018 (Spl.C.C.No.742/2018) of Kadugondanahalli Police Station, Bengaluru, for the offences punishable under Sections 376(A)(B), 377, 323 and 506 of IPC and Section 4 of POCSO Act.
This Criminal Petition coming on for Orders this day, the Court made the following:-
O R D E R This petition has been filed by the petitioner/ accused No.2 under Section 439 of Cr.P.C. to release her on bail in Crime No.367/2018 (Special C.C.No.742/2018) of Kadugondana Halli Police Station for the offences punishable under Sections 506, 376(A), 376(B), 377, 323 of Indian Penal Code and also under Section 4 of the Protection of Children from Sexual Offences Act (hereinafter referred to as the ‘POCSO Act’ for short).
2. I have heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
Though notice has been served to the complainant through police, she has remained unrepresented.
3. The gist of the complaint is that the daughter of the complainant got admitted to Foundation Trust of accused No.1. During holidays victim came to her house and she was very much depressed and she found some irregularities in her health condition. On enquiry the victim stated about the act of the petitioner/accused sexually assaulting her. It is further alleged in the complaint that when her daughter was staying in the Foundation School accused No.1 used to commit forcible sexual intercourse with her and as a result of the same, there was vaginal bleeding and victim when screamed having frightened about the incident, accused No.1 used to threatened her and used to tell that nothing is going to happen, in turn, called accused No.2, who is working as helper under accused No1 in the said institution asked her to take away the victim and directed accused No.2 to give diaper to the victim and she also used to threatened the victim girl. On the basis of the complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioner/accused No.2 that she is innocent and she has not committed any offence and no specific overt acts have been alleged as against the petitioner/accused. He further submitted that there is delay in filing the complaint and already charge sheet has been filed. Petitioner/accused has surrendered voluntarily before the police and she is in custody and she is not required for the purpose of further investigation or interrogation. The charge sheet material also discloses the fact that when accused No.1 asked to provide the diaper, at that time accused No.2 has given the diaper. Except that, no other allegations are there. It is accused No1 who has sexually assaulted the victim. He is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioner on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the statement of the victim has been recorded under Section 164 of Cr.P.C., therein she has specifically stated that accused No.2 knowing and seeing the vaginal bleeding, not made any effort on the spot to inform the victim’s mother and even as per Section 17 of the POCSO Act, whoever assist or obeys the commission of such offence, is also liable to be convicted. She further submitted that accused has assisted and threatened the victim in order to facilitate accused No.1 to commit sexual assault. She further submitted that the petitioner/accused if she is released on bail, it is going to give a wrong signal in the Society. On these grounds, she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. As could be seen from the contents of the complaint accused No.1 is the Chairman of the Foundation Trust who actually sexually assaulted the victim girl. The only allegation as against accused No.2 petitioner herein is that she was working as a helper under accused No.1 and when she was so working accused No.1 asked her to take the victim away and directed to give the diaper to the victim girl. It is the contention of the learned High Court Government Pleader that she has not informed the said fact either to the mother or to the police as contemplated under Section 17 of the POCSO Act. That is the matter which has to be considered and appreciated only at the time of trial. Over all factual situation if it is looked into, there are no serious allegations made as against petitioner/accused No.2. Be that as it may, even accused No.2 is a lady, under Section 437 of Cr.P.C. she is entitled to be released on bail that too when already charge sheet has been filed.
8. Taking into consideration the above said facts and circumstance the petition is allowed and the petitioner/accused No.2 is ordered to be released on bail in Crime No.367/2018 of Kadugondana Halli Police Station, for the offences punishable under Sections 506, 376(A), 376(B), 377, 323 of Indian Penal Code and also under Section 4 of the POCSO Act, subject to the following conditions:
i) The petitioner shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.
ii) She shall not tamper with the prosecution evidence directly or indirectly.
iii) She shall mark her attendance in the jurisdictional police on 1st of every month in between 10.00 A.M. and 5.00 P.M. till the trial is concluded.
iv) She shall not leave the jurisdiction of the Court without prior permission.
v) She shall not indulge in similar type of criminal activities.
Sd/- JUDGE *AP/-