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2024 DIGILAW 359 (AP)

Avula Reddi Nagaiah v. State of Andhra Pradesh

2024-03-15

T.MALLIKARJUNA RAO

body2024
JUDGMENT 1. This Criminal Petition, under Ss. 437 and 439 of Cr.P.C., has been filed by the Petitioner/Accused, seeking regular bail, in Cr.No.124 of 2023 of Tanakal Police Station, Sri Satya Sai District. 2. A case has been registered against the Petitioner for the offences punishable under Sec. 376, 506 of Indian Penal Code, 1860 (for short, 'the IPC') and Sec. 5 and 6 of Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act'). 3. Case of the Prosecution, in brief, is that the Victim is a minor girl, aged about 16 years and while she was studying 10th Class in Government High School, Tanaka, Accused, who was her Telugu Teacher and on one day, when she went to staff room for drinking water, Accused, who was alone at that time, by threatening her and committed rape on her and intimidated her that he will kill her, if she reveals the matter to anybody and due to fear, she did not disclose the incident to anybody and since then, he has been threatening her and committed rape on her several times and as a result, the Victim conceived and gave birth to a male child. In this connection, on the report of the Victim's mother, a case in above crime was registered for the above offences. 4. The Petitioner contends that he was never involved in the alleged offence as falsely implicated him in this case; the Victim and her parents had knowledge about the Victim's pregnancy and they made several attempts to catch the real culprit abut they failed and they implicated the Petitioner's name as Accused in this case by making him as scape goat; 164 Cr.P.C statement of the Victim was already recorded and material witnesses are examined and DNA report is awaiting from the lab, but the same facts was not brought to the trial Court's notice and intentionally helping the real accused by implicating the Petitioner for political reasons; he was remanded to Judicial custody on 17/10/2023, since then, he was languishing in jail; he is a permanent resident of Tanakalu village and there is no question of absconding from the clutches of the Court. 5. Learned Assistant Public Prosecutor vehemently opposed the grant of bail to the Petitioner. 6. I have heard both sides. 5. Learned Assistant Public Prosecutor vehemently opposed the grant of bail to the Petitioner. 6. I have heard both sides. Learned counsel on both sides reiterated their submissions on par with the contentions presented in the Petition as well as in the report. Consequently, the contentions raised by learned counsel need not be reproduced. 7. Learned counsel for the Petitioner submits that the material witnesses are examined, and the release of Petitioner/Accused would not affect the Prosecution's case and the Petitioner never involved in the alleged offence and the Petitioner being a school teacher, he made a complaint to the School Head master as well as the parents of the victim, when he noticed the close association of the Defacto Complainant/Victim with her friend, who is an adult person and her relative and the Petitioner's name was roped into this by exempting the real culprit. 8. As seen from the record, the Defacto complainant/Victim is a minor girl of 16 years age. It is a case of aggravated penetrative sexual assault and sexual exploitation committed on victim girl, while she was studying 10th class in Government school by the Petitioner, who was Telugu teacher. The Petitioner is shown to be aged about 39 years. 9. In Dharmander Singh @ Saheb V. The State (Govt. of NCT, Delhi), 2020 0 Supreme(Del) 1033 . the High Court of Delhi observed some parameters to deal with the bail applications pertaining to the POCSO offences. The court emphasized the significance of the age difference between the victim and the accused, noting that a greater age gap may indicate a higher degree of perversion in the alleged offence. 10. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course and reasons for grant of bail in cases involving serious offences should be given. [See Kalyan Chandra Sarkar v. Rajesh Ranjan; (2004) 7 SCC 528 . Dipak Shubhashchandra Mehta versus Central Bureau of Investigation and another; (2012) 4 SCC 134 , para 32. Vinod Bhandari versus State of Madhya Pradesh;(2016) 15 SCC 389, para13. and Lt. Col. Prasad Shrikant Purohit versus State of Maharashtra, (2018) 11 SCC 458 , para 29] 11. At the time of assigning reasons in order to grant/refuse bail, there should not be discussion of merits and demerits of the evidence. Vinod Bhandari versus State of Madhya Pradesh;(2016) 15 SCC 389, para13. and Lt. Col. Prasad Shrikant Purohit versus State of Maharashtra, (2018) 11 SCC 458 , para 29] 11. At the time of assigning reasons in order to grant/refuse bail, there should not be discussion of merits and demerits of the evidence. (See State of Bihar versus Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav, (2017) 2 SCC 178 , para 15) 12. Plea of the learned counsel for the Petitioner, that there is no allegation against the Petitioner and it is a case of no evidence against him, is not in consonance with the material on record. In support of the Prosecution's case, Prosecution has recorded the statement of material witnesses and the material placed supports the Prosecution's case. DNA report also prima facie falsifies the Petitioner's contention. However, prima facie, there is evidence on record connecting the petitioner with the alleged offence under Sec. 376, 506 of IPC and Sec. 5 and 6 of POCSO Act. Nothing has been brought to the notice of the Court from the material on record or otherwise, causing the Victim to implicate the Petitioner falsely in the present case. 13. It is true that pre-trial imprisonment cannot be used as substitute to the punishment without scrutiny of the evidence by the trial Court, but, at the same time, in a case where a girl was in such a situation, as referred to above, grant of bail to the Petitioner, at this stage, may also have an adverse impact on the society. Sec. 29 of POCSO Act reads as follows: 29. Presumption as to certain offences. - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sec. 3, 5, 7 and Sec. 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved." Thus, the provision of reverse onus under Sec. 29 of the POCSO Act has also to be given due weightage. Balance has to be maintained between the personal and societal interest. 14. Balance has to be maintained between the personal and societal interest. 14. In view of above, considering cumulative effect of entire facts and circumstances, without commenting upon the merits of the evidence and keeping in view the principles laid down by the Hon'ble Apex Court and other factors, like nature of offence, manner in which it has been committed and its impact on the society, Petitioner is not entitled for bail, at this stage. Hence, the petition is dismissed. 15. In the result, the Petition is dismissed. Miscellaneous applications pending, if any, shall stand closed.