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.5978 OF 2019 BETWEEN:
Sri. Sharath S/o Shivegowda, Aged about 25 years, R/at Adihalli Village, Gandasi Hobli, Arasikere Taluk, Hassan District – 34. …Petitioner (By Sri. Pratheep K.C., Advocate) AND:
The State of Karnataka Rep. by Gandasi Police Station, Hassan District Rep. by its State Public Prosecutor, High Court of Karnataka, Bengaluru – 01. ...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.188/2218 of Gandasi Police Station, Hassan for the offence punishable under Sections 376, 313, 420, 506 of IPC r/w Section 34 of IPC and Section 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 Special Case No.505/2018 with respect to the offences under Sections 376, 313, 420, 506 of IPC r/w 34 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the Act’ for short), is seeking to be enlarged on bail, pursuant to his arrest in the aforesaid proceedings.
2. The case that is made out by the prosecution is that complaint has been filed by the mother of the victim and had stated that the victim was studying in Ninth Standard and used to commute to school from home in the vehicle of the accused, who had an Autorickshaw. It is further submitted in the complaint itself that accused is stated to have promised to marry the victim and had taken the victim to his house and is alleged to have committed the offence of rape. It is further alleged that victim was forced to undergo termination of pregnancy at the instance of the accused and accordingly, complaint had been filed.
3. Learned counsel for the petitioner submits that petitioner and the victim were known to each other and the said fact comes out in the statement recorded under Section 164 of Cr.P.C. wherein, the victim admitted that she was in love with the petitioner. Counsel for the petitioner submits that investigation is complete and charge-sheet has been filed on 01.07.2018. He submits that the petitioner is in custody from 21.05.2018. Counsel for the petitioner further submits that despite lapse of more than a year after filing of the charge-sheet, the trial neither has been commenced nor has been completed within a period of one year as provided under Section 35(2) of the POCSO Act, 2012.
4. Counsel appearing on behalf of prosecution submitted that the offence is grievous in nature and that there is possibility of the accused threatening the victim and the witnesses.
5. Heard the learned counsel appearing for both the sides.
6. It is to be noted that the present proceedings cannot be treated to be punitive in nature. The commission of offence is a matter to be proved during trial. In the peculiar facts of the case, the familiarity between the petitioner and the victim comes out from the mouth of the victim in her statement recorded under Section 164 of Cr.P.C. Despite the fact that consent may not be of relevance taking note of the age of the victim, however, for the present noting that the investigation is complete and also noting that the petitioner has been in custody from 21.05.2018 and that trial has not yet commenced, despite of the statutory mandate under Section 35 of the Act which mandates trial to be completed within a period of one year, in the peculiar facts, petitioner is entitled to be enlarged on bail imposing appropriate conditions. Though the Sessions Court rejected the application for bail on 22.09.2018, till date the trial is not yet commenced. However, it is made clear that mere delay in completion of trial as contemplated under Section 35 of the Act cannot result in granting bail in all cases. Accordingly, bail petition filed under Section 439 of Cr.P.C. is allowed and petitioner is enlarged on bail in S.C. No.505/2018 with respect to the offences under Sections 376, 313, 420, 506 of IPC r/w 34 of IPC and Section 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 Adihalli Village, Gandasi Hobli, Arasikere 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