Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1493 (KAR)

Kallayya Ishwarayya Pujari v. State Of Karnataka

2020-07-24

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This petition is filed by the accused under Section 439 of Cr.P.C. seeking bail in Crime No.68/2019 of Mundgod P.S., pending in Special Case No.32/2019 on the file of Special Judge Court, Uttara Kannada, Karwar registered for the offence punishable under Section 325 of SC & ST (POA) Act and Sections 342, 376 of IPC and 6, 8, 12 of Protection of Children from Sexual Offence Act, 2012. 2. The case of the prosecution is that on 07.04.2019 at about 1:30 p.m. in the afternoon, the victim was playing in the road near the house of the accused and the victim girl came crying and after enquiry the victim girl disclosed that the acused called her in to the house inducing to give money to purchase chocolate and made her to remove cloth and applied oil on his private parts and also the victim and committed sexual assault on her knowing that the victim was aged about 6 years and belong to SC and ST Caste. Thereafter, all of them went to the house of the accused and asked about the said fact, but the accused told that he has not done anything. 3. On registering the complaint, the police have conducted the investigation. The accused was arrested on 08.04.2019. The bail petition filed before the Special Court is rejected. The accused is in judicial custody till this day. 4. Heard the learned counsel for the petitioner and the learned HCGP for the respondent-State. Perused the charge records. 5. It is the submission of the learned counsel for the petitioner that, no incident has taken place as alleged and there is a enmity between the complainant family and the accused family as they are residing in the same colony. He would further submit that, the medical certificate shows that the victim has not sustained any injury even though the same is mentioned in the complaint. He further submitted that, the petitioner is in judicial custody since last 15 months i.e. from 08.04.2019. He further submitted that, the petitioner is having wife and children and he is not having any bad antecedents or criminal record. Hence, he prays to allow the petition. 6. Per contra, the learned HCGP submitted that, the offence punishable under Section 6 of the POCSO Act is punishable for not less than 20 years. He further submitted that, the petitioner is having wife and children and he is not having any bad antecedents or criminal record. Hence, he prays to allow the petition. 6. Per contra, the learned HCGP submitted that, the offence punishable under Section 6 of the POCSO Act is punishable for not less than 20 years. The victim is a child aged 6 years and the petitioner has committed sexual assault on the girl aged 6 years and he is not entitled for bail. Hence, he prays to reject the bail petition. 7. Having heard the submissions made by the learned counsels for the petitioner and the learned HCGP, this Court has gone through the charge sheet records. As per the complaint the victim girl has sustained swelling on her private part. The victim has been examined on the same day and the medical record reveal no such injury on the private part of the victim girl. The medical report reveal that the hymen of the victim girl is intact. At this stage, it is needless to make an elaborate discussion in order to give any specific finding as the same is not permissible while considering the bail application. 8. It is well settled that matters to be considered in an application for bail are: (i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. 9. 9. In a decision reported in the case of Dataram Singh v. State of Uttara Pradesh and Another, (2018) 3 SCC 22 the Hon ble Apex Court held as under: A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific of fences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 10. In the present case the investigation is completed. No grounds have been made out by the prosecution to show that custodial interrogation of the petitioner is necessary. The accused is residing at the address shown in the cause title and the same is not disputed. There is no any bad antecedent or criminal record of the petitioner/accused. The petitioner/accused is in judicial custody since 08.04.2019 i.e. for a period of more than 15 months. The main objection of the prosecution is that in the event of granting bail, accused is likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set right by imposing stringent conditions. 11. In the facts and circumstances of the case and submission of the counsel, this Court is of the view there are valid grounds for granting bail, subject to certain terms and conditions. Hence, I proceed to pass the following: ORDER The petition filed under section 439 of Cr.P.C. is allowed. Consequently, the petitioner/accused shall be released on bail in Crime No.68/2019 of Mundgod P.S., pending in Special Case No.32/2019 on the file of Special Judge Court, Uttara Kannada, Karwar, subject to the following conditions. Hence, I proceed to pass the following: ORDER The petition filed under section 439 of Cr.P.C. is allowed. Consequently, the petitioner/accused shall be released on bail in Crime No.68/2019 of Mundgod P.S., pending in Special Case No.32/2019 on the file of Special Judge Court, Uttara Kannada, Karwar, subject to the following conditions. i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (one lakh rupees only) with two sureties for the like sum to the satisfaction of the jurisdictional Court. In view of the COVID-19, the petitioner is permitted to furnish the surety within three months. ii) The petitioner shall not indulge in tampering the prosecution witnesses. iii) The petitioner shall not leave the jurisdiction of the trial Court/Sessions Court without prior permission, till the disposal of the case.