Karnataka High Court
Joseph Kevin Selvadoray vs The State Of Karnataka on 1 August, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2024:KHC:30519
CRL.P No. 5930 of 2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 5930 OF 2024
BETWEEN:
JOSEPH KEVIN SELVADORAY
S/O LATE J E SELVADORAY
AGED ABOUT 53 YEARS
RESIDING AT FLAT 1B
LAZARUS ENCLAVE
15 CAMPBELL ROAD
AUSTIN TOWN
BANGALORE - 560 047.
...PETITIONER
(BY SRI ANANT MANDGI, ADV., A/W
SRI AMIT A MANDGI, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ASHOK NAGAR
POLICE STATION, REPRESENTED
Digitally signed
by NANDINI MS
BY THE STATE PUBLIC PROSECUTOR
Location: High HIGH COURT BUILDING
Court of BENGALURU - 560 001.
Karnataka
2. SHABANA B.S
W/O JOSEPH KEVIN SELVADORAY
AGED MAJOR
RESIDING AT N460/1, 4TH A CROSS
KORAMANAGALA 3RD BLOCK
BANGALORE - 560 034.
...RESPONDENTS
(BY SRI K. NAGESHWARAPPA, HCGP FOR R-1;
SRI RAKSHITH R, ADV., FOR R-2)
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NC: 2024:KHC:30519
CRL.P No. 5930 of 2024
THIS CRL.P IS FILED U/S.438 CR.P.C PRAYING TO ALLOW
THIS PETITION AND ORDER THAT IN THE EVNET OF THE ARREST OF
THE PETITIONER BY THE RESPONDENT POLICE IN CR.NO.103/2024
FOR OFFENCE P/US/ 506 OF IPC AND SEC.7,8 OF POCSO ACT 2012
THE PETITIONER BE ENLARGED ON BAIL WITH CONNECTION.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. Accused no.1 in Crime No.103/2024 registered by Ashoknagar Police Station, Bengaluru City, for the offences punishable under Sections 7 & 8 of the Protection of Children From Sexual Offences Act, 2012 (for short, 'POCSO Act') and Section 506 IPC, is before this Court under Section 438 Cr.PC.
2. Heard the learned Counsel for the parties.
3. FIR in Crime No.103/2024 was registered by Ashoknagar Police Station, Bengaluru City, against the petitioner and another for the aforesaid offences on the basis of the first information dated 02.04.2024 received from respondent no.2 herein who is the mother of the victim girl. Apprehending arrest in the said case, petitioner had filed Crl. Misc. No.3786/2024 before the Court of FTSC-1, Addl. City Civil & Sessions Judge, -3- NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 Bengaluru, which was rejected on 06.06.2024. Therefore, petitioner is before this Court.
4. Learned Senior Counsel appearing for the petitioner submits that there are multiple matrimonial disputes pending before various courts between the petitioner and respondent no.2, who is the wife of the petitioner. Petitioner was given visitation rights to meet the victim girl who is his daughter during school vacation. The said order passed by the jurisdictional Court was unsuccessfully challenged by respondent no.2 in W.P.No.23969/2022. Since certain observations were made by this Court while disposing of W.P.No.23969/2022, petitioner had approached the Hon'ble Supreme Court, and the Hon'ble Supreme Court while disposing of the said petition, has held that observations made by the High Court while disposing of W.P.No.23969/2022 shall not influence the Trial Court in deciding the proceedings before it and the petitioner herein was also given liberty to file application before the Trial Court for modifying the order that was impugned in W.P.No.23969/2022. He submits that subsequently, IA Nos.28, 29 & 30 were filed by the petitioner before the Trial Court in G & WC No.288/2018 with a prayer to -4- NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 permit him to speak to the minor child over video call, to grant interim custody of the minor child on every week end, and also to modify the order dated 13.10.2022 passed on IA No.20 in G & WC No.288/2018. which was impugned in W.P.No.23969/2022. He submits that on the basis of false allegations made by respondent no.2, criminal case is now registered against him for the aforesaid offences and the same is initiated not only to harass and coerce him, but also to see that no favourable orders are passed on IA Nos.28, 29 & 30 by the jurisdictional Family Court.
