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2022 DIGILAW 1184 (KAR)

Dyamanna v. State of Karnataka

2022-09-08

P.N.DESAI

body2022
JUDGMENT 1. This petition is filed under Sec. 439 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short), seeking to enlarge the petitioner, who is arraigned as accused No.1, on bail in Crime No.157/2021 of Talikot Police Station, registered for the offences punishable under Ss. 143, 147, 323, 343, 363, 376 (i) (n), 354, 504 and 506 read with Sec. 149 of Indian Penal Code (for short 'IPC') and under Ss. 3 (1) (r) (s), 3 (2) (v) (a) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) New Act-2015 (for short 'SC/ST (PA) Act') and under Ss. P(L) and 12 of the Protection of Children from Sexual Offences (POCSO) Act-2012 (for short 'POCSO Act'), pending on the file of Addl. Sessions Judge Fast Track Special Court-I (POCSO) at Vijayapur, Dist: Vijayapur. 2. It is the case of the prosecution that the father of the victim has filed a complaint stating that his daughter was kidnapped by the petitioner. It is further contended that when the victim was traveling to school in the vehicle of the petitioner, at that time accused No.1 started giving sexual harassment. It is also alleged that family members of the petitioner are also supported the petitioner. They have also threatened the complainant by stating that they will kidnap his daughter. Thereafter, the complaint has lodged by complainant on 7/9/2021. The petitioner and the victim were traced. The petitioner is arrested on 16/9/2021. The police have filed the charge sheet. The bail petition filed by the petitioner came to be rejected by the Sessions Court. Hence, the petitioner has filed this petition. 3. Heard Sri. Shivanand V. Pattanashetti, learned counsel for the petitioner and Sri. Gururaj V. Hasilkar, the learned High Court Government Pleader for the respondent No.1 - State. 4. The learned counsel for the petitioner argued that the petitioner is innocent and he has not committed the offences as alleged. The medical report of the victim shows that hymen is intact. The allegations leveled against the petitioner are not proved. Accused Nos.2 to 10 are already granted bail. The petitioner is sole earning member of the family. The petitioner is in judicial custody from 16/9/2021. The petitioner is ready to abide by any conditions that may be imposed by this Court and ready to offer surety. The investigation is already completed and charge sheet is also filed. Accused Nos.2 to 10 are already granted bail. The petitioner is sole earning member of the family. The petitioner is in judicial custody from 16/9/2021. The petitioner is ready to abide by any conditions that may be imposed by this Court and ready to offer surety. The investigation is already completed and charge sheet is also filed. Hence, the learned counsel for the petitioner prays to allow the petition. 5. Against this, the learned High Court Government Pleader for the respondent No.1 - State argued that the petitioner kidnapped the victim who is a minor. There is statement of the victim under Sec. 164 of Cr.P.C implicating the petitioner. He further argued that the petitioner has also taken the photos which are pornographic. He has committed the offence under Ss. P(L) and 12 of the POCSO Act. If the petitioner is released on bail he may threaten the prosecution witnesses and he may abscond. Hence, he prays to dismiss the petition. 6. I have perused the FIR, charge sheet, medical report, statement of the victim under Sec. 164 of the Cr.P.C. and other materials. All these materials at this stage prima-facie indicate that the victim is a minor. She admits that she has given statement under Sec. 164 of Cr.P.C. before the Magistrate. It is evident from the said statement that the petitioner was subjected her to sexual intercourse against her will and without her consent. Offcourse, subsequently she has stated that on her own she went along with the petitioner. It is also evident that the petitioner is aged about 27 years and having three children. The petitioner know very well that victim is a minor, even if on her own wish she has agreed for sexual intercourse. The petitioner being married man, having three children, ought not to had sexual intercourse with the victim. It appears that the petitioner has misused the minority of the victim. There are photo copies, which are produced to show that the petitioner has committed sexual intercourse and taken obscene photos with victim. Still the evidence of PW.1 is going on. Therefore, alleged charge sheet materials and petitioner having three children and victim is a minor, the petitioner is not entitled for bail at this stage. 7. It is settled principle of law that bail is a rule and rejection is an exception. Still the evidence of PW.1 is going on. Therefore, alleged charge sheet materials and petitioner having three children and victim is a minor, the petitioner is not entitled for bail at this stage. 7. It is settled principle of law that bail is a rule and rejection is an exception. While granting or rejecting the bail application, the Court will have to take into consideration, (1) the nature and seriousness of the offence; (2) character of the accused; (3) circumstances which are peculiar to accused; (4) reasonable probabilities of presence of the accused not being secured at trial; (5) reasonable apprehension of witnesses being tampered with; and (6) larger interest of public or the state and similar other considerations, which arise when a Court is asked to admit the accused to bail in a non-bailable offence. 8. So, in the light of these principles, if the present allegations against the petitioner, the charge sheet materials and statement of victim under Sec. 164 of Cr.P.C., is considered, in my considered view the petitioner is not entitled to be enlarged on bail. 9. The apprehension of the prosecution that if the petitioner is released on bail, he may threaten the victim and tamper with the prosecution witnesses cannot be ruled out. Accordingly, I proceed to pass the following: ORDER The criminal petition filed under Sec. 439 of Cr.P.C. is dismissed.