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2019 DIGILAW 1065 (KAR)

State Of Karnataka v. Shobha

2019-06-03

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. 1. The present petition has been filed by the State under Section 439(2) of Cr.P.C. to cancel the bail granted to accused No.1 to 11 in Crl.Mis.No.123/2018 dated 24.03.2018 passed by the II-Addl. District and Sessions & Special Judge at Dharwad in Crime No.24/2018. 2. I have heard the learned HCGP for the petitioner-State and learned counsel for respondents- Accused Nos.1 to 3, 5 to 7 and 9 to 11. 3. Before going to consider the submissions made by the learned counsel appearing for the parties, we will look into the genesis of the complaint. It speaks that accused No.3, Manjunath s/o Shankar Khangoudar came in acquaintance with the victim and he falsely promised her and because of the intimacy he had a sexual assaulted the victim. Thereafter, the victim went to the house of the accused and asked to marry her. Other accused persons also supported the accused No.3, Son of accused Nos.1 and 2 and abused the complainant in filthy language by referreing to the name of the caste instead of helping the victim girl, they threatened her with dire consequences and also threatened that she should not lodge any complaint against the accused No.3. The matter was reported to elders for compromise. Ultimately matter was not settled and complaint came to be registered. 4. It is further submission of the learned HCGP that though there is bar under Section 18 of the SC-ST (POA) Act, 1989, the Special Act and there is an Apex Court decision that the anticipatory bail cannot be granted to the accused who has been charge sheeted under the said Special Act. Without consideration of the said facts and circumstances, Court below has granted the anticipatory bail. It is his further submission that accused No.3 is involved in serious offence of the Section 376 and though there is sufficient material and prima facie material to show that the accused is involved in the offence, the Court below has wrongly exercised its power and granted anticipatory bail to the respondent-accused No.3. On these grounds, he prays to allow the petition and cancel the bail granted to the accused persons. 5. On these grounds, he prays to allow the petition and cancel the bail granted to the accused persons. 5. Per contra, the learned counsel for the respondents vehemently argued and submitted that the Court below after considering the material facts and even taking into consideration the decision of the Supreme Court has come to a right conclusion and has rightly exercised the power under Section 438 of Cr.P.C. and released the accused-respondents on bail. There are no good grounds to interfere with the order of the trial Court. Hence, he prays to dismiss the petition. 6. I have carefully and cautiously gone through the arguments of the learned counsel appearing for the parties and perused the records. 7. The learned HCGP has filed a memo dated 27.05.2019 stating that already investigation has been completed and insofar as accused No.5 is concerned, the case against himhas been dropped and no charge sheet has been filed as against him. The said memo is taken on record and petition as against the respondent -Accused No.5 is dismissed as they have not been arrayed as accused persons. 8. On close reading of the contents of the complaint and other material, facts clearly goes to show that three incidents have taken place according to the complainant. It is also not in dispute that the accused No.3 under the pretext of marrying has close acquaintance with the victim and thereafter he sexually assaulted the victim. There is no material to show that he was having an intention at the time of sexual assault on the victim who belongs to the Schedule Caste and Schedule Tribe and in that light, he sexually assaulted her. Even the allegations which have been made against other persons are general in nature and no specific averments have been made in this behalf. 9. It is well established preposition of law by Hon'ble Apex Court in the case of D.SUBHASH KASHINATH MAHAJAN V/S STATE OF MAHARASHTRA AND ANOTHER, (2018) 6 SCC 454 that there is no absolute bar against the grant of anticipatory bail in cases under Atrocities act if no prima facie case is made out or where on judicial scrutiny complaint is found to be prima facie malafide. Under the said circumstances, the Court below has rightly exercised power under Section 438 of Cr.P.C. and released the accused persons on bail. 10. Under the said circumstances, the Court below has rightly exercised power under Section 438 of Cr.P.C. and released the accused persons on bail. 10. The trial Court by referring the decision of Hon'ble Supreme Court in ASGARFI V/S STATE OF UTTAR PRADESH, 2018 AIR(Crl) 195 has come to a right conclusion. Though, it is contended by the Hon'ble HCGP that the Court below has not exercised the power in its right perspective but when the charge sheet has been filed, case against accused Nos.5 and 9 has been dropped that itself goes to show that false case has been registered in this behalf. 11. Taking into consideration, I feel that there are no good grounds to interfere with the order of the trial Court, the petition is liable to be dismissed and accordingly petition is dismissed.