Back
2023 Supreme(Kar) 299
IN THE HIGH COURT OF KARNATAKA : DHARWAD BENCH
ANIL B. KATTI, J.
Manoj, S/o. Hanamanth Pujar, R/by His Mother Smt. Kasturi, W/o. Hanamanth Pujar – Petitioner
Versus
The State Of Karnataka, Represented By S.P.P. High Court Of Karnataka and Anr. - Respondents
Criminal Revision Petition No. 100453 Of 2022
Decided On : 12-07-2023
For the Petitioner: Sri. Iranagouda K. Kabbur and Sri. Shivakumar N. Bendigeri.
For the Respondents: Sri. Praveen Uppar.
Point of Law: Gravity of offence is not a relevant consideration for declining bail to juvenile.
Headnote:
Indian Penal Code, 1860 - Sections 354, (D), 363, 366(A), 376D - Protection of Children from Sexual Offences Act, 2012 - Sections 4, 6, 8 and 14 – Criminal Procedure Code, 1973 - Section 439 - Juvenile Justice (Care and Protection of Children) Act, 2015 - Section 12, (1), 13 (1)(ii), 17 and 18 - Bail application - Sexual assault - Forcible sexual intercourse - Appellant/CCWL-4 feeling aggrieved by order passed by first Appellate Court on file of II Addl. District and Sessions and Special Judge preferred this appeal – There is no evidence to prove minority of accused ordered to send accused for trial of Court competent jurisdiction where trial is pending. [Pra 18]
Finding of the Court: CCWL-4 has not taken plea of juvenility merely as an effort to hide his real age to avail benefit under JJ Act - First Appellate Court of its order has recorded specific finding that age of CCWL-4 is 17 years - Preliminary individual assessment report for Juvenile Justice Board obtained by Juvenile Board would also reveal that age of CCWL-4 is 17 years - Therefore, aforementioned judgment of Hon'ble Apex Court has no application to facts of present case and muchless, judgment of Hon'ble Apex Court does not deal with bail application of juvenile in terms of Section 12 of JJ Act - Welfare and well being of CCWL-4 can be taken care of by his mother and she is a fit and proper person to keep CCWL-4 under her custody - Order of first Appellate Court on file of II Addl. District and Sessions Judge and Special Judge is set aside - CCWL-4 is ordered to be released on bail
Result: Petition allowed.
ORDER :
Appellant/CCWL-4 feeling aggrieved by the order passed by first Appellate Court on the file of II Addl. District and Sessions and Special Judge, Dharwad, in Crl.A.No.35/2022 dated 04.06.2022 preferred this appeal.
2. Parties to the petition are referred with their ranks.
3. The factual matrix leading to the case of as assigned in the trial Court for the sake of convenience. prosecution can be stated in nutshell to the effect that CCWL-1 was following and teasing victim girl since one year and was pressurizing her to love him. In the month of August 2021, on Saturday CCWL-1 came to Basel Mission College, Dharwad, along with CCWL-7 and by force took victim in bus near KUD where CCWLs-2, 4 and 6 joined them and then victim was taken on bike near Om Ashram. CCWLs-6 and 7 also reached the said place, CCWL-7 kissed and touched body of victim and tried to undress her. Thereafter, CCWL-7 ran away from the spot by seeing the incident. CCWLs-1 to 7 have committed forcible sexual intercourse upon victim by using condom. They have video-graphed incident through mobile with CCWL-2 and all of them administered threat to victim not to disclose about the incident to anybody. After one week, CCWL-1 again came to Basel Mission College and met victim on showing video of earlier incident pressurized victim to come to Suryanagara. CCWLs-2 to 4, 6 and 8 threatened that if she discloses about the incident to anybody they are going to viral the video in social media. CCWLs-2, 4 and 6 have committed forcible sexual intercourse again on victim and further threatened to kill her, if she discloses about the incident to anybody. On these allegations made in the complaint, case was registered in Dharwad town police station in Cr.No.222/2021 for the offences punishable under Sections 354, 354(D), 363, 366(A), 376D read with 34 IPC, Sections 4, 6, 8 and 14 of the POCSO Act, 2012. On completion of investigation, charge-sheet is filed.
4. In response to notice, learned High Court Government Pleader for respondent No.1/State is present. Respondent No.2 though served remained absent. Learned High Court Government Pleader has not filed any separate objections. However, under memo dated 20.06.2023 has produced documents.
5. Heard the arguments of both sides.
6. On careful perusal of the charge-sheet material and complaint filed by victim, it would go to show that allegations are against all CCWLs having committed penetrative sexual assault on victim. The incident of sexual assault is alleged to have been video-graphed through the mobile of CCWL-2.
7. The earlier bail application filed by CCWL-4 at crime stage before Juvenile Justice Board came to be rejected on 10.01.2022. The appeal filed against the said order in Crl.A.No.10/2022 also came to be dismissed by order dated 08.02.2022. After filing charge-sheet, fresh bail application was filed before Juvenile Justice Board on 11.03.2022 which came to be rejected which is challenged before the first Appellate Court on the file of II Addl. District and Sessions and Special Judge, Dharwad, in Crl.A.No.35/2022. The first Appellate Court by order dated 04.06.2022 dismissed the appeal.
8. The charge-sheet material would go to show that the age of appellant/CCWL-4 is 17 years and the date of birth of victim girl is 29.06.2004. Appellant and victim both were minors as on the date of incident. The charge-sheet material would reveal that CCWLs-1 to 6 have committed penetrative sexual assault on the victim.
9. Learned counsel for the appellant argued that consideration of regular bail under Section 439 of Cr.P.C. and the bail application under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as 'JJ Act') are different. The nature and gravity of offence is not a matter required to be considered while deciding the application filed under Section 12 of the JJ Act.
10. Per contra, learned High Court Government Pleader for respondent/State has argued that there are seri
