Karnataka High Court
Mr Pascal Mazurier vs The State Of Karnataka on 17 October, 2012
Author: H N Nagamohan Das
Bench: H.N. Nagamohan Das
1
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE H.N. NAGAMOHAN DAS
CRIMINAL PETITION No. 4308/2012
BETWEEN :
----------------
Mr. PASCAL MAZURIER
S/O JACQUES MAZURIER
AGED ABOUT 39 YEARS
PRESENTLY AT R/O FLAT No.102,
PINE VIEW, EDWARD ROAD,
VASANTH NAGAR,
BANGALORE - 560 052. ... PETITIONER
(By Sri.C.V.NAGESH, SR.COUNSEL FOR
M/S MAHESH & CO., ADVS.)
AND :
-------
1. THE STATE OF KARNATAKA
BY HIGH GROUNDS POLICE
STATION, BANGALORE.
2. Mrs. SUJA JONE MAZURIER
AGED ABOUT 37 YEARS
W/O PASCAL MAZURIER
No.102, PINE, VIEW,
EDWARD ROAD, VASANTH NAGAR,
BANGALORE - 560 052. ... RESPONDENTS
(By Smt PRAMILA NESARGI, SR.COUNSEL, FOR R2
Sri.H.M.CHANDRAMOULI, SPP FOR R1)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 CR.P.C.BY THE ADVOCATE FOR THE PETITIONER
PRAYING THAT TO ENLARGE THE PETITIONER ON BAIL IN
CR.No.153/2012 OF HIGH GROUNDS P.S., BANGALORE CITY,
FOR THE OFFENCE P/U/S/ 376 OF IPC.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, THIS DAY, H.N.NAGAMOHAN
DAS. J, PRONOUNCED THE FOLLOWING;
ORDER
Petitioner is a French citizen working as Chief of Joint Chancellery, Consulate of France, Palace grounds, Bangalore. On 20.10.2001 petitioner got married to Indian citizen by name Ms.Suja Jones Mazurier at Port Saint Mary in France. Out of this wedlock three children are born. The first male child was born on 1.7.2005, second girl child was born on 2.8.2008 and third male child was born on 24.9.2010. From 2008, the petitioner, his wife and children are residing at Bangalore. Petitioner's wife Suja Jones lodged a complaint with respondent police on 14.6.2012 interalia contending that petitioner committed sexual abuse of the minor daughter Stella on 13.6.2012. This complaint came to be 3 registered in Cr.No.153/2012 for the offences punishable under Section 376 IPC. Investigation is completed and charge sheet is filed. The bail petition filed by the petitioner before the Fast Track Court-I, Bengaluru in Crl.Misc.No.3191/2012 came to be dismissed vide order dated 26.07.2012. Therefore, the petitioner is before this court.
2. Sri C.V.Nagesh, learned senior counsel for the petitioner contends that investigation is completed and charge sheet is filed and there are no circumstances warranting continuance of the petitioner in custody. There is delay in lodging the complaint, there are no eyewitnesses and even the circumstantial evidence will not support the case of prosecution. Though the medical report given by the Bangalore Baptist Hospital indicate that there is sexual abuse on the victim and the same is not linked to the involvement of the petitioner. On the other hand, the DNA report filed with the charge sheet specifies the non-involvement of the petitioner in the crime. Further the 4 statement of the victim is not recorded. The entire prosecution story is blown up unproportionately and without any basis. Therefore, it is contended that petitioner is entitled for bail.
3. Smt.Pramila Nesargi, learned senior counsel for the complainant contend that the offence charged against the petitioner is a serious crime against the society. The matter is under further investigation. The DNA report produced with the charge sheet suffers from serious procedural irregularities, authenticity and by incompetent persons. In the event of petitioner being enlarged on bail there are chances of he tampering with the witnesses and jumping the conditions of bail and ultimately not available for trial. Reliance is placed on several decisions.
4. Sri Chandra Mouli, learned SPP contends that the nature of offence will have far reaching effect on the moral of society. Since the petitioner is foreign national there are chances 5 of he jumping the bail conditions and escape from being tried. He opposed the bail petition.
5. Heard arguments on both the side and perused the entire petition papers.
6. The basic principles of criminal jurisprudence are :
i) Accused is presumed to be innocent until proved guilty.
ii) The burden of proving the guilt is on the prosecution.
iii) The prosecution to prove the guilt beyond all reasonable doubt.
iv) If any doubt regarding guilt then the benefit of doubt must go to the accused.
v) Let ninety nine criminals go unpunished, but let no one innocent person be punished.
7. On the basis of above principles the Apex Court examined the scope of Section 438 and 439 Criminal Procedure Code in several pronouncements. Some of the important pronouncements are as under :
The Supreme Court in G.Narasimhalu v. Public Prosecutor, AP AIR 1978 SC 429 held as under:
(Mod. Law Rev. ibid, p. 50-51) 6
7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.
8. Another relevant factor is as to whether the, course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. [Patrick Devlin, The Criminal Prosecution in England London 1960 p. 75-Mod. Law Rev. ibid p. 50.] The Supreme Court in Rajesh Ranjan Yadav vs. CBI (2007) 1 SCC 70 held as under:
10. In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted.
As observed by this Court in State of U.P. vs. Amarmani Tripathi 2005(8) SCC 21, vide paragraph 18: 7
"It is well settled that the 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 [see Prahlad Singh Bhati v. NCT, Delhi [2001(4) SCC 280] and Gurcharan Singh v. State (Delhi Admn.[(1978(1) SCC 118]. 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. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra 8 Sarkar v. Rajesh Ranjan [(2004(7) SCC 528 pp. 535-36, para 11]:
"11. The law in regard to grant or refusal of bail is very settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.9
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh 2002(3) SCC 598 and Puran v. Rambilas 2001 (6) SCC 338).
