IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.6651/2018 BETWEEN:
SHARI CHARMANA @ CHEDANDA .J. CHARMANA @ @ SARI CHARMANA, S/O LATE JOYAPPA (JAYAPPA), AGED ABOUT 49 YEARS, RESIDING AT KAREKADU, HOSURU VILLAGE, AMMATHI HOBLI, VIRAJPET TALUK, KODAGU DISTRICT.
PIN CODE-571 201. ... PETITIONER (BY SRI.MAHADEVA R.K, ADVOCATE) AND:
1. THE STATE OF KARNATAKA, THE STATION HOUSE OFFICER, SIDDAPURA POLICE STATION, MADIKERI TOWN CIRCLE, KODAGU DISTRICT, PIN CODE-571 201.
REP BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING COMPLEX, BENGALURU-560 001.
2. KUM SAROJA, D/O BELLI @ RAJU, AGED ABOUT 14 YEARS, RESIDING AT KAREKADU, HOSURU VILLAGE, AMMATHI HOBLI, VIJRAPET TALUK, KODAGU DISTRICT, PIN CODE-571 201.
SINCE MINOR, SHE IS REP. BY HER NATURAL GUARDIAN HER FATHER SRI. PANI ERAVARA BELLI, S/O LATE SUBBA, AGED ABOUT 45 YEARS, RESIDING AT C/O SULLIMALA, SAMPATH LINE HOUSE, NIDUGAMBA VILLAGE, KANOOR POST, VIRAJPET TALUK, PIN CODE-571 201. ... RESPONDENTS (BY SRI.M. DIVAKAR MADDUR, HCGP FOR R1; R2 SERVED, BUT NOT REPRESENTED) THIS CRIMINAL PETITION IS FILED U/S.438 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HIS ARREST IN CR.NO.68/2017 (SPL.C.NO.127/2018) OF SIDDAPURA P.S., KODAGU DISTRICT FOR THE OFFENCE P/U/S 376(2)(i) R/W 34 OF IPC AND SEC.5(g)(L),6 OF POCSO ACT AND SEC.3(2)(Va)OF SC/ST (POA) 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 petitioner/accused No.1 under Section 438 of Code of Criminal Procedure, to release him on anticipatory bail in Crime No.68/2017 (Spl.Case No.127/2018) of Siddapura Police station, for the offences punishable under Section 376 (2) (i) read with Section 34 of IPC and also under Sections 5 (g) and (l) read with Section 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as “Act” and also under Sections 3 (2) (v-a) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. I have heard the learned counsel for the petitioner and the learned HCGP for the respondent- State.
3. The gist of the complaint is that between 27.02.2015 to 27.04.2017, in the line house situated in the estate belonging to Accused No.1 therein and standing in the name of his mother Bollavva situated at Karekadu, Hosur Village, coming within the limits of Siddapura Police Station, CW.2 and CW.3 were residing. During the said period, Accused No.1 knowing fully well that she belongs to Scheduled Caste and Scheduled Tribe, along with Accused Nos.2 & 3 came and had a forcible sexual intercourse with CW.2, who was a minor and on several occasions, the said act was continued and based upon the said complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioner/accused No.1 that Accused Nos.2 & 3 has been tried separately and they have been acquitted from the charges leveled against them. He further submitted that there is no medical evidence to show that the minor victim has been sexually assaulted. The minor victim came to be examined before the Court as PW.1 and in her evidence, she has clearly stated that her statement was recorded under Section 164 of Cr.P.C, that the Judge had enquired with her and obtained the LTM and at that time, she has told that she was taught by the police and accordingly she has stated and that no other evidence has been deposed in her evidence. He further submitted by relying upon the FSL Report which states that there are no recent signs to evident the recent sexual act. The alleged offence is under Section 376 of IPC and under the said facts and circumstances, the petitioner/accused No.1 is entitled to be released on bail. He further submitted that the case has been split up and only a warrant has been issued, no proclamation has been issued as against the petitioner/accused No.1. In spite of that Trial Court by relying upon the decision in the case of State of Madhya Pradesh Vs. Pradeep Sharma, reported in (2014) 2 SCC 171 has come to the conclusion that the petitioner/accused is a proclaimed offender and the bail petition was came to be dismissed. Further, he submitted that he is ready to face the trial and ready to abide by the conditions imposed by this court, if he is released on bail and on this ground, he prays for allowing the petition.
5. Per contra, the learned HCGP vehemently argued and submitted that accused along with Accused Nos.2 & 3 have sexually assaulted CW.2 who was a minor at the time of alleged incident. He further submitted that the petitioner/accused is absconding and the Trial Court has issued Non-bailable warrant and thereafter, proclamation has also been issued and the petitioner/accused No.1 is proclaimed offender and as such, he is not entitled to be released on anticipatory bail under Section 438 of Cr.P.C, in view of the decision of the Apex Court quoted supra. He further submitted that the petitioner/accused No.1 has not made out any good grounds to release him on anticipatory bail and prayed for dismissal of the Petition.
6. I have carefully and cautiously gone through the submission of the learned counsel appearing for the parties and perused the records.
7. As could be seen from the records, it appears that the accused No.3 was tried before the II Addl. District and Sessions Judge, Kodagu, Madikeri city at Virajpet and in Spl. Case No.116/2017, accused No.3 was tried and by judgment dated 21.01.2019, the said accused has been acquitted. Even the evidence which has been made available had disclosed the fact that the minor victim has also not supported the case of the prosecution and even there is an observation by the court that there is no medical evidence to connect the accused and even the FSL report also clearly goes to show that there is no recent sexual assault as per the report. The court below has issued Non-bailable warrant and case has been split up as against the petitioner/accused No.1. Nowhere the records disclose the fact that the petitioner/accused No.1 has been declared as proclaimed offender.
8. The above said decision in the case of State of Madhya Pradesh quoted supra, it applies only when, if the accused has been considered to be a proclaimed offender, then the court cannot release him on anticipatory bail. The said situation is not existing and as such, the ratio laid down in the above said decision is not applicable.
9. Under the said facts and circumstances, I feel that if on imposing some stringent conditions, if the petitioner/accused No.1 is ordered to be released on anticipatory bail, it is going to meet the ends of justice.
10. The Petition is allowed and petitioner/accused No.1 is ordered to be released on anticipatory bail in the event of his arrest in Crime No.68/2017 (Spl. Case No.127/2018), subject to the following conditions:-
1. Accused/petitioner shall execute a personal bond for a sum of Rs.2,00,000/-(Rupees Two lakhs only) with two sureties for the like sum to the satisfaction of the trial Court.
2. He shall surrender before the Trial Court within 15 days from today and he shall be regular in attending the trial till the trial is concluded.
3. If he jumps the bail, then Trial Court is at liberty to cancel the bail and take him to custody.
4. He shall not tamper the prosecution evidence in any manner directly or indirectly and shall not indulge in similar type of criminal activities.
5. He shall not leave the jurisdiction of the Court without prior permission.
SD/- JUDGE cbc