The importance of complying with mandatory provisions of the law, recording reasons for granting or denying bail, and applying judicial mind in bail matters.

ORDER :

1. This petition is filed under Section 439(2) of Cr.P.C praying this Court to quash the impugned order dated 10.08.2021 in Crime No.56/2021 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. Heard the learned counsel for the petitioner, the learned High Court Government Pleader appearing for respondent No.1-State and the learned counsel for respondent No.2.

3. The factual matrix of the case is that accused No.1 has been prosecuted for the offence punishable under Sections 376(2), 506 and 384 of IPC and Sections 4, 5(f), 6, 8 and 14 of Protection of Children from Sexual Offences Act, 2012 CPOCSO Act' for short) and Section 67(b) of the Information Technology Act. The allegation made against respondent No.2 herein/accused No.1 is that he being the lecturer of the victim student College, subjected the victim girl for sexual act with the help of his wife and she was made naked and photograph was also taken and the caused life threat not to disclose the same to anybody and subsequently, on several occasions subjected her for sexual act. The victim girl stated that when he demanded money, she has stolen an amount of Rs.10,000/- from the house and given to respondent No.2. Based on the complaint, case has been registered against both respondent No.2 and also his wife, who is arraigned as accused No.2. During the crime stage, respondent No.2 herein has filed an application for grant of bail and also sought for interim bail and interim bail was not granted and on the next day, the Trial Court considered the material and passed the order enlarging him on bail. Hence, the present petition is filed under Section 439(2) of Cr.P.C. for cancellation of the bail.

4. The main contention of the learned counsel for the petitioner before this Court is that allowing the bail application is illegal, perverse and without application of mind. It is also contended that the Trial Court without considering the presumption enunciated in the POCSO Act, granted bail. The Trial Court over-looked how the incident took place and failed to appreciate the allegations made in the complaint which constituted prima facie case against respondent No.2. The learned counsel submits that the incident took place when the victim girl was below 16 years of age, which makes it mandatory on the Court to issue notice to the informant/complainant/victim. In the present case, without giving an opportunity to the victim girl/complainant/informant, the order has been passed. Hence, the order of granting bail is perverse, capricious and unlawful. The learned counsel submits that there is a serious apprehension of tampering with evidence. The learned counsel in support of his argument brought to the notice of this Court, particularly page No.15 of the order of the Trial Court, wherein the Trial Court has observed that taking into note of the facts and circumstances of the case, family background, present health condition of accused No.2(wife), minor daughter and threat of losing employment of accused No.1, it appears that this is a right case to exercise discretion in favour of accused No.1 by granting bail. Hence, the very reasoning given by the Trial Court is perverse and it requires interference of this Court.

5. The learned counsel in support of his arguments also relied upon the judgment of this Court passed in Crl.P.No.6696/2020 dated 29.01.2021, wherein this Court has exercised the powers under Section 482 of Cr.P.C. relying upon the judgment of the Apex Court in the case of MAHIPAL v. RAJESH KUMAR @ POLIA AND ANOTHER reported in (2020) 2 SCC 118 and in the case of NEERU YADAV v. STATE OF UTTAR PRADESH AND ANOTHER reported in 2016 (15) SCC 422, wherein the Apex has categorically held that if the order impugned is passed, if it is absolutely perverse and totally indefensible, the Court can exercise the powers under Section 482/439(