Karnataka High Court
Irayya S/O. Dundayya Mathapati vs Ramesh Alias Kumar on 22 June, 2022
Author: K. Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
CRIMINAL PETITION NO.101136 OF 2022
BETWEEN
IRAYYA S/O. DUNDAYYA MATHAPATI
AGE 40 YEARS, OCC. AGRICULTURE
R/O. CHIMMAD,TQ. RABKAVI- BANAHATTI-
587312
...PETITIONER
(BY SRI.B. ANWAR BASHA, ADVOCATE)
AND
1 . RAMESH ALIAS KUMAR
S/O. SHRISHAIL PATTADAKALMATH
ALIAS MATHPATI
AGE. 30 YEARS, OCC. AGRICULTURE
R/O. JUNJURKOPPA GALLI, MUDHOL-587313,
TQ. MUDHOL, DIST. BAGALKOT
2. THE STATE OF KARNATAKA
BY PSI MUDHOL PS -587313
TQ. MUDHOL DIST. BAGALKOT
REPD. BY STATE PUBLIC PROSECUTOR
HIGH COURT BLDG, DHARWAD
...RESPONDENTS
(BY SRI.PRAKASH HOSAMANE, ADV.FOR R1)
(BY SMT.GIRIJA S. HIREMATH, HCGP FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 439(2) OF CR.P.C.,
SEEKING TO SET ASIDE THE ORDER GRANTING BAIL TO RESPONDENT
NO.1/ACCUSED PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BAGALKOT IN MUDHOL P.S. CR.NO.43/2022 DATED
23.02.2022 FOR THE OFFENCES U/S 363, 354(B), 354C, 354(D), 342,
376(1), 376(2)(J), 506 OF IPC, AND SECTIONS 4 AND 6 OF PREVENTION
OF CHILDREN FROM SEXUAL OFFENCES ACT 2012, AND ORDER TO
2
RESPONDENT NO.2 TO ARREST THE RESPONDENT NO.1/ACCUSED AND
COMMIT HIM TO JUDICIAL CUSTODY.
THIS PETITION COMING ON FOR ORDERS THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This criminal petition is filed by the father of the victim girl under Section 439(2) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.', for short) for canceling the bail of respondent no.1/accused granted by II Addl. District and Sessions Judge, Bagalkot in Mudhol P.S.Crime No.43/2022(POCSO) for the offence punishable under Sections 363, 354(B), 354(C), 354(D), 342, 376(1), 376(2)(J), 506 of Indian Penal Code, 1860 (hereinafter referred to as the 'IPC', for short) and under Sections 4 and 6 of Protection of Children from Sexual Offence Act, 2012 (hereinafter referred as 'POCSO ACT' for short.)
2. Heard the learned counsel for petitioner, learned counsel for respondent No.1 as well as learned High Court Government Pleader for respondent No.2-State. 3
3. The case of the petitioner is that the victim girl aged about 16 years said to be studying in I PUC and she was sent to her aunts house for study purpose. From her aunt's house she was attending the classes. Respondent no1-accused said to be younger brother of her maternal uncle i.e. younger sister of her mother's husband brother is none other than junior uncle or younger brother is co-brother of the petitioner.
4. It is further alleged in the complaint by the victim that she herself filed complaint before Police on 06.02.2022 that when she was studying in college accused used to harass her by insisting her to love him and also through mobile phone he is harassing. Accordingly, on 26.11.2021 at about 12.00 noon when she was in the college, yet to attend one more class, the accused came to the college stating that her father came to see her and waiting for her. Under the guise of taking her to her father, he took her to hotel room and forcibly committed sexual assault on her inspite of her request that she is none other than daughter. But, inspite of the same, he has committed rape on her and took some photographs and threatened her that he will web host the same in social media if 4 she disclose the matter to any body. Thinking about her family prestige and her aunt's family prestige she has not disclosed the matter to anybody. Subsequently, it was brought to the notice of the junior uncle. Accused started harassing her continuously through Whatsapp. Inspite of she blocked his number, he used to torture her by sending messages from different mobile numbers. Therefore, complaint came to be registered against him. After registering the case, police arrested the petitioner on 11.02.2022 and remanded him in judicial custody. The accused filed application for bail before II Addl. District and Sessions Judge, Bagalkot and the same came to be allowed on 23.02.2022 by imposing certain conditions which is under challenge.
