IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL REVISION PETITION NO.869 OF 2015 BETWEEN:
1. RAJAGOPAL ADI, S/O. MAHADAVA ADI, AGED ABOUT 35 YEARS, R/A. RATHA BEEDHI, GOKHARANA, KUMATA TALUK, UTTARA KANNADA DISTRICT-581 326.
2. SHESHANANDA VISHWESHWARA ADI, S/O. VISHWESHWARA ADHI, AGED ABOUT 42 YEARS, R/A. NEAR GANGA VISHWESHWARA TEMPLE, NEELEGULI, GOKHARANA, KUMATA TALUK, UTTARA KANNADA DISTRICT-581 326.
3. GOPAL GAYATHRI, S/O. SADASHIVA GAYATHRI ONI, AGED ABOUT 44 YEARS, R/A. NEAR INDANE GAS GODOWN, BEHIND RAILWAY STATION, VIDHYA NAGAR, GOKHARANA, KUMATA TALUK, UTTARA KANNADA DISTRICT-581 326. ... PETITIONERS [BY SMT. PADMAVATHI N., ADVOCATE] AND:
STATE BY MADIKERI RURAL POLICE-571 201.
REP. BY PUBLIC PROSECUTOR OF HIGH COURT OF KARNATAKA, BANGALORE-560 001. ... RESPONDENT [BY SRI. HONNAPPA, HCGP.] * * * THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI IN SPL. CASE NO.44/2014 U/S 227 OF CR.P.C. DATED 05.08.2015 AND DISCHARGE THE PETTIONERS IN THE ABOVE CASE.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER The present revision petition is filed by accused Nos.2 to 4 in Special Case No.44/2014 on the file of the Court of District and Sessions Judge, Kodagu, Madikeri, wherein the learned Sessions Judge rejected the application filed by the petitioners under Section 227 of Cr.P.C. seeking their discharge for the offence punishable under Section 212 of IPC.
2. I have heard the learned counsel appearing for the petitioners and the learned HCGP appearing for the respondent/State.
3. The brief facts of the prosecution case are that;
Accused No.1 by name M.C.Chandan alias Rohan was a Founder Trustee of the Children Resource Centre viz., ‘Vathsalaya’ which was being run in a building situated at Abyathmanagala village, which was providing free accommodation of food, lodging and education for orphan children. The victim girl, a minor, studying in II PUC was staying in the said centre along with other children. On 29.06.2013, accused No.1 by inducing the victim girl and by promising that he will marry her, took her inside the said centre, confined in a room and committed forcible sexual intercourse. Again on 31.07.2013, during night hours, he committed forcible sexual intercourse with her two times against her will and also committed criminal intimidation by threatening her with dire consequences and threatened her not to disclose the incident to any other person. It is the further case of the prosecution that accused No.1 after committing the offence, absconded and the petitioners/accused Nos.2 to 4 herein gave shelter to accused No.1 and harboured him knowing well that he had committed the above offences, with an intention of screening him from legal punishment and thereby the petitioners/accused Nos.2 to 4 committed an offence punishable under Section 212 of IPC.
4. The trial proceeded against accused No.1 and in so far as the petitioners herein, the case was split up and Special Case No.44/2014 was registered. Subsequently, the petitioners/accused Nos.2 to 4 appeared before the trial Court and the Court below enlarged them on bail on 12.01.2015. The petitioners herein filed Crl.P. No.7554/2014 before this Court, seeking quashing of the proceedings and this Court vide Order dated 28.11.2014 permitted them to withdraw the said petition reserving liberty to approach the Court below and seek appropriate orders. Accordingly, the petitioners filed an application under Section 227 of Cr.P.C., before the Court below seeking their discharge from the case. The prosecution filed its objection and sought to reject the said application.
5. The learned Sessions Judge by an Order dated 05.08.2015 dismissed the said application filed by the petitioners under Section 227 of Cr.P.C. Aggrieved by the same, the petitioners are before this Court.