5. Per contra, learned HCGP and the learned Counsel for respondent no.2 have opposed the petition.
6. Learned HCGP submits that the victim girl has made allegations against the petitioner in her statement recorded under Sections 161 & 164 of Cr.PC. He submits that the petitioner has not co-operated with the police for the purpose of investigation.
7. Learned Counsel for respondent no.2 submits that respondent no.2 came to know about the act committed by the petitioner in the year 2022 only after the victim girl informed -5- NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 her about the same on 01.04.2024 after she was taught about bad and good touch in her school. He submits that while disposing of W.P.No.23969/2022, this Court has taken note of the allegations made against the petitioner about he handing over the child to a stranger known as Vijay who is arrayed as accused no.2 in this case. The observations made by this Court while disposing of W.P.No.23969/2022 has not been expunged by the Hon'ble Supreme Court. He submits that in the event petitioner is enlarged on bail, he is likely to tamper with the prosecution witnesses. He also submits that having regard to the nature of allegations made, custodial interrogation of the petitioner is required.
8. The undisputed facts of the case are, respondent no.2 was earlier married to one Mohammed Iqbal. The said marriage was dissolved in the month of January 2002. From the first marriage, respondent no.2 has a daughter. The marriage of the petitioner with respondent no.2 was performed on 19.08.2005. From the said marriage, they have a girl child (victim) born on 14.01.2014. The relationship between the petitioner and respondent no.2 got strained subsequently, and thereafter, respondent no.2 started residing separately with her children. -6-
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9. Petitioner had filed G & WC No.288/2018 before the jurisdictional Court of Family Judge, seeking custody of his minor child. Petitioner has also filed M.C.No.5570/2018 before the jurisdictional Family Court with a prayer to dissolve his marriage with respondent no.2. Respondent no.2 had filed Crl. Misc. Petition No.65/2021 and Crl. Misc. Petition No.34/2023 against the petitioner under the provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, 'D.V.Act'). Petitioner had filed IA No.20 in G & WC No.288/2018 seeking interim custody of the minor child during school vacation. The said application was allowed by the Family Court on 13.10.2022. Respondent no.2 herein had unsuccessfully challenged the said order in W.P.No.23969/2022.
10. While disposing of W.P.No.23969/2022, certain observations were made touching the character of the petitioner, and therefore, petitioner had approached the Hon'ble Supreme Court in Spl. Leave to Appeal (C) No.15638/2023 and while disposing of the said petition, the Hon'ble Supreme Court has held that the observations made by the High Court in W.P.No.23969/2022 shall not influence the -7- NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 Trial Court in deciding the proceedings before it and the order passed on IA No.20 by the Trial Court was directed to be continued till the pendency of the proceedings in G & WC No.288/2018 before the Family Court or till the Family Court passes any orders on the applications that may be filed by either of the parties seeking modification of the said order. Thereafter, the petitioner had filed IA No.30 to modify the order dated 13.10.2022 passed on IA No.20 in G & WC No.288/2018 and also had filed IA Nos.28 & 29 with a prayer to permit him to speak to the minor child over video call, and to grant interim custody of the minor child on every week end, respectively. The said applications were filed on 06.03.2024. Objections were filed to the said applications by respondent no.2 on 08.04.2024.
11. Though the first information in Crime No.103/2024 was submitted by respondent no.2 before the police on 02.04.2024 itself, in her objections filed to IA Nos.28, 29 & 30, she had not mentioned anything about she filing criminal case against the petitioner or about the victim girl informing her about the alleged act committed by the petitioner in the year 2022. -8-
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12. Respondent no.2 has made an allegation in the first information that she was informed by her minor daughter on 01.04.2024 that petitioner herein during the period from 30.04.2022 to 27.05.2022, when the victim was in his interim custody as per the orders of the Family Court, had given bath to his minor daughter and had touched and pinched her inappropriately.