5. Learned counsel for the petitioner contended that the victim is a minor girl aged about 16 years. She was studying in I Pre-University College. She went to the house of her aunt (younger sister of her mother) where the accused is younger brother of uncle(husband of her aunt) came in contact and she also used to speak to him as he was her junior uncle. Taking advantage of the same, the accused stated to be sending messages to her. In spite 5 of blocking the phone number, the accused used to take some others phone and was messaging her. On 26.11.2021, in the name of her father, he abducted the victim girl and told that her father is waiting in the room in a lodge and committed rape in spite of her requests stating that she is none other than the daughter to him. The trial Court not considered the relationship of the accused and the victim i.e., father and daughter relationship with regard to the offence committed, which is against the nature, has released him on bail and even after the accused being released, the accused has created Whatsapp in the name of the victim and created messages in the name of the victim as she is sending the messages to the accused and also threatening the witnesses and complainant for withdrawing the complaint. Therefore a case is also registered against the accused in Crime No.76/2022 for the offence under Section 506 of IPC on 24.03.2022. The police are also not taking proper investigation of Whatsapp messages and the trial Court without proper reasoning granted bail within a span of 10 days without giving proper findings and waiting filing of the charge sheet. Therefore, the petitioner prayed for setting the impugned order granting bail.
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6. Learned High Court Government Pleader for the respondent No.2/State also supported the case of the petitioner and contended that the accused and the victim's relationship is of a father and daughter and he has committed rape on the daughter which is against the nature. The relationship was not properly discussed by the trial Court and blindly granted bail which amounts to perverse finding and is liable to be set aside. Section 164 Cr.P.C. statement of the victim girl reveals, in spite of her requests the accused committed forcible sexual assault on her. Even the accused also stated in his voluntary statement that he is uncle of the victim and father in relationship. Such being the case, she prayed for allowing the petition. Hence, she prayed for canceling the bail.
7. Per contra, learned counsel for the respondent No.1/accused objected the petition and contended that, the trial Court, after considering the entire material on record, has granted bail which cannot be said to be a perverse finding. The Whatsapp messages reveals that the complainant/victim and the accused were loving each other. Therefore, it cannot be said at this stage 7 without going for trial that the accused forcibly committed rape on the victim. That the accused has not all violated any of the conditions of the bail and tampered any witnesses. A false complaint has been filed at the instance of this petitioner and the family members she was forced to lodge a complaint. Now investigation is completed and charge sheet has been filed. He further contended that keeping the accused in jail would amount to a pre-trial punishment, therefore, it is contended that the trial Court has rightly granted bail to the accused and no need to interfere with the order of trial Court. Hence, prayed for dismissal of the petition.
Learned counsel further contends that mobile phone, email account, passport etc of the accused are seized by the police and sent to FSL for analysis and the accused is a marine engineer. Hence, prayed for dismissal of the petition.
8. Having heard the learned counsel for the parties, perused the records.
9. The points that arise for my consideration are: 8
i) Whether, the petitioner has made out a ground to show that the order granting bail by the trial Court is perverse without considering the material on record and is liable to be set aside?
ii) What order?
10. On perusal of the records, it reveals, the victim, who is the daughter of the petitioner, filed complaint on 06.02.2022 and her age is 16 years studying I PUC. She has stated, her native place is Rabakavi, Banahatti and for the purpose of education, she was staying in the house of her aunt at Mudhol. It is not in dispute that the mother of the victim and sister-in-law of the accused are blood sisters i.e., the elder brother of the accused married the aunt of the victim, the relationship of the victim and the accused is nothing but the father and daughter and the victim was studying in Kumakale College and by taking advantage of she residing in the same house, the accused moved with the victim leisurely. Subsequently, it appears, as per the complaint, the accused started sending messages to her and started loving her. She is stated to have blocked the contact number of the accused. In spite of the same, the accused used to send her messages by using others mobile. 9 That on 26.11.2021 when the victim was in the college, the accused came there on his bullet, and though the victim was yet to attend the last period, the accused told her that her father has come and therefore he has come for taking her. Believing his version, she went along with the accused and the accused took her to a room in a lodge near by the bus stand at Mudhol and committed forcible intercourse in spite of her resistance. The accused is also stated to have taken some photographs and threatened her that she should not disclose the incident to anyone otherwise he will web host and viral the photographs on social media. Due to fear, the victim did not inform the family members and later brought to the notice of her aunt, who is youngest sister of her mother and thereafter discussing the matter with the relatives, compliant came to be filed. The accused was arrested on 11.02.2022 and within a span of expiry of 14 days of first remand, the Sessions Judge hurriedly granted bail holding that investigation is almost complete and his presence would not be required and keeping the accused in jail will amount to pre-trial punishment. Though the trial Court went on discussing the statement of the victim under Section 154 of Cr.P.C. has been reiterated in 164 Cr.P.C. and there is medical evidence 10 which reveals hymen was teared which amounts to sexual intercourse etc and even the delay was said to be explained by the victim has been considered but the conclusion for granting bail is not forthcoming except stating investigation is completed. The allegations required to be considered only at a full fledged trial. The Hon'ble Supreme Court held in various cases that, the Court granting bail is one thing but for cancellation of bail, the Court requires to verify whether there is any perverse finding by the trial Court in considering the bail application. If perverse finding is found, then the Superior Court can set aside the bail granted to accused.
