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IN THE HIGH COURT OF KARNATAKA
P.N.Desai, J.
Dyamanna - Appellant
Versus
State of Karnataka - Respondent
Criminal Petition No. 200481/2022
Decided On : 08-09-2022
BAIL - Criminal Procedure - Sec. 439 of Cr.P.C. - Ss. 143, 147, 323, 343, 363, 376 (i) (n), 354, 504, 506 read with Sec. 149 of IPC, Ss. 3 (1) (r) (s), 3 (2) (v) (a) of SC/ST (PA) Act, Ss. P(L) and 12 of POCSO Act - The court considered the nature and seriousness of the offences, character of the accused, circumstances peculiar to accused, reasonable probabilities of presence of accused not being secured at trial, reasonable apprehension of witnesses being tampered with, and larger interest of public or the state, and concluded that the petitioner is not entitled to be enlarged on bail.
Fact of the Case:
The petitioner filed a bail petition under Sec. 439 of Cr.P.C. seeking release in a case involving offences under various sections of IPC, SC/ST (PA) Act, and POCSO Act. The prosecution alleged that the petitioner kidnapped and sexually harassed a minor victim.
Finding of the Court:
The court found that the materials prima-facie indicated that the victim was a minor and had given a statement under Sec. 164 of Cr.P.C. implicating the petitioner. It concluded that the petitioner, being a married man with three children, misused the minority of the victim and was not entitled to bail at this stage.
Issues: Nature and seriousness of the offences, character of the accused, circumstances peculiar to accused, reasonable probabilities of presence of accused not being secured at trial, reasonable apprehension of witnesses being tampered with, larger interest of public or the state.
Ratio Decidendi: Bail is a rule and rejection is an exception. The court must consider the nature and seriousness of the offence, character of the accused, circumstances peculiar to accused, reasonable probabilities of presence of accused not being secured at trial, reasonable apprehension of witnesses being tampered with, and larger interest of public or the state when deciding on bail in a non-bailable offence.
Final Decision: The criminal petition filed under Sec. 439 of Cr.P.C. was dismissed.
JUDGMENT
1. This petition is filed under Sec. 439 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short), seeking to enlarge the petitioner, who is arraigned as accused No.1, on bail in Crime No.157/2021 of Talikot Police Station, registered for the offences punishable under Ss. 143, 147, 323, 343, 363, 376 (i) (n), 354, 504 and 506 read with Sec. 149 of Indian Penal Code (for short 'IPC') and under Ss. 3 (1) (r) (s), 3 (2) (v) (a) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) New Act-2015 (for short 'SC/ST (PA) Act') and under Ss. P(L) and 12 of the Protection of Children from Sexual Offences (POCSO) Act-2012 (for short 'POCSO Act'), pending on the file of Addl. Sessions Judge Fast Track Special Court-I (POCSO) at Vijayapur, Dist: Vijayapur.
2. It is the case of the prosecution that the father of the victim has filed a complaint stating that his daughter was kidnapped by the petitioner. It is further contended that when the victim was traveling to school in the vehicle of the petitioner, at that time accused No.1 started giving sexual harassment. It is also alleged that family members of the petitioner are also supported the petitioner. They have also threatened the complainant by stating that they will kidnap his daughter. Thereafter, the complaint has lodged by complainant on 7/9/2021. The petitioner and the victim were traced. The petitioner is arrested on 16/9/2021. The police have filed the charge sheet. The bail petition filed by the petitioner came to be rejected by the Sessions Court. Hence, the petitioner has filed this petition.
3. Heard Sri. Shivanand V. Pattanashetti, learned counsel for the petitioner and Sri. Gururaj V. Hasilkar, the learned High Court Government Pleader for the respondent No.1 - State.
4. The learned counsel for the petitioner argued that the petitioner is innocent and he has not committed the offences as alleged. The medical report of the victim shows that hymen is intact. The allegations leveled against the petitioner are not proved. Accused Nos.2 to 10 are already granted bail. The petitioner is sole earning member of the family. The petitioner is in judicial custody from 16/9/2021. The petitioner is ready to abide by any conditions that may be imposed by this Court and ready to offer surety. The investigation is already completed and charge sheet is also filed. Hence, the learned counsel for the petitioner prays to allow the petition.
5. Against this, the learned High Court Government Pleader for the respondent No.1 - State argued that the petitioner kidnapped the victim who is a minor. There is statement of the victim under Sec. 164 of Cr.P.C implicating the petitioner. He further argued that the petitioner has also taken the photos which are pornographic. He has committed the offence under Ss. P(L) and 12 of the POCSO Act. If the petitioner is released on bail he may threaten the prosecution witnesses and he may abscond. Hence, he prays to dismiss the petition.
6. I have perused the FIR, charge sheet, medical report, statement of the victim under Sec. 164 of the Cr.P.C. and other materials. All these materials at this stage prima-facie indicate that the victim is a minor. She admits that she has given statement under Sec. 164 of Cr.P.C. before the Magistrate. It is evident from the said statement that the petitioner was subjected her to sexual intercourse against her will and without her consent. Offcourse, subsequently she has stated that on her own she went along with the petitioner. It is also evident that the petitioner is aged about 27 years and having three children. The petitioner know very well that victim is a minor, even if on her own wish she has agreed for sexual intercourse. The petitioner being married man, having three children, ought not to had sexual intercourse with the victim. It appears that the petitioner has misused the minority of the victim. There are photo copies, which are produced to show that the petitioner has committed sexu
Bail is a rule and rejection is an exception. The court must consider various factors, including the nature and seriousness of the offence, when deciding on bail in a non-bailable offence.
The seriousness of the allegations, the age of the victim, and the petitioner's criminal antecedents are crucial factors in determining bail eligibility.
The willingness of the victim in the marriage and the impact of the petitioner's custody on the victim and their children were crucial in the court's decision to grant bail.
The court considered the victim's conflicting statements, her age, and the circumstances of her marriage in granting bail to the accused, highlighting the importance of evaluating the totality of cir....
Discrepancies in victim's statements, absence of supporting evidence, and delay in filing the complaint can be considered in granting bail.
The court considered the statutory presumption of guilt operating against the accused in a case relating to an offence under the POCSO Act, the specific role of the accused in the alleged crime, and ....
Court affirmed that granting bail in sexual harassment cases involving minors poses risks to victim safety and potential witness tampering.
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