IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE BUDIHAL R.B. CRIMINAL PETITION NO. 5298 OF 2017 BETWEEN Manjunath @ Manju, Son of Veerabhadrappa, Aged about 31 years, Residing at No.49, Care of Kidzee School, Near Matri Espera Apartments, Bellandur Post, Bengaluru-560 103.
Permanently residing at Kallur Grama and Post, Kadaba Hobli, Gubbi Taluk, Tumakuru District. ... Petitioner (By Sri.Chandramoule H.S, Advocate for Sri.Rajanna R., Advocate) AND The State by Marathahalli Police Station, Marathahalli, Bengaluru (By Sri B.T.Venkatesh, Spl.P.P) ... Respondent This Crl.P filed u/s.439 Cr.P.C praying to enlarge the petitioner on bail in Cr.No.16/2017 (Spl.C.C.No.213/2017) of Marathahalli Police Station, Bengaluru for the offence P/U/S 354 of IPC and Sections 8, 10, 12 of POCSO Act.
This petition coming on for Orders this day, the court made the following:
ORDER This is a petition filed by petitioner-accused No.1 under Section 439 of Cr.P.C seeking his release on bail for the alleged offence punishable under Sections 8, 10 and 12 of POCSO Act and Section 354 of IPC registered by the respondent police in Cr.No.16/2017.
2. Brief facts of the case of the prosecution as per complaint averments are that the victim girl child aged about 3 years 10 months was studying in Kidzee School in Kariyammana Agrahara. The victim girl came told that accused No.1 working in the said school as Supervisor, touches the body of the victim from his hand and tried to commit sexual assault on her which was due to negligence on the part of the school authorities. On the basis of said complaint, FIR came to be registered for the said offences. After investigation, chargesheet also came to be filed.
3. Heard the arguments of the learned counsel for the petitioner-accused No.1 and the learned Special Public Prosecutor for the respondent state.
4. Learned counsel for the petitioner submits that the complaint averments and other prosecution material collected during the course of investigation goes to show that there is no prima-facie case made out by the prosecution against the petitioner. He also submits that the petitioner is in custody since the date of his arrest and there is no progress in the case. Hence, by imposing reasonable conditions petitioner may be enlarged on bail.
5. Per contra, learned Special Public Prosecutor submits that the statement of the victim girl who is aged only about 3 years 10 months has been recorded before the JMFC Court under Section 164 of Cr.P.C. In her statement, she has clearly stated about the act done by the petitioner. Hence, he submits that there is consistency in the case of the prosecution and the statement of the victim girl. As per medical evidence there may not be any injury as opined by the doctor but in this case, submission of the Spl.P.P is that the victim girl was not examined immediately when the alleged incident took place and there is a time gap. However, the Court has to see prima-facie materials placed by the prosecution, while considering the case of the petitioner.
6. I have perused the grounds urged in the bail petition, FIR, chargesheet material and other materials produced in the case. Perused the complaint and also the statement of the victim girl aged about 3 years 10 months. Looking to the statement of the victim girl wherein it is stated that she was in the bath room when Manju baiya touched her bingo bingo (The child when asked to show where is her bingo bingo, she has shown her private part vagina portion) She has clearly stated in her statement that first he touched her back and later touched thigh. There were two other persons working in the school also present. Later all shouted at manju baiya. Manju baiya is in her school. Herself, Aahana and another girl were there.
7. Looking to the statement of the victim girl recorded before the Magistrate court, there is consistency in the statement of the victim girl with the allegations made in the complaint. Therefore, looking to these material at this stage, there is a prima-facie case as against the petitioner for committing the alleged offence. It is no doubt true so far medical records are concerned that there may be no injury as opined by the Doctor, but in this connection, learned SPL.P.P submits that the examination of the victim girl is not immediately after the alleged incident said is to have taken place and because of the lapse of time, may not be such injuries are found on the body of the victim. Therefore, only on this ground at this stage, other materials of the prosecution cannot be rejected by this Court. In view all these materials, I am of the opinion that it is not a fit case to exercise discretion in favour of the petitioner. Accordingly, petition is hereby rejected.
8. However, the observation made by this Court in the body of the above order while rejecting the bail petition is only for the purpose of disposal of this petition.
9. Learned counsel for the petitioner submits that from the date of arrest, the petitioner is in custody and there is no progress in the trial of the case. In view of the said submission, learned Special Judge dealing with the matter is hereby directed to take up the matter on day-to-day basis, complete the trial and dispose of the case within the time provided under Section 35(2) of the POCSO Act. In case it is not completed, the petitioner is at liberty to move the concerned court seeking his release on bail.
Intimate the concerned court accordingly.
Sd/- JUDGE dn/-