IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO. 4533 OF 2019 BETWEEN:
SRI SRINIVAS IYER SON OF LATE G NAGARAJ IYER AGED ABOUT 65 YEARS RESIDING AT 424 SRI RANGA NILAYA HAROHALLI TOWN AND HOBLI KANAKPURA TALUK-562112 RAMANAGARA DISTRICT.
... PETITIONER (BY SRI ARVIND KAMATH, SENIOR COUNSEL FOR SRI PRASHANT POPAT, ADVOCATE) AND 1. STATE OF KARNATAKA BY HAROHALLI POLICE STATION KANAKAPURA TALUK RAMANAGARA DISTRICT REP BY S.P. P.
HIGH COURT BUILDING BANGALORE – 560 001.
2. SMT. JYOTHI T T AGED ABOUT 25 YEARS R/AT THAMASANDRA VILLAGE HAROHALLI HOBLI KANAKAPURA TALUK RAMANAGARA KARNATAKA.
... RESPONDENTS (BY SRI K. P. YOGANNA, HCGP FOR RESPONDENT/STATE) THIS CRL.P IS FILED U/S.438 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HIS ARREST IN CR. NO. 88/2019 OF HAROHALLI P. S, RAMANAGARA FOR THE OFFENCE P/U/S 354A OF IPC AND SEC. 3(1)(w)(i)(ii) OF SC/ST (POA) AMENDMENT ACT, 2015.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for the petitioner and learned HCGP. Learned HCGP submits that though notice to respondent – complainant has been served by the police, but she remained absent. No representation.
2. The complainant has lodged a complaint that she belong to Adi Karnataka caste and she has been working as Head Mistress in Udayonmukha Vidyaniketan School and it is alleged that the President of the Administrative Committee of the said institution by name Srinivas Iyer who is the petitioner herein has been ill-treating her with a sexual insight. In this context, it is alleged that on 17.09.2018 at about 3.00 p.m. he touched her body inspite of her reluctance and she said that she will inform the same to the management / committee. Inspite of that he continued the same for two or three occasions and she did not lodge any complaint but informed the same to one Kashinath and Kantharaju who are members of the managing committee and they told that they will take appropriate action. Even in the year 2019, the same thing happened to her. Then she disclosed the same to her husband and in turn her husband questioned the petitioner. Then the petitioner threatened with dire consequences etc. On these allegations on 29.5.2019 a complaint came to be lodged and the police have registered a case in Crime No. 88/2019 for the offence punishable under Section 354A of IPC and Section 3(1)(w)(i)(ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015.
3. Section 3(1)(w)(i)(ii) of the SC & ST (Prevention of Atrocities) Amendment Act, 2015 reads as follows:
“3(1)(w)(i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient’s consent;
(ii) uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe.
Explanation- For the purpose of sub-clause(i), the expression “consent” means an unequivocal voluntary agreement when the person by words, gestures, or any form of non-verbal communication, communicates willingness to participate in the specific act:
Provided that a woman belonging to a Scheduled Caste or a Scheduled Tribe who does not offer physical resistance to any act of a sexual nature is not by reason only of that fact, is to be regarded as consenting to the sexual activity:
Provided further that a woman’s sexual history, including with the offender shall not imply consent or mitigate the offence:”.
4. On meticulous reading of the said provision, there should be an intentional touch of the woman and such act of touching is of a sexual nature and is without recipient’s consent and uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or Scheduled Tribe. Therefore, these two provisions postulates that there should be an intentional touch without the consent of the lady. For a period of one year these things have been happening and therefore, during the course of the evidence only the same has to be ascertained whether there was a real consent or absolutely no consent for the said act with the said lady. Moreover, there is no specific allegation that he used to touch her body with a sexual intention to insight her for any sexual activity etc. Under the above said circumstances, attraction of the above provisions itself is doubtful at this particular stage. More than that, learned counsel for the petitioner also submits that on 22.05.2019 the Management has issued a show cause notice to the said lady with regard to mis-appropriation of some funds in the school and thereafter, it appears that the present complaint is said to have been lodged against the petitioner. This also, in my opinion, has to be thrashed whether the complaint is filed as a counter blast against the petitioner. Under the above said circumstances, considering the nature of allegations and the facts of the case, as the attraction of the said provisions is doubtful, the petitioner is entitled for bail. Hence, the following:
ORDER The petition is allowed. Consequently, the petitioner shall be released on bail in the event of his arrest in connection with Crime No.88/2019 of Harohalli Police Station, for the offence punishable under Section 354A of IPC and Section 3(1)(w)(i)(ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, subject to the following conditions:-
i) The petitioner shall surrender himself before the Investigating Officer within Ten days from the date of receipt of a certified copy of this order and he shall execute a personal bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with one surety for the like- sum to the satisfaction of the concerned Investigating Officer.
ii) The petitioner shall not indulge in hampering the investigation or tampering the prosecution witnesses.
iii) The petitioner shall co-operate with the Investigating Officer to complete the investigation, and he shall appear before the Investigating Officer as and when called for.
iv) The petitioner shall mark his attendance once in 15 days ie, on every Sunday between 10.00 am and 5.00 pm., before the Investigating Officer for a period of two months or till filing of final report, whichever is earlier.
DKB Sd/- JUDGE