IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL R.B. CRIMINAL PETITION No.2813/2017 BETWEEN:
STATE OF KARNATAKA BY VITTALA POLICE STATION, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 01.
(BY SHRI. CHETAN DESAI, HCGP) AND:
1. BABLU KUMAR, S/O RAJ KUMAR SINGH, AGED ABOUT 28 YEARS, PERMANENTLY R/AT VISHNUPURA TOWN VILLAGE-VISHNUPURA, ANCHAL-BIHTA, PATNA DISTRICT – 801 103.
2. MUNNA SINGH @ MUNNA KUMAR, S/O AVADESH SINGH, AGED 43 YEARS, PERMANENTLY R/AT NO. 117, BHALUNI, BHALUNI TOWN VILLAGE, ANCHAL AGIYOV, BHOJAPUR DISTRICT – 802 203.
... PETITIONER BOTH ARE TEMPORARILY R/AT C/O KAREEM SAHEB, KAMBALA BETTU HOUSE, VITTALA MUDNOOR VILLAGE, BANTWAL TALUK – 579211.
...RESPONDENTS (BY SHRI B.M. LOKESH, APPOINTED AS AMICUS CURIAE TO REPRESENT R1 & R2) THIS CRL.P. IS FILED UNDER SECTION 439 (2) CR.P.C BY THE SPP FOR THE PETITONER, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 29.02.2016 PASSED IN CRL.MISC. NO. 83/2016 BY THE IV ADDL. DIST. AND SESSIONS JUDGE, D.K., MANGALURU IN CR.NO. 218/2015 OF VITLA POLICE STATION, FOR THE OFFENCES P/U/S/ 448, 341, 323, 376(G) AND 506 R/W 34 OF IPC AND CANCEL THE BAIL GRANTED TO THE RESPONDENTS/ACCUSED BY ALLOWING THIS CRL.P. AND DIRECT THAT THE RESPONDENTS/ACCUSED BE COMMITTED TO JUDICIAL CUSTODY.
THIS CRL.P. COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition is filed by the State of Karnataka, Under Section 439 (2) of the Code of Criminal Procedure, seeking cancellation of bail granted to the respondents-Accused Nos. 1 & 2, by setting aside the order dated 29.02.2016 passed in Crl. Misc. No. 83/2016, on the file of the VI Additional District and Sessions Court, Dakshina Kannada, Mangaluru in Crime No. 218/2015 of Vitla Police Station.
2. The brief facts of the case are that:
On 04.11.2015 at about 9.00 p.m, the complainant had gone to bed routinely after her daily work. At about 11 p.m, her husband frequently went to toilet due to stomach pain, petitioners have trespassed the room of the complainant wherein the accused No.2 caught hold her mouth, petitioner No.1 lifted her dress and committed forcible sexual intercourse on her and later, petitioner No.1 hold her neck, then the petitioner No.2 started to commit forcible sexual intercourse on her. Further, after forcible sexual intercourse, petitioner No.1 assaulted on her cheek and petitioner No.2 caught hold of her leg. When her husband arrived to the spot and tried to assault, both the petitioners escaped from the spot. As the incident had occurred during night at 12.00, she did not go to the hospital and on the next day, she had been to Vitla Government hospital for treatment and later she had been shifted to Government Lady Goshan hospital, Mangaluru for further treatment and thereafter she lodged complaint before the Vitla police station wherein a case came to be registered in Crime No.218/2015 for the offence punishable under Sections- 448, 341, 323, 376 (G), 506 read with Section-34 of the Indian Penal Code. After investigation, Vitla police have laid charge sheet against the accused person for the aforementioned offences.
3. The respondents-accused Nos. 1 & 2 applied for bail before the VI Additional District and Sessions Judge, Dakshina Kannada Mangaluru in Crl.Misc. No.83/2016 which was opposed by the prosecution by filing detailed statement of objections. Ultimately, by the impugned order dated 29.02.2016, the learned Sessions Judge has allowed the application and released the respondents-accused Nos. 1 & 2 on bail. Being aggrieved by the same, the State is before this Court, seeking cancellation of bail granted to the accused Nos. 1 & 2.
4. Heard Shri. Chetan Desai, learned High Court Government Pleader appearing for the petitioner-State and Shri. B.M. Lokesh, learned Amicus Curia appearing for the respondent-Accused Nos. 1 & 2 and perused the impugned order. As the respondents-accused Nos. 1 & 2 remained absent, despite service of notice, Shri. Lokesh.B.M Advocate is appointed as Amicus Curiae to assist the Court.
5. Learned HCGP., submits that looking to the complaint averments, the respondents-accused Nos. 1 & 2 have trespassed to the house of the complainant/victim during night hours and both of them committed forcible sexual intercourse on the complainant one after another and that the victim also sustained injuries in that process, at the hands of the accused Nos. 1 & 2. While passing the impugned order, granting bail to the accused, the learned Sessions Judge has not at all considered the nature and gravity of the offence alleged against the petitioner and only on the sole ground that the investigation is completed, the Sessions Judge erred in granting bail to the accused. Further, he submits that as, the accused petitioners are from other State, there is every likelihood of they fleeing away from the clutches of the justice. The learned Sessions Judge has failed to consider that the charge sheet material clearly discloses that there is a prima facie case made out against the accused and hence, the impugned order passed by the learned Sessions Judge is without application of mind and hence, he prays for setting aside the impugned order and to cancel the bail granted to the accused.
6. Per contra, Shri. B.M. Lokesh, learned Amicus Curiae appearing for the respondents- accused Nos. 1 & 2 submit that since the accused have not at all violated any of the conditions imposed by the Court below, there were no grounds to set aside the impugned order. Further, he contends that the charge sheet materials were considered by the learned Sessions Judge, while passing the impugned order and hence, there is no merit in the present petition and prays for dismissal of the petition.
7. I have perused the arguments addressed by the respective counsel and also the impugned Order passed by the learned Sessions Judge and entire charge sheet material, including the complaint averments.
8. On careful perusal of the impugned order it is seen that that in page-7 of the impugned order, the learned Sessions Judge has observed that ‘no doubt the complaint averments shows the allegations made against the petitioners are heinous in nature’. The learned Sessions Judge, while passing the impugned order has not at all considered what are the points to be taken into consideration while granting bail to the petitioner. The learned Sessions Judge has failed to consider the nature/gravity of the offence alleged against the accused, the chance of the accused persons tampering the prosecution witnesses, fleeing away from the clutches of the justice and he has made the filing of the charge sheet as the sole basis for granting bail in favour of the accused. As such, this Court is of the considered view that the impugned order passed by learned Sessions Judge is without considering the prosecution material and without application of mind and without considering the nature and gravity of the charges leveled against the accused. The petitioner-
State has made out a case for interference with the impugned order.
9. Hence, the petition filed by the petitioner- State is hereby allowed. The impugned order dated 29.02.2016 passed by the VI Additional District and Sessions Judge, Dakshina Kannada, Mangaluru in Crl.Mis. No.83/2016 is hereby set aside. The Court below is directed to secure the presence of the respondents-accused Nos. 1 & 2 into the custody and then proceed further with the matter, in accordance with law.
10. The Registry is directed to communicate the copy of the order to the concerned Court forthwith.
11. While placing on record the assistance rendered by Shri. B.M. Lokesh, learned Amicus Curiae appearing for the respondents 1 & 2, the Registry is directed to pay a sum of Rs.3,000/-
(Rupees three thousand only) to him towards honorarium.
Sd/- JUDGE VR