IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV CRIMINAL PETITION No.4472/2019 BETWEEN:
Sri Subhash, S/o Nagesh Acharya, Aged about 22 years, R/at Buklapura, Thirthahalli, Thirthahalli Taluk, Shivamogga District – 34. ... Petitioner (By Sri. Pratheep K.C., Advocate) AND:
The State of Karnataka, Rep. by Hariharapura Police Station, Chikkamagalur District, Rep. by its State Public Prosecutor, High Court of Karnataka, Bangalore – 560 001. ... Respondent (By Sri K.P. Yoganna, HCGP) This Criminal Petition is filed under Section 439 of the Code of Criminal Procedure, praying to enlarge the petitioner on bail in Cr.No.36/2018 registered by Hariharapura Police Station, Chikkamagaluru for the offences p/u/s 448, 376(2) (n), 504, 506 and 323 of IPC and Section 5(L) and 6 of POCSO Act.
This Criminal Petition coming on for Orders, this day, the Court made the following:
ORDER The petitioner is seeking to be enlarged on bail in connection with his detention pursuant to the proceedings in Spl.C.(PCSOA) No.33/2018 with respect to offences punishable under Sections 448, 376 (2) (n), 504, 506 and 323 of IPC and Sections 5(1) and 6 of the POCSO Act.
2. The case of the prosecution is that a complaint was filed by the victim on 24.04.2018 stating that the petitioner after holding out promise to marry her and expressing that he was in love with her, had forcible sexual intercourse with her by threatening her when she was alone in the house on 23.03.2018. It is stated that subsequently he is said to have committed rape on her for about 4 – 5 times. On the basis of said incident, complaint was lodged, FIR registered, investigation is complete and charge sheet has been filed. It is stated that the petitioner is in custody since 25.04.2018.
3. The learned counsel for petitioner states that a perusal of the complaint would reveal that the petitioner and the victim were known to each other. It is stated that the question as to whether the offence is made out as alleged and whether the petitioner had forcible sexual intercourse with the victim is a matter to be proved during trial. It is further stated that the present proceedings cannot be treated as being punitive in nature.
4. The learned HCGP further states that presumption under the Act has to be invoked in the light of Section 5 (l) of the POCSO Act. It is to be noted that even for the purpose of presumption, primary facts relating to commission of offence have to be proved.
Present proceedings cannot be treated to be punitive in nature. Prima-facie reading of the complaint would show that petitioner and the victim were known to each other and that the question as to commission of offence is a matter to be proved during trial.
5. Taking note of the fact that petitioner is in custody since 25.04.2018 and also taking note that trial has not commenced despite the requirement under Section 35 of the POCSO Act, the case is made for enlarging the petitioner on bail subject to conditions.
6. In the result, the bail petition filed by the petitioner under Sec. 439 of Cr.P.C. is allowed and the petitioner is enlarged on bail in Spl.C.(PCSOA) No.33/2018 with respect to offences punishable under Sections 448, 376 (2) (n), 504, 506 and 323 of IPC and Sections 5 (l) and 6 of the POCSO Act, 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 likesum to the satisfaction of the concerned Court.
(ii) The petitioner shall fully co-operate for 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 Melinakuruvalli village, Thirthahalli Taluk, Shimoga 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.
Np/-
Sd/- JUDGE