Karnataka High Court
Smt Sowmya M vs Bharath Kumar Alias B K Gudde Bharath on 25 April, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION No.13600/2023
BETWEEN:
SMT. SOWMYA,
W/O BHARATH KUMAR @
GUDDE BHARATH,
AGED ABOUT 33 YEARS,
RESIDING AT NO.800, 9TH MAIN,
3RD STAGE, BASAVESHWARANAGARA,
BENGALURU-560 079.
...PETITIONER
(BY SRI. SHIVAKUMAR .U, ADVOCATE)
AND
1. BHARATH KUMAR ALIAS B.K. GUDDE BHARATH,
S/O NAGARAJ .C,
AGED ABOUT 23 YEARS,
RESIDING AT NO.800, 9TH MAIN,
3RD STAGE, BASAVESHWARANAGARA,
BENGALURU-560 079,
ALSO RESIDENT OF NO.6, 1ST MAIN, 3RD CROSS,
SANJAYANAGAR, NYT LAYOUT, MYSORE ROAD,
BENGALURU-560 026.
2. THE STATE OF KARNATAKA BY
BASAVESHWARANAGARA POLICE STATION,
BASAVESHWARANAGARA,
BENGALURU-560 079,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
-2-
HIGH COURT OF KARNATAKA,
BENGALURU-560 001.
...RESPONDENTS
(BY SRI. RAVI KUMAR .K.M., ADVOCATE FOR R1;
SRI. B. LAKSHMANA, HCGP FOR R2)
THIS CRL.P IS FILED UNDER SECTION 439(2) CR.P.C
PRAYING FOR CANCELLATION OF THE ORDER DATED
01.12.2023 PASSED BY THE ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, FTSC-V, BENGALURU IN
CRL.MISC.NO.10853/2023 ARISING OUT OF
SPL.C.C.NO.2147/2023 AND FURTHER PRAYED TO ORDER FOR
ARREST OF 1ST RESPONDENT BY THE 2ND RESPONDENT AND
COMMIT HIM TO CUSTODY.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 24.04.2024, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The petitioner/First Informant has filed this petition under Section 439(2) of Cr.P.C. for cancellation of bail granted to accused/Respondent No.1 herein by the Additional City Civil and Sessions Judge, FTSC-V, Bengaluru, vide order dated 01.12.2023 in Crl. Misc. No.10853/2023 (arising out of Cr.No.248/2023 & pending in Spl.C. C. No.2147/2023).
2. The brief allegations of the prosecution are that, the petitioner/First Informant herein was got married to one Dayanand on 30.05.2005 and out of their wed-lock -3- she got 2 daughters and 1 son. Due to differences of opinion, she left her husband about 9 years back. Further, it is alleged that, the 1st daughter of the complainant after completion of 10th Standard is studying in a Polytechnic College at Mangaluru and other two children are in Hostel. It is also alleged that, the petitioner/First Informant came in contact with accused/Respondent No.1-Bharath Kumar herein through instagram and later on they acquainted with each other and they both married on 02.12.2022 and they started residing together. It is further alleged that, the 1st daughter of the petitioner/First Informant is the victim and on 01.04.2023, the victim came to the house under depressed state of mind and on 01.06.2023, when the First Informant enquired the victim, she disclosed that the Respondent No.1/accused has forcibly kissed her and he touched her private parts and taken her nude photos and sexually assaulted her from 02.04.2021 to 31.05.2023. On 03.06.2023, the petitioner/First Informant has enquired with Respondent No.1/accused in this regard and he threatened her and as such, she lodged a complaint on 23.07.2023. On the basis of the complaint, -4- the FIR was registered in Cr. No.248/2023 initially for the offences punishable under Sections 376 and 506 of IPC. But, later on the provisions of Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short) were also incorporated. The accused/Respondent No.1 was arrested on 28.07.2023 and he was remanded to custody. Hence, he has approached the learned City Civil and Sessions Judge, Fast Tract Special Court-V, Bengaluru in Crl.Misc. No.10853/2023 seeking regular bail and the learned Special Judge considering the fact that the investigation is concluded, has admitted the accused/Respondent No.1 on bail by order dated 01.12.2023. Being aggrieved by this order, the petitioner/de facto complainant has filed this petition seeking for cancellation of bail granted to the accused/Respondent No.1 herein.
