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. 4975/2019 BETWEEN:
Bhagyamma, W/o Muniraju, Aged about 38 years, R/a. Sulthanpate Village, Nandi Hobli, Chickaballapur Taluk & District, Chickaballapur – 562 101. ... Petitioner (By Sri S.A. Sudhindra, Advocate for Sri S.N. Aswathanarayan, Advocate) AND:
State by Town Police Station, Chickaballapur – 562 101, Represented by Special Public Prosecutor, High Court of Karnataka. … Respondent (By Sri K.P. Yoganna, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C., praying to enlarge the petitioner on bail in Cr. No.53/2019 of Chikkaballapura Town Police Station, Chikkaballapura for the offences p/u/s 366(A), 370, 370 (A), 376 (2) (I) of IPC and 4, 6, 12 of POCSO Act, 2012 and Section 3 (1) (w), 3(2) (v-a) of SC/ST (prevention of Atrocities) Act.
This Criminal Petition coming on for Orders this day, the Court made the following:
ORDER Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent - State. Perused the records.
2. The petitioner is arraigned as accused No.1 in Spl.S.C.No.42/2019 arising out of Crime No.53/2019 for the offences punishable under Sections 366(A), 370, 370(A), 376(2)(I), 34 of IPC and Sections, 4, 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 and Sections 3(1)(w), 3(2)(v-a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. The learned High Court Government Pleader submits that the complainant has been communicated by the police with regard to the filing of this petition and inspite of service of notice, complainant has remained absent.
4. The brief case of the prosecution is that on 27.03.2019, the complainant by name Sri. Nagabhushanachari, who is working as a Superintendent in Sarkari Balakiyara Balamandira, Nagarthpet, Chikkaballapura, has lodged a complaint stating that on 26.03.2019, two victim girls have given a complaint stating that in the night hours, the accused persons joined hands with each other for the purpose of exploiting girls in the said Balamandira by sending them to the house of 2nd accused along with the boys who were intending to have sexual intimacy with those girls and on recording the statement of these witnesses and on enquiry, the complainant came to the conclusion that there is stuff in the said statements. Therefore, he lodged a complaint against the petitioner and another for various offences. The police have registered a case for the said offences and after investigation submitted the charge sheet before the Court.
5. During the course of investigation, the accused No.1 has been arrested and she has been in judicial custody since the date of her arrest, i.e., from 27.03.2019. During the course of investigation, the police have also got recorded the statement of those two girls, particularly, one girl by name Gautami has made allegations against the petitioner stating that by taking Rs.500/- to Rs.600/- from one Ranjan, she used to send those girls along with him for the purpose of sexual intimacy. But, another girl by name Mamata has not implicated in any manner in 164 statement so far as this petitioner is concerned and she has stated that Gautami and Lavanya were without the knowledge of this petitioner and others, used to go along with their lovers in the night hours. This petitioner was not at all giving any pinpricks or acting in any derogatory manner so far as victim girls are concerned.
6. Learned High Court Government Pleader also brought to the notice of this Court the statement of other inmates of the said Balamandira wherein they have only pleaded that they came to know about the above incident from other source and they have not actually seen and heard personally anything about the case on hand.
Therefore, it appears to be an hearsay evidence so far as the present case is concerned.
7. Therefore, looking into the above divergent opinions expressed by these two victim girls before the trial Court while giving statements under Section 164, the same has to be established during the course of full-dressed trial. Learned counsel for the petitioner has brought to the notice this Court the medical examinations of the girls which show that they have crossed 17 years age. Whether they voluntarily went along with other students with the knowledge of the petitioner and really there was exploitation for wrongful gain by this petitioner or not, is also to be established during the course of full-fledged trial. Offences alleged though serious in nature, they are not either punishable with death or imprisonment for life. However added to that, under Section 437 of Cr.P.C., even if the offence is punishable either with death or imprisonment for life, if the accused is a lady or sick or old aged person, under such circumstance, the Court has to exercise its discretion in favour of the accused for the purpose of bail is concerned.
8. Though the allegations are very serious in nature, in view of the above said divergent statements, in my opinion, the petitioner who is in the jail at present and as the charge sheet has already been filed, petitioner is entitled to be enlarged on bail.
petitioner shall be released on bail in connection with Spl.S.C. No.42/2019 (Crime No. 53/2019 of Chickballapura Town Police Station) on the file of the Additional District and Sessions Judge, Chickaballapur, registered for the offences punishable under Sections 366(A), 370, 370(A), 376(2)(I), 34 of IPC and Sections, 4, 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 and Sections 3(1)(w), 3(2)(v-a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, subject to the following conditions:
(i) The petitioner shall execute her personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with Two sureties for the like-sum to the satisfaction of the jurisdictional court.
(ii) The petitioner shall not indulge in tampering the prosecution witnesses.
(iii) The petitioner shall appear before the jurisdictional court on all the future hearing dates unless exempted by the court for any genuine cause.
(iv) The petitioner shall not leave the jurisdiction of the trial Court without prior permission of the court till the case registered against her is disposed of.
Sd/- JUDGE VP