6. The learned counsel appearing for the petitioners would contend that the petitioners are innocent and they have not committed any offence much less the one now alleged against them. It is contended that the trial against accused No.1 proceeded in Spl. Case [POCSO] No.23/2014 and he has been acquitted of all the charges. It is further contended that the only witnesses on whose statement the prosecution wants to rely upon are P.Ws.14 and 15. However, their statements do not disclose that these petitioners have harboured accused No.1 with an intention of screening him from legal punishment. The learned counsel submits that even according to P.Ws.14 and 15, they have seen the petitioners along with accused No.1 in Gokarna, however, accused No.1 came to be arrested in Bengaluru in connection with Crime No.47/2014 of Girinagar Police Station. It is contended that there is no prima facie case made out against these petitioners and therefore, the learned counsel seeks to allow the petition and to discharge the petitioners.
Per contra, the learned HCGP vehemently contended that these petitioners have given shelter to accused No.1 and knowing fully well that accused No.1 has committed a heinous offence, they have harboured him with an intention to screen him from legal punishment. He submits that the trial Court has rightly rejected the application filed under Section 227 of Cr.P.C. and accordingly seeks to dismiss the revision petition.
7. The case of the prosecution is that accused No.1 committed forcible sexual intercourse with a minor girl on 29.06.2013 and 31.07.2013 by confining her in a Children’s Resource Centre viz., ‘Vathsalaya’, wherein he was a Founder Trustee and thereby he committed offences punishable under Sections 342, 376(2)(f) and (n), 506 of IPC and under Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 [hereinafter referred to as ‘the POCSO Act’ for brevity]. The allegation against the present petitioners/accused Nos.2 to 4 is that they harboured accused No.1, who committed the aforesaid offence, with an intention to screen him from legal punishment.
8. The prosecution wants to rely on the statements of C.Ws.14 and 15. The perusal of the statements of the said witnesses would disclose that accused No.1 along with another by name Mallikarjuna Patil were seen with these petitioners and when P.Ws.14 and 15 asked these petitioners, they supposed to have informed them that in connection with some case, the Police are searching for the said persons and therefore, they have given protection. It is relevant to see that the said witnesses have not stated as to when they saw these petitioners with accused No.1. A careful perusal of the statements of C.Ws.14 and 15 would disclose that it is the petitioners themselves informed the said witnesses and the said witnesses have no knowledge about the fact that these petitioners were intentionally trying to give shelter or trying to protect accused No.1 so as to screen him from legal punishment. It is relevant to see that even according to C.Ws.14 and 15, they have seen accused No.1 in the company of these petitioners at Gokarna, however, it is not the case of the prosecution that accused No.1 was arrested from Gokarna. Accused No.1 was also not arrested when he was with the petitioners/accused Nos.2 to 4.
9. It is relevant to see that accused No.1 was tried in the main case, wherein the charges were framed against him for the offences punishable under Sections 342, 376(2)(f)(n), 506 of IPC and under Sections 4 and 6 of the POCSO Act. The said accused No.1 has been acquitted of the main charges by the learned Special Judge in Spl. Case [POCSO] No.23/2014. It has been held that there is no incriminating evidence/material against accused No.1. The learned counsel appearing for the petitioners has produced the certified copy of the said Judgment dated 02.05.2015 passed in Spl. Case [POCSO] No.23/2014. When the prosecution has failed to establish the main charges leveled against accused No.1 and when he has been held not guilty, the proceedings against the present petitioners against whom the charges are that they harboured accused No.1 with an intention to screen him from legal punishment, cannot be sustained. The material on record are not sufficient to proceed against the petitioners.
Accordingly, I pass the following:
ORDER The revision petition is allowed. The Order passed in Special Case No.44/2014 dated 05.08.2015 is hereby set aside. The application filed by the petitioners/accused Nos.2 to 4 under Section 227 of Cr.P.C. is hereby allowed and they are discharged of the offence punishable under Section 212 of Cr.P.C.
Sd/- JUDGE Ksm*