13. The material on record would go to show that the annual examination of the victim girl was held from 18.03.2024 to 26.03.2024, and thereafter, the school was closed for summer holidays. In the first information, it is alleged that on 01.04.2024 when the victim girl had gone to the school, she was taught about good and bad touch in her school, and thereafter, she came and informed the first informant about the alleged act committed by the petitioner in the year 2022. Therefore, a doubt arises with regard to the allegations found in the first information, more so for the reason that the first information was submitted after the petitioner had filed applications - IA Nos.28, 29 & 30 before the Family Court in G & WC.No.288/2018.
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14. Offences punishable under the POCSO Act are of serious in nature and under Section 29 of the POCSO Act, there is a presumption available to the prosecution. Petitioner in furtherance of his contention that the allegations made against him are false and motivated, has placed certain material before this Court in support of his contentions which at this stage, prima facie rebuts the available presumption. At the stage of considering the bail application, court is not required to hold a mini trial. Presumption in criminal law can be raised only when certain foundational facts are clearly established by the prosecution.
15. The Hon'ble Supreme Court in the case of SUBHASH KASINATH MAHAJAN (DR.) VS STATE OF MAHARASHTRA & ANOTHER - (2018)6 SCC 454, while considering the issue of reverse burden vis-à-vis the human rights of an accused, in paragraph 65, has observed as under:
"65. Presumption of innocence is a human right. No doubt, placing of burden of proof on the accused in certain circumstances may be permissible but there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or court. In Noor Aga v. State of
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NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 Punjab [Noor Aga v. State of Punjab, (2008) 16 SCC 417 it was observed:
"33. Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. It, having regard to the extent thereof, would not militate against other statutory provisions (which, of course, must be read in the light of the constitutional guarantees as adumbrated in Articles 20 and 21 of the Constitution of India).
XXX XXX XXX
35. A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld.
XXX XXX XXX
43. The issue of reverse burden vis-à-vis the human rights regime must also be noticed. The approach of the
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NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 common law is that it is the duty of the prosecution to prove a person guilty. Indisputably, this common law principle was subject to parliamentary legislation to the contrary. The concern now shown worldwide is that Parliaments had frequently been making inroads on the basic presumption of innocence. Unfortunately, unlike other countries no systematic study has been made in India as to how many offences are triable in the court where the legal burden is on the accused. In the United Kingdom it is stated that about 40% of the offences triable in the Crown Court appear to violate the presumption. (See "The Presumption of Innocence in English Criminal Law" [The Presumption of Innocence in English Criminal Law, 1996 Crim L Rev 306 at p. 309] .)
44. In Article 11(1) of the Universal Declaration of Human Rights (1948) it is stated:
"Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law...."
Similar provisions have been made in Article 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and Article 14.2 of the International Covenant on Civil and Political Rights (1966).
XXX XXX XXX
47. We may notice that Sachs, J. in State v. Coetzee [State v. Coetzee, 1997 SCC OnLine ZACC 2 : (1997) 2
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NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 LRC 593] explained the significance of the presumption of innocence in the following terms:
"There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book. ... Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption ... the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases.'
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NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 In view of the above, an accused is certainly entitled to show to the court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. The law has to be interpreted accordingly."
16. In the case of JASEER ABOOBACKER VS STATE OF KERALA - ILR 2019 KERALA 362, the High Court of Kerala in almost similar circumstances, wherein FIR was registered against the father for the offences punishable under Sections 9 & 10 of the POCSO Act, while granting anticipatory bail to the accused, in paragraphs 9 & 10, has observed as under:
"9. As held in Dr. Subhash Kasinath Mahajan (supra), an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was falsely motivated. If there are materials which prima facie show that the complaint is motivated for extraneous reasons, there is no reason why the court should not protect the person, who has been wrongfully accused from being arrested and detained.
10. It is evident from the prosecution records that the parents of the child are well educated and well-
placed in life. Their only son is of tender age. It appears that the child has been made a weapon of choice by one of the parent to put up a fight against the other parent.
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NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 There cannot be any doubt that their unusual fight and the levelling of very grave allegations of sexual abuse against the father would have a huge emotional toll on the psyche of the minor child. It is appalling to note that the parents, in their determination to fight with each other, have intentionally or otherwise failed to protect their child from the damaging emotional consequences that would be caused to him."
