IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL Criminal Revision Petition No.933/2019 BETWEEN:
Shri. William Anoop Nicodemus S/o late Daniel Raj Mohan Nicodemus Aged about 42 years R/at No.G1104, Tower-3, Daffodils Block, Adarsh Palm Retreat, Devarbisanahalli, Bellandur, Bengaluru-560 103.
...Petitioner (By Smt. Rattihalli Geetha Veeranna, Advocate) AND:
The State of Karnataka by Marathahalli Police Station, Bengaluru, Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
...Respondent (By Sri M.Divakar Maddur, HCGP) This Criminal Revision Petition is filed under Section 439 r/w 401 of Cr.P.C praying to set aside the order dated 09.07.2019 passed by the LIV Additional City Civil and Sessions Judge, Bengaluru in Spl.C.C.No.416/2019 in so for discharging the petitioner/accused for the offences punishable under Sections 8 and 12 of POCSO Act and etc.
This Criminal Revision Petition coming on for Admission this day, the Court made the following:
O R D E R This petition has been filed by the petitioner/accused challenging the order passed by the LIV Additional City Civil and Sessions Judge, Bangalore City (CCH-55) sitting at Child Friendly Court dated 09.07.2019.
2. I have heard the learned counsel for the petitioner/accused and the learned High Court Government Pleader for respondent – State.
3. The gist of the case as per the charge sheet is that the complainant is a minor boy. He was studying in JEE. During the year 2014, in order to study, he came to Bangalore and accused promised his mother and himself to help him. As the mother of the complainant used to go for work, during night hours accused used to consume alcohol and used to ill-treat physically and used to abuse in filthy language. Once he has taken to Goa and there also, he sexually assaulted him. It is further stated that the accused used to touch his private parts and used to assault and also insisted to play with him otherwise, he is going to ill-treat him. Whenever he used to refuse, he used to threaten and assault the complainant/victim. It is the further case of the complainant that the alleged incident has taken place in between 2014 to 2016 however, he was mentally depressed and subsequnetnly in 2017 he took treatment. As such, he belatedly filed the complaint. On the basis of the complaint, the investigation has been completed and charge sheet has been filed at that time, an application came to be filed by the accused for discharge under Section 227 of Cr.P.C.
4. It is the submission of the learned counsel for the petitioner that the mother of the complainant was a divorcee and her husband is also no more. The complainant came from Kolkata and started studying in Bangalore along with his mother. Subsequently, the accused and the mother of the complainant became close and the accused used to help them and also, they started living in the same house. Subsequently, there was difference of opinion between them in that light, she filed a case of dowry harassment and the same was challenged before this Court. This Court by order dated 26.02.2019 in Crl.P. No.2112/2016 has quashed the proceedings. Subsequently, the accused filed a case for eviction and recovery of the possession of the premises in which the mother of the complainant and the complainant were residing, Because of that, a false case has been registered under the POCSO Act. It is her further submission that the petitioner/accused is working in Naval Department and he used to come often to Bangalore. It is her further submission that as on the date, the complainant was aged about 17 years 11 months and he has attained the age of majority. In that light, the provisions of POCSO Act are not attracted. It is her further submission that even though there is no material to connect the accused, a false case has been registered. It is her further submission that the complainant is not residing in India and it is very difficult for the accused to secure him to examine before the Court, Therefore, there is a delay in trial. On these grounds, she prayed to allow the petition and to set aside the impugned order and discharge the accused.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the charge sheet material clearly goes to show that there is prima facie material as against the accused. The Investigating Officer after proper investigation has filed a charge sheet. The complaint itself clearly goes to show that the accused used to take the victim to Goa, used to consume Alcohol and harass the victim both physically and mentally and also used to sexually assault him by touching his private parts and other parts of the body. There is sufficient material to connect the accused to the alleged crime. The trial Court after considering the materials placed on record has rightly dismissed the application. On these grounds, he prayed to dismiss the application.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
7. Before going to consider the materials placed on records, in catena of decisions of the Hon’ble Apex Court, it has been laid down that while considering the application for discharge, the Court is having undoubted power to sift and weigh the evidence for a limited purpose to finding out as to whether there is a prima facie case made out as against the accused or not? The test to determine a prima facie case would naturally depend upon the facts of each case and no straight jacket formula or universal law can be made in this behalf. This proposition of law has been laid down by the Hon’ble Apex Court in the case of UNION OF INDIA Vs. PRAFULLA KUMAR SAMAL AND ANOTHER reported in (1979) 3 SCC 4 at paragraph No.10 it has been observed as under:
“Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
8. On going through the said decision, it discloses that the accused is entitled to discharge if there is only suspicion and if there is a grave suspicion against the accused, under such circumstance, the Court will be justified in framing the charge.
9. Keeping in view the ratio laid down in the above decision, on perusal of the materials and the complaint, it clearly goes to show that the petitioner/accused has touched the private parts of the victim boy and also assaulted thereby, he has sexually assaulted. The said definition of the Section in the POCSO Act is also attracts. Even though it is contended by the learned counsel for the petitioner that the complainant is not a child within the meaning of the said Act however, he is below the age of 18 years as on the date of the alleged incident, under such circumstance, the provisions of the POCSO Act are attracted in that light also, the contention taken up in this behalf is not acceptable.
10. Looking from any angle, I am of the considered opinion that the petitioner/accused has not made out a case so as to interfere with the order of the trial Court. The order of the trial Court deserves to be confirmed.
11. The revision petition is devoid of merits, the same is liable to be dismissed and accordingly, it is dismissed.
The trial Court is directed to expedite the trial as the accused is working in Naval Department. Further it is directed the trial Court that the presence of accused may be insisted only as and when, his presence is required.
No order as to cost.
VBS Sd/- JUDGE