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2020 DIGILAW 1315 (KAR)

K. P. Narasimhaswamy v. State Of Karnataka

2020-07-03

N.K.SUDHINDRARAO

body2020
JUDGMENT N.K. Sudhindrarao, J. - This matter is taken up through Video Conference today. 2. Learned counsel Sri Shivaraj N.Arali, for petitioner and Sri K.Nageshwarappa, learned HCGP for respondent is present. 3. The petition is filed under Section 439 of Cr.P.C. wherein the petitioner seeks grant of bail in Crime No.12/2020 for the offences punishable under Sections 354 & 376 of IPC and Sections 4, 8, 10 & 12 of POCSO Act, of the respondent Police Station. 4. The petitioner is stated to be in Judicial Custody from 30.01.2020. 5. The date of complaint is 29.01.2020. The petitioner was arrested on 30.01.2020 and remanded to judicial custody on 12.02.2020. 6. Previously, the petitioner had made application before the learned Special 2nd Additional District and Sessions Judge, Chitradurga in Spl.C.(POCSO) No.28/2020 under Section 439 of Cr.P.C. that came to be dismissed on 10.06.2020. Hence, this petition. 7. Copy of the petition is served on learned HCGP for respondent. 8. Heard. 9. The substance of the case as could be seen is that a criminal case came to be registered on 29.01.2020 for the offence punishable under Sections 354 & 376 of IPC and Sections 4, 8, 10 & 12 of POCSO Act against the petitioner. 10. The substance of the complaint as could be seen from the records is that the petitioner who is stated to be a teacher has committed sexual offence of the highest order against a child. The petitioner is one K.P.Narasimhaswamy, who is aged about 52 years working as Assistant Master. On 27.01.2020, there was a District Level Inspire Award function near Challakere, a child by name Kum.Janhavi, studying in sixth standard of Government Higher Primary school, was aged about 12 years and she was taken by Assistant Master/petitioner from 27.01.2020 to 28.01.2020. On 27.01.2020, after the function, the petitioner did not stay at Diet hostel which was accommodated for stay. But on 28.01.2020, in the morning, Assistant Master was absent. Thereafter, the victim girl informed her parents at 11:00 p.m., about the sexual assault by the petitioner. Even the statement of the petitioner is stated to have been recorded before JMFC on 31.01.2020. The child has narrated the overt acts of offences of causing hurt to the private parts and humiliation in entirety. In this connection, as stated above, on the strength of complaint lodged by one N.Somashekar, there it is mentioned that she was raped. Even the statement of the petitioner is stated to have been recorded before JMFC on 31.01.2020. The child has narrated the overt acts of offences of causing hurt to the private parts and humiliation in entirety. In this connection, as stated above, on the strength of complaint lodged by one N.Somashekar, there it is mentioned that she was raped. In the over all circumstances, complaint came to be lodged on 29.01.2020 and the victim girl has given her statement before the Police on 30.01.2020 and before JMFC on 31.01.2020. 11. Learned counsel for the petitioner would submit that the accused is innocent of the offence and he has made scapegoat by people who are enmically disposed against him. The petitioner was arrested on 30.01.2020. The bail application was filed on 12.02.2020 under Section 439 of Cr.P.C., and the same is pending. 12. Learned Government Pleader for respondent opposes the bail petition of the petitioner and submits that the petitioner has not made out ground for getting bail. The stay of the petitioner in judicial custody has no relevance for his release. The intentions of the petitioner are not good. The conduct of the petitioner is threatening also. He does not appear to be a law abiding citizen and has committed heinous offence and the father of the victim and victim have given the clear version of accused and he being the teacher has committed the offence. Hence, seeks for dismissal of the bail application. 13. It is seen that when the bail application was pending, the judicial custody of the accused person completed on 01.05.2020, by virtue of completion of 90 days. The charge sheet was submitted on 02.06.2020, while the accused was in judicial custody. Before that the learned counsel for the petitioner had filed a memo on 15.05.2020 and the contents of the same reads as under: "Memo filed on behalf of the accused: It is respectfully submitting that as follows: 1. In the above case the accused has already filed his bail petition under section : 439 of Code of criminal procedure for bail on in crime no.12/2020 of Rampura Police station, chitradurga Dist., before the court file on Hon'ble 2nd additional District and sessions judge at Chitradurga. 2. In the above case the accused has already filed his bail petition under section : 439 of Code of criminal procedure for bail on in crime no.12/2020 of Rampura Police station, chitradurga Dist., before the court file on Hon'ble 2nd additional District and sessions judge at Chitradurga. 