IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.3073 OF 2018 BETWEEN:
THE STATE OF KARNATAKA, THROUGH HANUR POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 560 001. …PETITIONER (BY SMT.NAMITHA MAHESH.B.G., HCGP) AND:
MAHENDRA, S/O BALLAIAH, HOUSE NO.609, S.C.BEEDI, 3RD BLOCK, SHAGAYA, KOLLEGALA TALUK, CHAMARAJANAGAR DISTRICT – 571 440 … RESPONDENT (BY SRI B.LOHIT, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439(2) OF CR.P.C BY THE STATE PRAYING TO CANCEL THE BAIL ORDER DATED 18.12.2017 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGAR IN CRIME NO.236/2017 OF HANUR POLICE STATION FOR THE OFFENCE PUNISHABLE UNDER SECTION 376 OF IPC AND UNDER SECTIONS 3 AND 4 OF PROTECTIONS OF CHILDREN FROM SEXUAL OFFENCES ACT AND DIRECT THE RESPONDENT ACCUSED BE ARRESTED AND COMMITTED TO CUSTODY.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The present petition has been filed by the State under Section 439(2) of Cr.P.C. to cancel the bail granted by the Principal District and Sessions Judge, Chamarajanagara in Crime No.236 of 2017 of Hanur Police Station for the offence punishable under Section 376 of the Indian Penal Code and Sections 3 and 4 of Protection of Children from Sexual Offences Act, 2012.
2. The jist of the case is that the victim is the third child of the complainant and on 04.10.2017, the complainant along with the victim had been to her maternal home to attend some pooja. When the victim went out of the house at about 2.00 p.m., to attend nature call, along with her cousin by name Pooja, the accused followed her and committed sexual assault on her. By seeing the same, the said Pooja informed the said fact to the complainant and other members of the family and on the basis of the said information, a complaint has been registered by the complainant.
3. It is the submission of the learned HCGP that the offence which has been committed is a grave offence and there are ample materials as against the accused. The Trial Court, without considering the heinousness of the offence and without looking into the material placed on record and without application of mind has released the respondent/accused on bail which is not sustainable in law. It is further contended that there is every likelihood of he being tampering with the prosecution witnesses and he may threaten the complainant and victim. She further submitted that the medical certificate supports the case of the prosecution to show that the victim has been sexually assaulted by the accused. It is further submitted that the respondent being an influential person may influence the witnesses. On these grounds, she prayed to allow the petition and cancel the bail.
4. Per contra, learned counsel for the respondent/ accused submitted that the accused and the victim are close friends and they were in love with each other. The respondent/accused is studying B.A.Degree in Maharaja College of Mysuru and he has to attend the examinations and as such, an application for interim bail was filed and on the basis of the documents and other materials, the respondent/ accused has been released on bail on 23.11.2017 and thereafter on 18.12.2017 in this behalf. He further submitted that the act of the accused is a consensual act as the victim is aged 17 years and they were in love with each other. He further submitted that after release of the accused on bail, there is no allegation that he has violated any of the conditions imposed by the Court below and he has tampered with the prosecution evidence. He further submitted that the Trial Court after exercising the discretion has released the accused on bail. Only because of the fact that the offence with which the accused has been charged is heinous and grave, the petition cannot be allowed and the bail cannot be cancelled. On these grounds, he prayed for dismissal of the petition.
5. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. On close reading of the said record, the Court below though released the accused on interim bail and thereafter on regular bail on 18.12.2017, it is not a reasoned order. That therein it shows that the Trial Court has not applied its mind to the facts of the case while deciding whether the respondent/accused is entitled to be released on bail or not? In that light, the said order is cryptic and it is not a reasoned order. The only contention that has been taken up by the learned HCGHP is that the offence which has been leveled against the respondent is grave in nature and as such, that the bail has to be cancelled. It is not the gravity of the offence which has to be taken into consideration while considering the bail application or for cancellation of the bail application. The material facts if proved, prima-facie materials and one of the ground is gravity of the offence that has to be looked into. In that light, instead of canceling the bail and directing the Trial Court to re-consider the application, if the merits of the case are looked into that the victim is aged about 17 year and even it is not in dispute that they were in love with each other and in that light, if the entire matter is looked into, then, under such circumstances, though the medical certificate and other records supports that there is sexual assault committed on the victim, but it appears to be a consensual one as there is no resistance for the same. The complaint itself goes to show that before committing the sexual assault, he has spread a towel and thereafter, he made the victim to lay down on the towel and thereafter, committed sexual assault on her. Be that as it may. The Trail Court, after taking into consideration the fact that the respondent/accused is appearing for the examination has released the accused on interim bail and thereafter he has been released on regular bail. It is not the specific case of the State that he has violated the terms and conditions which has been imposed in this behalf. Looking from any angle, that though the order passed by the Court below is without there being any just reasons, but on re-consideration of the facts and circumstances, I am of the considered opinion that the State has not made out any good grounds to cancel the bail. Hence, the petition stands disposed of with the following conditions:-
i) The Trial Court is directed to release the respondent/accused on bail by executing a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the like-sum to the satisfaction of the Trial Court.
ii) The petitioner shall appear before the trial Court on all dates of hearing.
iii) He shall not tamper with the prosecution witnesses in any manner.
iv) He shall mark his attendance once in fifteen days till the trial is concluded except on the dates when the examination is there before the jurisdictional police and shall not leave the jurisdiction of the trial Court without prior permission.
v) He shall not indulge in similar type of criminal activities.
Sd/- JUDGE dh