Karnataka High Court
Balu @ Balaraj vs State Of Karnataka By on 7 February, 2020
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION No.1 of 2020
BETWEEN
BALU @ BALARAJ,
S/O VENKATAIAH,
AGED ABOUT 23 YEARS,
RESIDING AT ARDHANAHALLI VILLAGE,
HULLAHALLI HOBLI,
NANJANGUD TALUK,
MYSORE DISTRICT-571 312.
...PETITIONER
(BY SRI K.G.KUMARA, ADVOCATE FOR
SRI SANTHOSH B., ADVOCATE)
AND
STATE OF KARNATAKA BY
KAGGALIPURA POLICE,
BANGALORE-560 082.
(REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR,
HIGH COURT BUILDING-560 001.)
...RESPONDENT
(BY SRI MAHESH SHETTY, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF THE CODE OF CRIMINAL PROCEDURE, 1973,
PRAYING TO SET ASIDE THE ORDER DATED 20.11.2019
PASSED IN SPL.C.C.No.349/2018 ON THE FILE OF THE HON'BLE
II ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU, WHICH IS FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 354(A), 511 AND 363 OF
2
INDIAN PENAL CODE AND UNDER SECTIONS 8 AND 12 OF
POSCO ACT, 2012, AND CONSEQUENTLY DISCHARGE HIM
FROM THIS CASE.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the petitioner/accused under Section 397 of Criminal
Procedure Code (for short 'Cr.P.C.') assailing the order of dismissal of the application filed under Section 227 of Cr.P.C. by the II Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru (hereinafter referred to as the 'Trial Court') in Spl.C.No.349/2018 vide order dated 20.11.2019.
2. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State.
3. The case of the petitioner is that the respondent Kaggalipura Police filed the charge sheet against him for 3 the offence under Sections 354A, 506, 511 & 363 of Indian Penal Code (for short 'IPC') and Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') on the basis of the complaint lodged by the victim-CW.1 before the Police on 25.05.2018 alleging that previously she was staying at Padmanabhanagar along with her family and was studying in 10th Std. At that time, the accused fell in love with her and was always compelling her to love him. The accused used to threaten her by saying that if she does not love him, he will kill her and commit suicide. At that stage, she did not disclose the same to her parents and later, she and her family shifted their house to Uttari village. The accused after searching for her address came to Uttari village on 24.05.2018, at 8.30 am. when she was proceeding to the college and the accused forcibly dragger her near to his bike with an intention to kidnap her. Immediately, she raised an alarm and the village people came and rescued her, but the accused ran away from the spot. At that time, her mother came there and collected the key bunch, one 4 Oppo mobile phone and Bajaj Pulsar motor cycle belonging to the accused. While lodging the complaint, she has stated that her age as 16 years. Therefore, the Police registered the case for the alleged offence under the IPC including the offence under the POCSO Act. The accused was arrested and released on bail. After completion of the investigation, the charge sheet came to be filed by the Investigating Officer and thereafter, the accused filed the present application under Section 227 of Cr.P.C. seeking discharge. The Trial Court dismissed the said application. Assailing the same, the accused is before this Court by way of this revision petition.
4. Learned counsel for the petitioner/accused contended that the case of the complainant is one of a false complaint. The accused not at all went to her village and never tried to kidnap the victim-CW.1. The ingredients made out in the complaint do not attract the offence under Sections 363, 511 or 354A of IPC and even otherwise, she is aged more than 18 years and as per the 5 charge sheet, her date of birth is 13.03.2000. The alleged offence took place on 24.05.2018. If her date of birth is calculated, it comes to 18 years 2 months, which shows that she is a major. The Trial Court has wrongly held that the age of the victim is below 18 years. The provision of POCSO Act is not at all attracted in order to file charge sheet. Further, it is contended that there is a contradiction in the statements of the witnesses namely, Krishnachari and Venkatappa and statement of the victim made before the Police as well as in the 164 statement made before the Magistrate and her signature also differs. Therefore, on this ground, he prayed for allowing the revision petition.
