IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV CRIMINAL PETITION No.5980/2019 BETWEEN:
Sri Prabhu S/o Rajaiah, Aged about 25 years, R/at Kalyanapura Village, Halebeedu Hobli, Belur Taluk, Hassan District – 34. … Petitioner (By Sri Pratheep K.C., Advocate) AND:
The State of Karnataka, Rep. by Halebeedu Police Station, Hassan District, Rep. by its State Public Prosecutor, High Court of Karnataka, Bangalore – 560 001. ... Respondent (By Sri K. Nageshwarappa, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C., praying to enlarge the petitioner on bail in Cr. No.226/2018 (Spl. C. No.553/2018) of Halebeedu P.S., Hassan District pending on the file of Additional Sessions Judge, Hassan for the offences p/u/s 506, 376, 323 and 363 of IPC and Sections 4 and 6 of POCSO Act.
This Criminal Petition coming on for Orders this day, the Court made the following:
O R D E R The petitioner, who is the sole accused in the proceedings instituted in the Special Case No.553/2018 for the offence under Sections 363, 114, 323, 376, 506 of IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the Act’ for short) and is in custody is seeking to be enlarged on bail pursuant to his arrest in the aforesaid proceedings.
2. The case of the prosecution is that the father of the victim has lodged a complaint stating that the accused had taken his daughter forcibly in his autorickshaw. It is further stated that the victim was taken on 26.06.2018 after SSLC re-examination to various places and was brought back on 27.06.2018. It is submitted that in the intervening time, the petitioner is alleged to have committed offence enumerated above and further threatened the victim not to reveal regarding the incident. Pursuant to the complaint, FIR was lodged and investigation is complete and charge-sheet has been filed on 27.07.2018. It is noted that the petitioner has been in custody since 13.07.2018 till date.
3. Counsel for the petitioner points out that the complaint was lodged after considerable delay only on 12.07.2018 though the alleged offence is said to have been committed between 26.06.2018 and 27.06.2018. It is further submitted that charge-sheet has been filed on 27.07.2018 and despite the lapse of one year, trial has not commenced.
4. Counsel for the petitioner also submits that there has been consent for the physical relationship between the petitioner and the victim. It is to be noted that the petitioner has been in custody for more than one year. Though charge-sheet has been filed on 27.07.2018, the trial has not commenced. Section 35 (2) of the Act requires that the trial be concluded within a period of one year. The commission of offence is a matter to be made out in trial. Despite the contention of counsel for the prosecution that there is a presumption, it is to be noted that the primary facts relating to the commission of the offence has to be proved during the trial.
5. Taking note that there has been undue delay in commencement of trial and also peculiar facts of the case, without laying down the principle that the accused are entitled to be enlarged on bail on mere delay as contemplated under Section 35 (2) of the Act, case is made out for enlargement of the petitioner on bail. It is to be noted that the proceedings relating to the consideration of bail cannot be construed to be punitive in nature. Matter of proving the offence is to be demonstrated during the trial. Sessions Court has dismissed the application merely by taking note of possibility of tampering of the witnesses. Insofar as aspect relating to the tampering of witnesses, said apprehension can be addressed by imposing necessary conditions.
6. In the light of the above, the bail petition filed under Section 439 of Cr.P.C. is allowed and petitioner is enlarged on bail in S.C. No.553/2018 with respect to the offences under Sections 363, 114, 323, 376, 506 of IPC and Sections 4 and 6 of POCSO Act, 2012, subject to the following conditions:
(i) The petitioner shall execute a personal bond of `1,00,000/- (Rupees One Lakh only) with one surety for the like sum to the satisfaction of the concerned Court.
(ii) The petitioner shall fully co-operate with the expeditious disposal of the trial (iii) The petitioner shall not tamper with evidence, influence in any way any witness.
(iv) In the event of change of address, the petitioner to inform the same to the concerned SHO.
(v) The petitioner shall not enter Kalyanapura Village, Halebeedu Hobli, Belur Taluk, Hassan District till completion of the trial.
(vi) Any violation of the aforementioned conditions by the petitioner, shall result in cancellation of bail.
Any observation made herein shall not be taken as an expression of opinion on the merits of the case.
Accordingly, petition is disposed of.
Sd/- JUDGE MBM