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2022 DIGILAW 721 (KAR)

STATE OF KARNATAKA v. SHANTHRAJ

2022-06-08

H.P.SANDESH

body2022
JUDGMENT : H.P. Sandesh, J. 1. This petition is filed under Sec. 439(2) of Cr.P.C. seeking cancellation of the order of bail by setting aside the order dtd. 10/8/2020 passed on the learned Principal District and Sessions Judge, Chamarajanagar. 2. Heard the learned High Court Government Pleader appearing for the petitioner-State and the learned counsel appearing for the respondent. 3. The factual matrix of the case is that the victim who is aged about 14 years studying in 9th standard was subjected to the sexual act by this petitioner, who happens to be cousin brother of the victim and incident was taken place on 15/5/2020 and the complaint was given by the victim herself on 18/5/2020 wherein she has narrated about the incident that when she went to attend nature call at about 10.00 p.m., this petitioner entered inside the house and her mother was not in the house and she had been to Sikallpura village and her brothers were also not in the house and taking advantage of the said circumstance, the respondent forcibly held her and closed her mouth and locked the door and made her to fall on the ground and immediately took out the sickle and threatened not to scream and committed the sexual act and after that he threatened not to reveal about the same to anybody and in the meantime, her second brother and aunt knocked the door and the respondent tried to ran away from the place and when the victim's brother tried to hold him, he managed to escape from the spot and hence, the villagers came and told that they would arrange the panchayat but no panchayat was conducted and hence, there is a delay in lodging the complaint. 4. 4. The learned High Court Government Pleader appearing for the State would submit that the Trial Court granted bail in favour of the respondent and while granting the bail, the Trial Court made an observation that on careful reading of the statement of the victim recorded under Sec. 164 of Cr.P.C. the victim has not whispered anything regarding ingredients necessary to constitute an offence punishable under Sec. 4 and 6 of the POCSO Act or under Sec. 346(i) of IPC and it is also observed that the disclaimer statement recorded by the Magistrate also envisages that the statement of the victim was recorded without any kind of coercion or tutoring and is her voluntary statement out of her wish and will and further observed that the accused is in judicial custody since 19/5/2020, in unprecedented situation of corona pandemic wherein the prison is congested the trial Court granted bail in favour of the respondent. Hence, the present petition is filed seeking cancellation of bail under Sec. 439(2) of Cr.P.C. 5. The learned High Court Government Pleader appearing for the State would vehemently contend that the contents of the complaint is very specific that this respondent had sexual intercourse forcibly with her causing threat by placing the sickle on her neck stating that he would commit her murder and this respondent is none other than the cousin brother of the victim and in the complaint there is explanation regarding the delay is concerned. The Trial Court has committed an error in not considering the statement of the victim recorded under Sec. 164 of Cr.P.C. in its entirety and came to the erroneous conclusion that the victim has not whispered anything regarding ingredients necessary to invoke Sec. 4 and 6 of POCSO Act and the medical examination is also done on the date of the complaint itself and it shows that the victim is subjected for sexual act forcibly and inspite of it, the Trial Court committed an error in coming to the conclusion that the respondent is in custody from 19/5/2020 and the prison is congested due to unprecedented situation of corona pandemic and ordered to release the respondent in a capricious manner and the said order amounts to perverse in nature and the same requires interference of this Court. 6. 6. Per contra, the learned counsel appearing for the respondent would submit that the Trial Court while exercising the discretion extracted the 164 statement of the victim girl wherein taking into note of the same has come to the conclusion that nothing is whispered regarding the offence under Sec. 4 and 6 of the POCSO Act and the order does not suffer from any perversity and it does not require any interference. The counsel also submits that the medical evidence shows that the victim may have been subjected for sexual act forcibly and no positive opinion is given by the doctor and hence, the question of interfering with the findings of the Trial Court in granting the bail does not arise and it is not a case for invoking Sec. 439(2) of Cr.P.C. 7. