Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Kar) 34

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
Smt. Swapna W/o Late Ravi Kumar – Appellant
Versus
The State of Karnataka Kadaba Police, Puttur D.K.District Represented By State Public Prosecutor High Court Buildings Benglauru and Ors – Respondent
Criminal Petition No.6696 of 2020
Decided On : 29-01-2021

Advocates:
Advocate Appeared:
For the Appellant :Sri. Ajay Prabhu M., Advocate for Sri. Sachin B.S., Advocate
For the Respondent:Smt. Namitha Mahesh B.G., Hcgp Sri. K.A. Karumbaiah, Advocate

Point of Law: Sexual offence – Cancellation of bail - Prima facie and reasonable ground that the accused had committed the offence as a balance of the consideration involved, the continued custody of the accused sub serves the purpose of the criminal justice

Headnote:
Indian Penal Code,1860 - Sections 354A, 509, 504, 506, 448, 307 & 326A - Criminal Procedure Code,1973 - Section 482 and 439 – Offence of Attempt to murder - Sexual harassment – Criminal intimidation – House trespass – Cancellation of Bail - Complainant, who is sister-in-law of accused had given statement in hospital that, when complainant and her daughter are in house, this petitioner came in connection with repayment of loan borrowed by her deceased husband from PCARD Bank - In this regard, he used to come to house of complainant and disturb her and her daughter and he used to knock door of the house - Petitioner trespassed into house of complainant; by removing his knicker, he misbehaved and sexually harassed her in grudge of non-payment of loan installment and in connection with cutting of sprinkler pipe of garden of accused - When complainant was in her house with her two years old daughter abused complainant in a filthy language and asked her to sell her children and follow him and while complainant was recording video - Whether learned District Judge while passing order exercised his discretion and legal sustainability of order –
Finding of the Court:
complaint clearly discloses with regard to utterances made by accused and also making an attempt to sexually harass complainant and it appears when the complainant did not budge to desire of accused, he threw same on face and all over body of complainant and in that indulging act, child is also suffered burn injuries on account of throwing of acid - Accused went with acid - Accused not only threw acid on complainant and as a result of same daughter along with complainant also suffered burn injuries - Having considered materials on record, discretion exercised by trial Judge is erroneous and legally not sustainable - Trial Judge lost sight of gravity of offence - It would make order absolutely perverse and totally indefensible as held by Apex Court in NEERU YADAV’s case (supra) - On perusal of entire material particularly, wound certificates of complainant, her daughter and also accused, there is a prima facie and reasonable ground that accused had committed offence as a balance of consideration involved –
Result: Petition is allowed

ORDER

1. This petition is filed under Section 482 of Cr.P.C, praying this Court to set aside the order dated 08.10.2020 in Crl.Misc.No.5172/2020 on the file of V Additional District and Sessions Judge, D.K., Mangaluru, sitting at Puttur, D.K., and direct respondent No.1-Police to arrest respondent No.2 and commit him to the custody.

2. The factual matrix of the case is that the complainant, who is the sister-in-law of the accused had given the statement in the hospital that, when the complainant and her daughter are in the house, this petitioner came in connection with repayment of loan borrowed by her deceased husband from PCARD Bank, Kadaba. In this regard, he used to come to the house of the complainant and disturb her and her daughter and he used to knock the door of the house. This petitioner trespassed into the house of the complainant; by removing his knicker, he misbehaved and sexually harassed her in the grudge of non-payment of the loan installment and in connection with the cutting of sprinkler pipe of the garden of the accused. On 23.01.2020 at about 4:00 p.m, when the complainant was in her house with her two years old daughter-Sameeksha, abused the complainant in a filthy language and asked her to sell her children and follow him and while complainant was recording the video, he threw the golden touch formic acid through the window to the face and chest of complainant. As a result, the complainant and her daughter suffered burn injuries. Based on this complaint, a case has been registered in Crime No.6/2020 for the offences punishable under Sections 354A, 509, 504, 506, 448, 307 & 326A of IPC. Respondent No.2 has filed the bail petition under Section 439 of Cr.P.C, and the learned District Judge granted bail in favour of respondent No.2 vide order 8.10.2020. Hence, the present petition is filed for cancellation of bail.

3. The main contention of the learned counsel appearing for the petitioner-complainant is that the learned District Judge while exercising the powers under Section 439 of Cr.P.C, failed to take note of the gravity of the offences and also it is a case of throwing the acid and as a result the complainant sustained the burn injuries and the daughter also sustained the injuries. The District Judge while exercising the discretion also not assigned the reason only stating that he is the resident of Kodimbala and there is no chances of fleeing away from justice and fleeing away from justice is also very less. It is also observed in the order that prior to the institution of the present case, the relationship was strained between the parties. The very reasoning given by the Court is erroneous.

4. The learned counsel in support of his arguments, he relied upon the Judgment of the Apex Court in the case of MAHIPAL v. RAJESH KUMAR @ POLIA AND ANOTHER (Criminal Appeal No.1843/2019), in this judgment, the Apex Court in paragraph No.12 held that, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straight jacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system.

5. The learned counsel also relied upon the Judgment of the Apex Court in the case of NEERU YADAV v. STATE OF UTTAR PRADESH AND ANOTHER reported in 2015 (15) SCC 422, and brought to the notice of paragraph No.5 of the Judgment, wherein, the Apex Court held that, it actually calls in question the legal pregnability of the order passed by the High Court

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