Back
2020 Supreme(Kar) 1098
IN THE HIGH COURT OF KARNATAKA AT BENGALURU (DHARWAD BENCH)
Ashok G Nijagannavar, J.
Bharati - Appellant
Versus
Pundalik - Respondent
Criminal Petition No. 100779 of 2019
Decided On : 08-06-2020
K.S. Patil, Advocate, Sadanand M K, Advocate, Srinivasa B Naik, Advocate, K.L. Patil, Advocate, Seema Shiva Naik, Advocate
The court emphasized that the power to grant bail should not be exercised as if the punishment before the trial is being imposed. The court also highlighted that the bail once granted should not be cancelled unless a cogent case, based on the supervening event, has been made out.
Headnote:
POCSO Act - Anticipatory Bail - Sections 376, 420, 506 of IPC and Section 4, 6 of POCSO Act, 2012 - The court held that the order granting bail was not perverse or unjustified and there was no prima facie material to indicate that the accused had caused threat to the victim. The application for cancellation of bail was rejected as there were no circumstances to warrant the cancellation of bail.
Fact of the Case:
The petitioner/complainant filed a petition to cancel the order granting anticipatory bail to the accused under Sections 376, 420, 506 of IPC and Section 4, 6 of POCSO Act, 2012. The complainant alleged that the accused had caused threat to the victim and violated the bail conditions.
Finding of the Court:
The court found that the order granting bail was not perverse or unjustified. There was no prima facie material to indicate that the accused had caused threat to the victim. The application for cancellation of bail was rejected as there were no circumstances to warrant the cancellation of bail.
Issues: The main issues were whether the order granting bail was justified and whether there were grounds to warrant the cancellation of bail based on the complainant's allegations of threat and violation of bail conditions.
Ratio Decidendi: The court emphasized that unless very cogent and overwhelming circumstances are made out, the bail need not be cancelled mechanically. The court also highlighted that the bail once granted should not be cancelled unless a cogent case, based on the supervening event, has been made out.
Final Decision: The petition for cancellation of bail was dismissed as there were no circumstances to warrant the cancellation of bail. The accused was not found guilty of the misconduct that would warrant depriving him of his personal liberty.
JUDGMENT
Ashok G Nijagannavar, J. - This petition is filed by the complainant-victim under Section 439(2) of Cr.P.C. to cancel the order dated 03.04.2019 in Criminal Miscellaneous No.690 of 2019 passed by the III Additional District and Sessions Judge and Special Court, Under POCSO Act, Belagavi granting bail to accused/respondent No.1 for the offence punishable under Sections 376, 420 and 506 of IPC and Section 4 and 6 POCSO Act, 2012.
2. The facts leading to this petition are that the learned III Additional District and Sessions Judge and Special Court, Under POCSO Act, Belagavi passed an order dated 03.04.2019 granting anticipatory bail to accused/respondent No.1 subject to certain terms and conditions. Being aggrieved by the said order, the petitioner/complainant has filed this petition for cancellation of bail mainly on following grounds :
(1) The prosecution has mislead the Court by stating in the objections that the investigation is completed and charge sheet is filed.
(2) The learned Sessions Judge misconstrued the facts of the case on the reason that the alleged offences are not punishable with death or life imprisonment.
(3) The accused is not required for custodial interrogation.
(4) The accused has violated the bail conditions by making an attempt to cause threat to the life of the complainant/victim.
3. Heard the learned counsel for the complainant/ petitioner and the learned counsel appearing for the respondent No.1-accused and also the learned HCGP for respondent No.2-State.
4. The main grievance of the complainant-victim is that the trial Court has failed to consider the relevant factors while granting the anticipatory bail, thus, it has resulted in miscarriage of justice. The accused has caused threat to the life of victim and the complaint has been registered in this regard. The police have conducted the investigation and have also filed charge sheet, which prima facie goes to show that the anticipatory bail granted to the accused/respondent No.1 needs to be cancelled.
5. Per Contra, the learned counsel for the respondent No.1/accused submitted that according to complainant the alleged incident of rape was committed on 12.11.2017, but the complaint was filed on 19.03.2019. There was inordinate delay of one and half years from the date of incident. The respondent No.1/accused was not in his village on the date of alleged incident but he was on duty. Considering this aspect and other merits of the case the bail was granted. Later a false complaint is filed by the complainant/victim with vindictive motive and harass the accused and also to make a ground for cancellation of bail.
6. The learned HCGP submitted that after granting bail, immediately the prosecution had filed an application for cancellation of bail, there was no connivance as alleged by the complainant/victim. Even though investigation was not completed and charge sheet was not filed as stated in the objection ; the learned Sessions Judge has rightly considered that investigation is under progress as such there is no question of misleading the Court.
7. It is well established principle that unless very cogent and overwhelming circumstances are made out, the bail need not be cancelled mechanically. In a catena of decisions of the Hon'ble Supreme Court it has been held that the power to grant bail is not to be exercised as if the punishment before the trial is being imposed. The only material considerations in such a situation are whether the accused will be readily available for that on that he is likely to abuse the discretion granted in his favour by tampering with evidence, if there is no primafacie case, there is no question of considering the other circumstances. In some cases, even where a prima facie case is made out the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment.
8. The Hon'ble Supreme Court in the case of Myakala Dharmarajam v. State of Telangana, (2020) 2 SCC 743 by adverting to