11. Now looking to the order of the learned trial Judge which had granted bail within 14 days, hurriedly, holding that investigation is almost completed and everything would be ascertained only after trial even without waiting for further investigation and filing of charge sheet by the police, as per Section 167 of Cr.P.C., as the police have time for filing charge sheet is 90 days. The trial court has forgotten the offence alleged against the accused is not only under Section 376 of IPC but also Sections 4 11 and 6 of POCSO Act which is a Special Act enacted by the Parliament to curtail the sexual assault on the minors girls. Even otherwise, she is a child and her consent and willingness is immaterial. Of course, youngsters loving and eloping, having sexual affairs, committing sexual intercourse, sometimes, the Court grants bail after filing of the charge sheet and considering the nature of the relationship of the parties. As first remand for 14 days itself was not completed, the trial Court hurriedly granted bail merely holding that investigation is almost completed and the allegations required to ascertained only during trial, which amounts to perverse finding. That apart, the trial Court not considered the relationship of the accused as well as the victim, as they are not lovers but it is father and daughter relationship. The accused is none other than the younger bother of the co-brother of her father. Such being the case, the relationship is not considered by the learned trial Judge, even without waiting the further explanation of the remand application by the police waiting the final report. Therefore, I am of the considered opinion that the findings given by the trial Court is nothing but a perverse finding without ascertaining the gravity of 12 the offence and the relationship of the parties which is against the nature, which is not permissible.
12. Of course every case requires to be proved only after full fledged trial but in the present case on hand, the offence alleged is not only a serious one but the subsequent conduct of the accused reveals after getting released on bail, he started tampering the witnesses, threatening the witnesses for getting acquittal. A case is also registered against the accused for an offence under Section 506 of IPC in FIR No.76/2022 which reveals that the accused again is threatening the witnesses and tampering the witnesses which definitely also amounts to violation of the conditions imposed by the trial court. That apart the documents produced by the petitioner's counsel reveals the Whatsapp messages in the name of the victim girl showing her photographs and nick name as Lx in the name of the victim girl. Somebody has created the Whatsapp and DP and sending messages to the victim as good as the victim is still loving him and called himself as husband and he gives reply as wife which would go to show that somebody or the accused himself has created fake Whatsapp 13 messages in the name of the victim girl and the same is required to be investigated by the police. But as per the contention of the petitioner's counsel, the police are not showing any interest in investigating the same. Though the police already seized face book account, Whatsapp account, Email, mobile phone of the accused including Passport, that itself cannot be presumed that the accused is not able to purchase one more mobile and one more SIM for the purpose of creating the messages in the name of the victim and send messages and threaten the witnesses. The petitioner is said to be a Marine Engineer. He is an educated person who knows about the consequences of the offence committed and also falling in love with the victim who is none other than the daughter in relationship.
13. Therefore, I am of the view that the order passed by the trial court requires to be set aside and to cancel the bail otherwise, it will send a wrong message to the society and everybody will start loving the girls in their family without bothering their relationship which creates a problem and there would no meaning in enacting the POCSO Act in preventing these sexual 14 offences on minor children. Therefore, in the interest of the public at large and the society, it is deemed fit and proper to cancel the bail of the respondent No.1 which is granted by the trial Court.
14. Accordingly, the criminal petition is allowed. The order of bail granted by the leaned II Additional District and Sessions Judge, Bagalkot, in Mudhol Crime No.43/2022 dated 23.02.2022 is hereby set aside and his bail is cancelled.
The police are directed to arrest the accused and commit him to judicial custody by producing before the trial court.
The Registry is directed to intimate and send a copy this order to the concerned Court forthwith which passed the order.
Sd/-
JUDGE kmv