17. Having regard to the material available on record and taking into consideration the timing of the first information lodged by respondent no.2, it cannot be said that there is absolutely no merit in the contentions put forward on behalf of the petitioner. In their quest to fight the legal battle concerning their matrimonial dispute, the parents are losing sight of the damage caused to their minor children either directly or indirectly. The young mind of the minor child is filled with animosity as a result of continuous tutoring by the parent, and the child who is totally unaware of the consequences is being used as a tool to pursue their egoist fight. The Special Courts trying POCSO cases, are therefore, required to be vigilant whilst considering allegations of sexual abuse of the minor child by a parent, more so where such allegation is made by the parent who has been fighting matrimonial cases and child
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NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 custody cases before the courts. It is rather unfortunate that more and more cases of this nature are registered where the parents are educated people. The consequences of prosecuting a person for the offences under the POCSO Act are very serious and apart from providing for stringent punishment, the person who is prosecuted comes down in the eyes of the society, family members, relatives, friends, and virtually he is shunned from the society. Therefore, Section 22 of the POCSO Act has to be strictly invoked whenever courts come across false cases registered against any person under the provisions of the POCSO Act.
18. The High Court of Kerala in the case of XXX Vs STATE OF KERALA - 2023(2) KHC 339, in paragraph 19 has observed as under:
"19. In the aforesaid decision, this Court highlighted the growing tendency of foisting false cases against the biological father alleging sexual abuse misusing the provisions of the POCSO Act. This Court alerted the Family Courts by emphasizing the necessity to adopt a conscious approach while dealing with the allegation of offences under the POCSO Act in cases where the custody of the child is under serious litigation. The courts, while dealing with
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NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 the applications for bail, involving the offences of the POCSO Act, allegedly committed by the accused against their children, should take a very cautious approach, particularly when the custody of the child is under serious litigation between the parents. In such cases, when the materials placed before the court evoke a reasonable suspicion as to the veracity of the allegations, the courts should not hesitate to invoke the powers under section 438 of the Cr.P.C. What is at stake is someone's personal liberty, integrity, dignity and sometimes, the life itself. The power under section 438 is an important tool for the court to protect the personal liberty of the persons, which is one of the fundamental rights guaranteed under the Constitution of India."
19. Petitioner is a B.Tech Graduate working in a reputable organization known as 'M/s. Northern Operating Services' and he is fighting the legal battle with his wife for several years before different courts and the interim custody of the child was given to him right from the year 2022 onwards. But, there was no complaint whatsoever at any stage against him and it is only when applications seeking modification of the earlier order of custody were filed and also seeking interim relief to speak to the minor child on video call and interim custody of minor child
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NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 on every week end was sought, the present criminal case has been registered. The maximum punishment for the alleged offences is imprisonment for a period of five years. Considering the nature of allegations made in the first information, I am of the view that custodial interrogation of the petitioner may not be necessary. Petitioner has undertaken to co-operate with the police for the purpose of investigation. Under the circumstances, I am of the opinion that the prayer made by the petitioner in this petition needs to be answered affirmatively. Accordingly, the following order:
20. The petition is allowed. The respondent - Police or any other police in the State of Karnataka are directed to release the petitioner in the event of his arrest in Crime No.103/2024 registered by Ashoknagar Police Station, Bengaluru City, for the offences punishable under Sections 7 & 8 of the Protection of Children From Sexual Offences Act, 2012 and Section 506 IPC, subject to the following conditions:
1. The Petitioner shall appear before the Investigating Officer within seven days from the date of receipt of the copy of this order and shall execute a personal bond for a sum of
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NC: 2024:KHC:30519 CRL.P No. 5930 of 2024 Rs.1,00,000/- with two sureties for the likesum to the satisfaction of the investigating officer.
2. Petitioner shall regularly appear before the Trial Court without fail unless exempted by the Trial Court for valid reasons.
3. Petitioner shall not directly or indirectly tamper with the prosecution witness and he shall co-operate with the police for investigation and appear before them whenever called upon.
Sd/-
(S VISHWAJITH SHETTY) JUDGE KK