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2020 DIGILAW 1004 (KAR)

Bharati v. Pundalik

2020-06-08

ASHOK G.NIJAGANNAVAR

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JUDGMENT Ashok G Nijagannavar, J. - This petition is filed by the complainant-victim under Section 439(2) of Cr.P.C. to cancel the order dated 03.04.2019 in Criminal Miscellaneous No.690 of 2019 passed by the III Additional District and Sessions Judge and Special Court, Under POCSO Act, Belagavi granting bail to accused/respondent No.1 for the offence punishable under Sections 376, 420 and 506 of IPC and Section 4 and 6 POCSO Act, 2012. 2. The facts leading to this petition are that the learned III Additional District and Sessions Judge and Special Court, Under POCSO Act, Belagavi passed an order dated 03.04.2019 granting anticipatory bail to accused/respondent No.1 subject to certain terms and conditions. Being aggrieved by the said order, the petitioner/complainant has filed this petition for cancellation of bail mainly on following grounds : (1) The prosecution has mislead the Court by stating in the objections that the investigation is completed and charge sheet is filed. (2) The learned Sessions Judge misconstrued the facts of the case on the reason that the alleged offences are not punishable with death or life imprisonment. (3) The accused is not required for custodial interrogation. (4) The accused has violated the bail conditions by making an attempt to cause threat to the life of the complainant/victim. 3. Heard the learned counsel for the complainant/ petitioner and the learned counsel appearing for the respondent No.1-accused and also the learned HCGP for respondent No.2-State. 4. The main grievance of the complainant-victim is that the trial Court has failed to consider the relevant factors while granting the anticipatory bail, thus, it has resulted in miscarriage of justice. The accused has caused threat to the life of victim and the complaint has been registered in this regard. The police have conducted the investigation and have also filed charge sheet, which prima facie goes to show that the anticipatory bail granted to the accused/respondent No.1 needs to be cancelled. 5. Per Contra, the learned counsel for the respondent No.1/accused submitted that according to complainant the alleged incident of rape was committed on 12.11.2017, but the complaint was filed on 19.03.2019. There was inordinate delay of one and half years from the date of incident. The respondent No.1/accused was not in his village on the date of alleged incident but he was on duty. Considering this aspect and other merits of the case the bail was granted. There was inordinate delay of one and half years from the date of incident. The respondent No.1/accused was not in his village on the date of alleged incident but he was on duty. Considering this aspect and other merits of the case the bail was granted. Later a false complaint is filed by the complainant/victim with vindictive motive and harass the accused and also to make a ground for cancellation of bail. 6. The learned HCGP submitted that after granting bail, immediately the prosecution had filed an application for cancellation of bail, there was no connivance as alleged by the complainant/victim. Even though investigation was not completed and charge sheet was not filed as stated in the objection ; the learned Sessions Judge has rightly considered that investigation is under progress as such there is no question of misleading the Court. 7. It is well established principle that unless very cogent and overwhelming circumstances are made out, the bail need not be cancelled mechanically. In a catena of decisions of the Hon'ble Supreme Court it has been held that the power to grant bail is not to be exercised as if the punishment before the trial is being imposed. The only material considerations in such a situation are whether the accused will be readily available for that on that he is likely to abuse the discretion granted in his favour by tampering with evidence, if there is no primafacie case, there is no question of considering the other circumstances. In some cases, even where a prima facie case is made out the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment. 8. The Hon'ble Supreme Court in the case of Myakala Dharmarajam v. State of Telangana, (2020) 2 SCC 743 by adverting to a decision in the case of Kanwar Singh Meena v. State of Rajasthan, (2012) 12 SCC 180 : (2013) 4 SCC (Cri) 614 has held as under : "9. It is trite law that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. It is trite law that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant material indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in canceling the bail." 9. In the case on hand, as already stated above, the bail was granted by assigning reasons and on the basis of the certificate said to have been issued by the concerned authority indicating that as on the date of alleged incident of rape the accused was not at the said place of incident but he was on duty at some other place. The custodial interrogation was not necessary on the reason that the complaint was filed after lapse of one and half years. Generally, the accused would be required for custodial interrogation for medical examination only when the complaint is filed immediately after the incident 10. Having perused the several decisions of the Hon'ble Supreme Court and the law laid down by the Hon'ble Apex Court on the scope of power to be exercised in the matter of cancellation of bail, it is necessary to consider whether the order passed by the Sessions Court granting bail is perverse or suffers from any infirmities which has resulted in the miscarriage of justice. 11. On considering the submissions of the learned counsel for the petitioner-complainant and respondent No.1-accused and also learned HCGP for State and the impugned order dated 03.04.2019, this Court is of the view that the order passed by the Sessions Court is not perverse or unjustified. 12. The next point raised by the learned Counsel for the petitioner-complainant is that the accused has caused threat to the victim by making an attempt to hit the vehicle. No doubt, the police have taken cognizance of the complaint and have conducted the investigation and filed the charge sheet. But there is no prima facie material to indicate that such an attempt was made by the accused. The Court must bear in mind that it is a settled principle of law that the bail once granted should not be cancelled unless the cogent case, based on the supervening event has been made out. 13. But there is no prima facie material to indicate that such an attempt was made by the accused. The Court must bear in mind that it is a settled principle of law that the bail once granted should not be cancelled unless the cogent case, based on the supervening event has been made out. 13. For the above reasons, this Court holds that the application for cancellation of bail deserves to be rejected as there are no circumstances to warrant the cancellation of bail. There is no cogent material to indicate that the accused has been guilty of the misconduct which would warrant his being deprived of his personal liberty. Accordingly, petition stands dismissed.