5. Per contra, learned High Court Government Pleader supported the order the Trial Court. However, he has fairly conceded and admitted that as per the charge sheet material and the college certificate collected by the Investigating Officer, the date of birth of the victim is 13.02.2000 and the incident took place on 24.05.2018, which shows that she is 18 years 2 months old. He 6 further contended that the accused went to Uttari village in his vehicle and he has dragged the victim by holding her hand and when she cried, she was rescued by two witnesses including the mother, but the accused ran away from the spot. Therefore, at this stage, the Court cannot re-appreciate the statements and the contradictions cannot be looked into. Any variance in the signature cannot be considered at this stage, on the other hand, the offences under Sections 354A, 363, 511 and 506 of IPC are attracted. Therefore, he prayed for dismissal of the revision petition.
6. Upon hearing the arguments and on perusal of the record, the point that arises for consideration is as follows:
" Whether the order under revision passed by the Trial Court calls for interference by this Court?"
7. Perusal of the records shows that CW.2 lodged complaint to the Police on 25.05.2018 alleging that on 24.05.2018, at 8.30 a.m., the accused came to Uttari 7 village in his motorcycle and dragged the victim by holding her hand. When she raised hue and cry, the village people ie. Krishnachari and Venkatappa came and rescued her. At that time, her mother came there and the accused ran away from the spot, but the key bunch, one Oppo mobile phone and the Bajaj Pulsar Vehicle were collected by them in the spot. She has also stated that previously the accused fell in love with the victim girl and the accused was always compelling her to love him and if she does not love him, he threatened to kill her and thereafter commit suicide. He also told all his other friends that she is loving him even though she was not loving him. The statement of CW.1 cannot be disbelived at this stage. The same was repeated by her in her statement recorded by the Magistrate under Section 164 of Cr.P.C. Apart from that, Krishnachari and Venkatappa have stated that they came and rescued the complainant from the clutches of the accused. Her mother also stated the same thing. Though the mother of the complainant stated that her age is below 18 years in the complaint, but the record of the Police 8 shows that the victim has completed the age of 18 years. Therefore, except the difference in age in order to attract the provisions of POCSO Act, the remaining offences were considered by the Special court. Therefore, in view of the victim being aged more than 18 years, the offence under POCSO Act would not be attracted. As per Section 2(d) of the POCSO Act, 'child' means any person below the age of eighteen years. Since the victim has already completed 18 years, the provision of POCSO Act is not attracted. Therefore, filing of charge sheet under the POCSO Act is not correct. The accused is entitled for discharge under the POCSO Act.
8. However, on perusal of the statement, CW.1 stated that the accused threatened her to kill and later he would commit suicide, if she does not love him and also dragged her on the road by holding her hand on the date of the incident. Whether the accused tried to kidnap her for any other purpose and committed any other offence cannot be looked at this stage. CW.2 has stated that the accused 9 dragged the victim. At this stage, the Court cannot jump into the conclusion and appreciate the probative value of the statement to frame the charge for the offence under Sections 363 and 511 of IPC. Anyhow, an attempt has been made by the accused to abduct her. Therefore, the contention of learned counsel for the petitioner cannot be acceptable. The Court cannot go deep by appreciating the probative value of the statements at this stage disbelieving the statement is not required. Therefore, the order under revision requires to be partly set aside in respect of offence under POCSO Act and for the remaining offences under IPC, the accused has to face the trial. Hence, the following order:
The Criminal Revision Petition is allowed in part. The order passed by the Special Judge/Trial Court is set aside. The application under Section 227 of Cr.P.C. is partly allowed. The petitioner/accused is discharged for the offence under Section 12 of the POCSO Act. However, he has to face trial for the offences under IPC. The Special 10 Court is directed to send the records to the jurisdictional Magistrate for proceeding with the case, accordance with law.
Sd/-
JUDGE mv