2. On : 18/02/2020 the public prosecutor have filed his objection in the above case and the Hon'ble court have posted for hearing on 09/03/2020, then after the Hon'ble court have posted same stage next date, then after the Hon'ble Government of India passed lock down still continued. 3. In the above case the accused more then 100 days he is in judicial custody, the accused is earning person in his family, if the Hon'ble court have not consider this memo the accused and his family members are would be put to great hardship and injury. 4. Hence, it is prayed that the Hon'ble court may be pleased to permit me for submitting written arguments or through wattsapp video conference, in the interest of justice and equity." 14. That it is stated that statutory period of 90 days came for reckoning as the final report was not filed within the said period of 90 days. Regard being had to the fact that it was filed on 02.06.2020. Further, 90th day ended by 01.05.2020. The other material factors are that bail application was filed by the petitioner on 12.02.2020 and the same was pending before the learned District Judge. Considering the fact that the petitioner was in judicial custody, endeavors could have been done for disposing of the application but the same did not happen. After the expiry of 60 days, memo was filed by learned counsel appearing for the petitioner on 15.05.2020. In this connection, the learned judge rejected the bail application filed under Section 439 of Cr.P.C., on 10.06.2020. But it is pertinent to note that non-filing of charge sheet within the statutory period of 90 days was well within the knowledge of the learned District Judge. Under such circumstances, when prescribed period of judicial custody of the petitioner and no final report had already ended 08 days earlier, it was expected by the learned District Judge to keep the said crucial fact in mind and dispose of the matter. 15. Under such circumstances, when prescribed period of judicial custody of the petitioner and no final report had already ended 08 days earlier, it was expected by the learned District Judge to keep the said crucial fact in mind and dispose of the matter. 15. With these facts in hand, it was expected on the part of the Judge to keep rudiments of law in hand and dispose of the bail application. No doubt, the victim has stated about the overt acts specifically against the accused that is on the substantial part in discussing about the completion of 90 days, it is clearly a lapse. 16. Further, when the accused is in judicial custody in a criminal offence and when bail application comes for disposal, in the light of non-filing of the final report irrespective of nature of bail application, whether it is filed under Section 436, 437 or 167 of Cr.P.C.,, it is the duty of the court to ensure that vested rights are allowed to the concerned person when the mandatory provision mandates the court for granting the relief that cannot be plugged by focusing on the provision of law. There was all the space for the learned District Judge to consider the application filed under Section 439 or 167 of Cr.P.C., and dispose of the matter and that did not happen. This court only observes it as a lapse that could have been avoided. Further, the petitioner is stated to be a teacher and the allegations made against him required to be tried in the full fledged trial. Meanwhile, if he is ordered to be released on bail, no prejudice will be caused to the prosecution and ends of justice and apprehension of prosecution could be resolved by imposing suitable conditions. 17. Accordingly, petition is allowed. Petitioner is hereby released on bail in Cr.No.12/2020 registered by respondent-police against the petitioner for the offences punishable under Sections 354 & 376 of IPC and Sections 4, 8, 10 & 12 of POCSO Act, subject to the following conditions: i) The petitioner-accused shall execute a personal bond for Rs.2,00,000/- with a surety of a person possessing immovable properties for the likesum. ii) The petitioner-accused shall not terrorize the witnesses or tamper with the prosecution witnesses in any manner. ii) The petitioner-accused shall not terrorize the witnesses or tamper with the prosecution witnesses in any manner. iii) The petitioner-accused shall mark his attendance before the Investigating Officer of the above case on every 1st and 4th Saturday ofevery month between 7.00 p.m. to 8:00 p.m. for another period of six months from the date of release. However, such attendance during first 15 days of release of the petitioner is exempted, since the petitioner is to quarantine himself for 15 days from the date of release regard being had to the fact of pandemic Covid-19. iv) The petitioner-accused shall not move out of State of Karnataka without prior permission of the District Court for a period of six months from the date of release. v) The petitioner-accused shall not come into contact with any of prosecution witnesses. vi) The petitioner shall undergo medical check-up in the light of pandemic Covid-19, immediately upon his release on bail, by a medical officer and quarantine himself exclusively in his house for a period of 14 days from the date of release unless he is required for hospitalization to prevent further complications.