IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23rd DAY OF JANUARY 2019 BEFORE THE HON’BLE Mr. JUSTICE B.A.PATIL CRIMINAL PETITION No.8852 of 2018 Between:
Sri. Harsha Kumar A.S., Aged 38 years, Son of Jayakara, R/at Shanthiru House, No.2-54A, Post Andije, Belthangady – 574 214. …Petitioner (By Sri.P.P.Hegde, Advocate) And:
The State – Through the Police Inspector, Uppinangady Police Station, Mangaluru, D.K. District. (Represented by the State Public Prosecutor, High Court of Karnataka, Bengaluru – 560 001). …Respondent (By Sri.K.P.Yoganna, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Cr.No.272/2018 of Uppinangady P.S., D.K. District for the offence P/U/S 354A of IPC and Sections 8, 12 of POCSO Act.
This petition coming on for orders, this day, the Court made the following:-
ORDER The present petition has been filed by the petitioner-accused under Section 439 of Cr.P.C., to release him on bail in Crime No.272/2018 of Uppinangady Police Station for the offences punishable under Section 354A of IPC and Sections 9, 10 and 12 of the Protection of Children from Sexual Offences (in short ‘POCSO’) Act, 2012.
2. I have heard the learned counsel for the petitioner and the learned High Court Govt. Pleader.
3. Before going to consider the submissions made by the learned counsel appearing for the parties, I deem it just and proper to put forth the facts of the case.
4. It is the case of the prosecution that the victim girl was a student of fifth standard in Sri.Bharathi Vidya Samsthe, Uruvalu, Uppinangady taluk. On 13.09.2018, there was a holiday to the school as there was volleyball tournament on 14.09.2018 and in order to practice volleyball, the accused being the physical education teacher, had informed the students to come to the school on 13.09.2018. As per the submissions of the accused, the victim girl along with one Veekha had gone to the school at 2.00 p.m., in the afternoon. When all the children had gone, at that time, the victim and one Veeksha who could not get the bus, were waiting and they were requested to clean the table in the room. When the victim and Veeksha were cleaning the table, accused asked Veeksha to go to the class and make entries. When the victim was in the room, accused told the victim to hug him and forcibly hugged the victim. Thereafter, he put his hand on her body and his hand inside the skirt and when the victim attempted to shout, accused gagged her mouth tightly and told her not to disclose about the incident and due to fear of dignity, she did not inform anybody. After going home, victim girl informed about the incident to her mother. Mother of the victim, thinking that the accused may continue his illegal activities, decided to lodge a complaint. On the basis of the complaint, case has been filed.
5. It is submitted by the learned counsel for the petitioner that there were some illegalities committed by the Management and the accused-petitioner was resisting the same and the Management wanted to remove him. In order to take a revenge, a false complaint has been lodged through the complainant. He further submitted that though the alleged incident has taken place on 13.09.2018, the complaint came to be lodged on 04.10.2018. There is inordinate delay and the said complaint has been lodged only after debate and discussions with the Management. He further submitted that the offence with which the accused has been chargesheeted is punishable with imprisonment upto three years or seven years. He further submitted that the petitioner has been suspended on 18.09.2018 and subsequently, complaint was got registered. He further submitted that in the statement of the victim and complainant, there are so many contradictions. It is submitted that the object of the bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventive. Deprivation of the liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. In order to substantiate his argument, he relied upon the decision in the case of SANJAY CHANDRA v/s. GENERAL BUREAU OF INVESTIGATION (2012(1) SCC 40). He also submitted that the offences with which the accused is chargesheeted is punishable with imprisonment for a term which may be less than seven years and which may extend upto seven years. Then, under such circumstances, as per Section 41 of IPC, it is mandatory to issue notice to the accused. Thereafter, he has to be apprehended. The said procedure has not been followed in the instant case on hand. In order to substantiate the said aspect, he has also relied upon the decision in the case of ARNESH KUMAR v/s. STATE OF BIHAR AND ANOTHER reported in 2014(8) SCC 273. He further submitted that the petitioner is not a person to abscond and ready to abide by any conditions and ready to offer surety. On this ground, he prayed to allow the petition and to release him on bail.
6. Per contra, learned High Court Govt. Pleader vehemently argued and submitted that the complaint and the statement of victim recorded under Section 164 of Cr.P.C., are corroborated with each other.
Even the delay in filing the complaint has been explained. He also submitted that there is a serious allegation against the petitioner that he has sexually assaulted the school student. It is a serious offence alleged against the victim. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel for the petitioner as well as the learned High Court Govt. Pleader. In so far as the decisions which have been relied upon by the learned counsel for the petitioner are concerned, there is no difference of opinion and the ratio laid down is applicable to the circumstances under which the said facts have been stated. But in the instant case, we have to peruse the records and thereafter, the case has to be considered.
8. On perusal of the material available on record, the alleged incident has taken place on 13.09.2018 and the complaint came to be lodged only on 04.10.2018. As could be seen from the prosecution records, immediately after the alleged incident the victim has gone home along with her classmate Veeksha and in her statement, she has not disclosed anything about the incident. If really the alleged incident had taken place, the victim should have disclosed the same definitely to her friend Veeksha. Be that as it may. There is no serious efforts made immediately after the alleged incident to take any steps to bring it to the notice of the higher officers of the petitioner. Apart from that the records also indicate the fact that there was some resistance made by the parents and the children after the alleged incident. Taking into consideration the fact that the alleged offences are not punishable with death or imprisonment for life and it is the submission of the learned counsel for the petitioner that the management had removed the accused from services and thereafter, complaint is lodged, petitioner can be enlarged on bail. The presence of the accused can be secured for the purpose of trial by imposing conditions.
9. Hence, the Petition is allowed and the petitioner is ordered to be enlarged on bail in Crime No.272/2018 of Uppinangady Police station for the offence punishable under Section 354A of IPC and also Sections 9,10 and 12 of the POCSO Act, subject to following conditions:
i) The petitioner shall execute a personal bond for a sum of Rs.2,00,000/- with two sureties for like sum before the Trial Court:
ii) He shall not tamper with the prosecution evidence in any manner;
iii) He shall not leave the jurisdiction of the Court without prior permission.
bnv* CT:SN Sd/- JUDGE