This Court also in specific terms held that (SCC pp.536- 37, para 14):
"The condition laid down under Section 437 (1)(i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitled the accused to be enlarged on bail, nor the fact that the trial is not likely to be concluded, in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is 10 severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail."
(emphasis supplied) The above decisions have referred to the decision of this Court in the appellant's own case Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & anr. 2004(7) SCC 528 in which it was clearly held that the mere fact that the accused has undergone a long period of incarceration by itself would not entitle him to be enlarged on bail.
8. At this stage it is not necessary to screen, assess and appreciate the evidence collected by the investigating agency in detail. There is no doubt that the alleged charge is a serious one, against the nature and the society. It is equally necessary to find out whether evidence available on record establishes a prima- facie case. If the petitioner is enlarged on bail the chance of he tampering with witness and jumping the bail conditions is yet another important aspect to be considered.
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9. Keeping in mind the above principles and the law laid down by the Apex Court in the decisions referred to supra, it is necessary to examine the fact situation in the present case. The complainant is none other than the wife of the petitioner. The victim is the daughter of the petitioner aged about 3 years 10 months. According to the complaint the incident had taken place on 13.06.2012. The complaint was lodged on 14.06.2012. In the complaint it is stated that on 05.06.2012 Dr.Shaibya Saldanha examined the minor girl stella and gave preliminary report on 06.06.2012 stating that the minor girl was being sexually and physically abused by the accused. Then why the complainant has not lodged the complaint with the police immediately ? Why the complainant has waited for second event to happen on 13.06.2012? There is delay in lodging the complaint. There are no eyewitnesses to the incident. According to the complainant this minor girl told that the petitioner had hurt her. Thus the victim is capable of speaking and her statement is not recorded. The 12 circumstantial evidence is based on the statements given by one Smt.Geeta who worked as Nanny in the house of the complainant, Smt.Jyoti, the cook and Mr. Charles, the driver. A perusal of the statements given by these three witnesses do not specify that petitioner committed the offence. At this stage, even the statement given by the complainant is vague, not definite and clear.
10. The medical report given by the Bangalore Baptist Hospital specifies that there is sexual assault on the minor victim Stella. This medical report do not connect the involvement of the petitioner in the crime. On the other hand, the DNA report dated 6.7.2012 specifies that the vaginal swab (in a glass test tube), Anal Swab (in a glass test tube), Vaginal smear slide (in a slide box) and Anal smear slide (in a slide box) sent by the Bangalore Baptist Hospital was analysed and the relevant conclusions are as under: 13
5. The Yfiler DNA profiles of the stains found on the vaginal swab and anal swab sent in item nos.5(1) and 5(2), respectively, are not matching with that of the Yfiler DNA profile of the sample blood sent in item nos.9 and 10 collected from Mr.Pascal Mazurier s/o Mr.Jaques Mazurier.
6. The Identifiler DNA profiles of the stains found on the vaginal swab and anal swab sent in item nos. 5(1) and 5(2), respectively, are not matching with that of the Identifiler DNA profiles of the stains found on the vaginal swab and anal swab sent in item nos. 7 and 8, respectively.
I have therefore, considered the possibility of:
1. Mr.Pascal Mazurier s/o Mr.Jaques Mazurier, sample blood sent in item nos. 9 and 10, is being the contributor of the seminal stains found on the bed cover, hodike (bed sheet), full-arm top, chaddi sent in tem nos.1, 2, 3 and 4, respectively.
2. Mr.Pascal Mazurier s/o Mr.Jazues Mazurier, sample blood sent in item nos.9 and 10, is not being the contributor of the seminal stains found on the 14 vaginal swab and anal swab sent in item nos.5(1) and 5(2), respectively.
11. Thus the report submitted by the Bangalore Baptist Hospital read with the DNA report do not prima-facie indicate the involvement of the petitioner in the alleged crime. The contention of learned counsel for the complainant that the DNA report is given by incompetent persons, there is procedural irregularity and the same is not scientifically done are all matter of evidence required to be examined during the course of trial. So also the medical report given by the Baptist Hospital is also required to be put to test during the trial. At this stage the material on record do not establish a prima-facie case.
12. In the charge sheet it is stated that if additional evidence is available then they will produce the same before the court. Nowhere in the charge sheet it is specified that the matter 15 is being further investigated. In the circumstances, it is not possible to accept the contention of learned counsel for respondents that the matter is under further investigation.
13. The statement of Geeta, Jyothi and Charles are in favour of the petitioner and therefor the question of he tampering the same will not arise. Even the DNA report is in favour of the petitioner and therefore, the question of he tampering the same will not arise. Since the investigation is completed there are no circumstances warranting continuance of petitioner in custody.
14. Petitioner is a French citizen and presently working as Chief of Joint Chancellory, Consulate of France, Palace Grounds, Bangalore. The apprehension in the mind of prosecution that the petitioner may jump the conditions of bail and that he may not be available for trial is to be safeguarded by putting him on strict terms. For the reasons stated above, the following:16
ORDER I) Petition is hereby allowed.
II) Petitioner is to be enlarged on bail subject to the following conditions:
a) Petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two local solvent sureties for the likesum to the satisfaction of the jurisdictional Magistrate.
b) Petitioner shall surrender his passport with the jurisdictional Magistrate.
c) Without prior permission from the jurisdictional Magistrate the petitioner shall not leave the jurisdiction of the court.
d) On every hearing date, petitioner shall appear before the jurisdictional Magistrate.
e) In no manner the petitioner shall tamper with the prosecution witnesses.17
f) Violation of any one of the conditions stated above will result in cancellation of this bail order.
Sd/-
JUDGE.
DKB.