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record it is clear that the Court has to take note of the contents of the complaint wherein the victim girl has categorically stated that taking advantage of her loneliness, this respondent illegally trespassed into the house and subjected her for sexual act against her wish and also threatened her by placing a sickle on her neck and the Court has also to take note of the contents of the complaint and the statement of the victim under Sec. 164 of Cr.P.C wherein the victim has stated that this respondent entered her house illegally when she was alone and by threatening her subjected for sexual act forcibly against her wish and when her brother and aunt came to the house, he tried to escape from the spot and at that time, her brother tried to catch him, he twisted his hand and escaped from the spot and the villagers assured that they will hold the panchayat, but no panchayat was held and thereafter, the complaint came to be filed. No doubt, on entire reading of 164 statement, it reveals that the victim has not stated anything about subjecting her for sexual act against her wish but narrated the incident how it was taken place and the Court has to take note of the medical evidence available on record wherein it reveals that the hymen was ruptured and the opinion of the doctor that the victim may have been subjected for sexual act forcibly and also the history was given that he has not allowed her to cry by closing her mouth by his hand and also history is mentioned that forceful intercourse was committed by this respondent at around 10.00 p.m. on 15/5/2020 in her home and this aspect has also not been considered by the Trial Court while exercising the powers under Sec. 439 of Cr.P.C. and has not read the 164 statement of the victim in its entirety and inspite of that the other reason given by the Trial Court is that the jail is congested due to corona pandemic. The very approach of the Trial Court is erroneous when victim herself lodged the complaint stating that this respondent subjected her for sexual act, who is a minor, below the age of 18 years and she was pursuing her education in 9th standard and apart from that medical evidence also supports the case of the prosecution and a callous reason is given while enlarging this respondent on bail, that the jail is congested due to covid-pandemic, which is not a valid reason to enlarge the respondent on bail when the victim girl who is a minor was subjected for sexual act that too by a cousin brother of the victim and the heinous offence committed by this petitioner is not taken note by the Trial Court. 8. 8. The Apex Court in the judgment reported in Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana (Koli) and Another, (2021) 6 SCC 230 while setting aside the order of the High Court has observed that seriousness and gravity of offences committed and severity of punishment in event of conviction and the failure of High Court to consider while granting bail all these facts into consideration amounts to perverse and hence, set aside the order of the high Court granting bail and also it is further observed that while considering the bail petition Judge should made thought process while considering the bail petition and the judicial discretion in granting or refusing bail, as in case of any other discretion which is vested in court as judicial institution, is not unstructured, duty to record reasons is significant safeguard which ensures that discretion which is entrusted to court is exercised in judicious manner recording of reasons in judicial order ensures that thought process underlying order is subject to scrutiny and that it meets objective standards of reason and justice thus, the bail order which does not contain reasons for prima facie concluding that bail should be granted is liable to be set aside for non- application of mind. 9. The judgment of the Apex Court is aptly applicable to the case on hand and it is a case of applying the judicious mind by the Judge, who has not made any judicious thought process while exercising the discretion inspite of victim herself lodging the complaint making an allegation against this respondent that he subjected her for sexual act taking advantage of her loneliness and entered inside the house and closed the door and also closed her mouth and placing the sickle on her neck subjected her for sexual act and also failed to take note of the factual aspects and also the medical evidence available on record, which suggests subjecting her for sexual act and in a callous manner exercised the discretion in favour of the respondent, which amounts to perversity and requires to be set aside and hence, the order of the Trial Court granting bail in favour of respondent is set aside by invoking Sec. 439(2) of Cr.P.C. and directed to take the respondent into custody forthwith. 10. In view of the discussions made above, I pass the following: ORDER: The petition is allowed. The impugned order dtd. 10. In view of the discussions made above, I pass the following: ORDER: The petition is allowed. The impugned order dtd. 10/8/2020 passed in Spl.C.No. 77/2020 by the Trial Court is set aside and directed to take the respondent into custody forthwith. The Registry is directed to send the copy of the order to the Presiding Officer for his thought process in future.