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.5296 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, Bangalore, Pin-560 103.
Permanently residing at Kallur Grama & Post, Kadaba Hobli, Gubbi Taluk, Tumakuru District. …Petitioner (By Shri. Chandramouli H.S., Adv. for Shri. Rajanna Adv.) AND:
The State by Marathahalli Police Station, Marathahalli, Bangalore, Represented by State Public Prosecutor, High Court of Karnataka, Bangalore-560 001. .. Respondent (By Shri. B.T. Venkatesh, Spl. P.P.) This Criminal Petition is filed under Section 439 of the Cr.P.C., praying to enlarge the petitioner on bail in Crime No.17/2017 (Spl.C.C.No.214/2017) of Marathahalli P.S., Bangalore for the offence P/U/S 377 of IPC and Sec.4, 6, 8, 10, 12 of POCSO Act.
This petition coming on for orders this day, the court made the following;
ORDER This petition is filed by the petitioner/accused under Section 439 of the Cr.P.C., seeking his release on bail for the offences punishable under Sections.4, 6,8, 10 and 12 of POCSO Act and Section 377 and 188 of the IPC in Crime No.17/2017 registered by the respondent-police.
2. Heard the learned counsel for the petitioner/accused and also the learned Special Public Prosecutor appearing for the respondent – State.
3. The brief facts of the prosecution case are that the victim boy aged about 2 years and 8 months studying in Kidzee Pre-School, Kariyamana Agrahara, Bengaluru, complained that accused No.1 working in the said school as supervisor had used his finger in his private part and committed sexual assault on him. On the basis of the said complaint, a case came to be registered and after completing investigation, charge sheet is filed against the accused for the said offences.
4. Learned counsel for the petitioner submitted that looking to the material itself, there is no prima facie case made against the present petitioner. He also submitted that there is no compliance of Section 35(1) of the POCSO Act, as the statement of the victim boy was not recorded. As per the provision of Section 35(1), from the date of taking cognizance within one month the statement of the victim is to be recorded. Inspite of issuance of summons to the witnesses on number of occasions, they were not brought before the court. He produced the document dated 30.12.2014 issued by the Office of the Commissioner of Police, Bengaluru City, wherein it is stated there are no adverse remarks in HAL Police Station records, so far as this petitioner is concerned. He submitted that petitioner is in judicial custody for a long period of 8 months and is innocent of the offence. It is further submitted that petitioner has not committed the alleged offence and is ready to abide by any conditions which may be imposed by the court and hence petitioner may be enlarged on bail.
5. Per contra, learned Special Public Prosecutor submitted that looking to the complaint averments, so also the medical records, there is a prima facie case against the present petitioner. He submitted that there may not be injuries as opined by the doctor, but the victim boy has complained pain in the anal area. Hence, he submitted that there is a prima facie material to show the involvement of the petitioner in committing the alleged offence. It is also submitted that similar type of allegations are made against this petitioner in other cases. Hence, the petitioner is not entitled to be granted bail.
6. I have perused the grounds urged in the FIR and other materials on record. As per the complaint averments, the allegation is that the present petitioner put the finger in the anal area. Subsequently the statement of the boy came to be recorded before the SJPU under Section 164 of the IPC, copy of which is produced by the learned counsel for the petitioner. I have perused the said statement recorded on 18.3.2017. On oath the boy has stated that he has seen Manju Bhayya in Kidzee School. He is a bad boy and Manju Bhayya did not touch him and he did not hurt him. So looking to the statement of the boy recorded before SJPU, prima facie, goes to show that the present petitioner has not done anything to the said boy. The doctor who examined the boy has not mentioned any injury in the anal area of the said boy. No evidence of fissure, contusion/wound in the perennial area. There is no evidence of Trauma in any other parts of the body. Therefore, even looking to the medical records also, there is nothing in the medical certificate about any injuries in the anal area or other parts of the body.
7. In view of the above, I am of the opinion that it is a fit case to exercise the discretion in favour of the petitioner.
8. Petition is allowed. Petitioner is enlarged on bail, subject to the following conditions;
i) Petitioner shall execute a personal bond for Rs.50,000/- with one surety for the likesum to the satisfaction of the concerned court.
ii) He shall not tamper with the prosecution witnesses directly or indirectly.
iii) He shall appear before the concerned court regularly.
Sd/- JUDGE Msu