3. Heard the learned counsel for the petitioner/First Informant and the learned counsel for accused/Respondent No.1 and the learned HCGP for Respondent No.2-State. Perused the records. -5-
4. Learned counsel for the petitioner/First Informant would contend that the order passed by the learned Special Judge granting bail to accused/Respondent No.1 herein is unsustainable as accused/Respondent No.1 is a habitual offender being history-sheeter involved in number of case. But, ignoring all these aspects in mechanical way, without assigning any reasons, the bail petition of the accused/Respondent No.1 was allowed by granting bail. He would also contend that Condition No.6 in the bail order discloses that, the accused should not involve in any other criminal activities. But, subsequently, number of cases were registered against him and hence, there is violation of bail condition and hence, the order of bail needs to be cancelled. The learned counsel would also assert that, during the period of custody itself, the accused/Respondent No.1 used to make threatening calls from jail, but that aspect was not considered and now also he is threatening the First Informant, and considering his criminal history, the bail order requires to be cancelled.
-6-
5. The learned HCGP would support the case of the petitioner/First Informant. But, interestingly, the Investigating Officer has not taken any steps in this regard, though some complaints were lodged before him.
6. The learned counsel for accused/Respondent No.1 would contend that, the subsequent complaints were filed by the petitioner/First Informant herself and they were only with an intention to see that the accused/Respondent No.1 should not get any benefit of bail. He would also assert that, the matter is already committed to the Sessions/Special Judge and the petitioner/First Informant herself is involved in chit funds cheating cases, wherein she was in custody and now she is making false allegations against the accused/Respondent No.1. He would also assert that, though accused/ Respondent No.1 was all along present during the course of trial, it is the petitioner/First Informant, who has regularly sought adjournment of the matter without entering into the witness box and she is interested in protracting the proceedings without giving evidence. -7- Hence, he would contend that, considering the conduct of the petitioner/First Informant, no specific grounds are forthcoming so as to cancel the bail and sought for dismissal of the petition.
7. Having heard the arguments and perusing the records, now the following point would arise for my consideration:-
"Whether at this juncture, the
petitioner/First Informant has made-out any
grounds for cancellation of bail granted to the accused/Respondent No.1, by the trial Court?"
8. At the out set, it is important to note here that the petitioner/First Informant and Respondent No.1/accused are claims to have married. Admittedly, the petitioner/First Informant herein is a married woman and earlier she got married to one Dayanand long back and she got 02 daughters including the victim and 01 son, out of their wed-lock. The allegations itself disclose that, she deserted her husband about 09 years back and later on she came in contact with the accused/Respondent No.1 -8- herein through instagram and they developed relationship with each other and later on got married on 02.12.2022 in her house. At the outset the petitioner/First Informant herself is a married woman having 03 children and she is not a divorcee. Under such circumstances, she again marrying the accused/Respondent No.1 herein does not have any relevancy without dissolving earlier marriage and at most they had extra-marital relationship, but it cannot be termed as marriage. In this regard, the conduct of the petitioner/First Informant herein also creates serious doubt regarding her behavior.
9. The other allegation is that, accused/Respondent No.1 herein used to call the First Informant when he was in custody in Central Jail at Parappana Agrahara. In this regard, the call details were also produced. But, on perusal of the call details, it is evident that those calls were generated from Parappana Agrahara area with a particular site number and it is not the case of the prosecution that the said site number is situated within jail premises. Though the call details -9- specify that the phone calls are originated from site Nos.69 and 57/2 of Parappana Agrahara Area, but the Jail Premises is not in entire area of Parappana Agrahara and the Central Jail is situated only in some part of Parappana Agrahara. Hence, only on the basis of assertions, at this juncture, it cannot be presumed that the phone calls were originated from the Jail Premises. Further the submission of the Investigating Officer discloses that, they are still investigating the matter in this regard. The records further disclose that the phone numbers, which were alleged to have been used, were belonging to different persons and either they were alleged to have been lost or other person has secured it, who is now in custody. The Investigating Officer is required to interrogate the said person as to how the call was generated from his mobile which is in his possession and that may require some time. But, at this juncture there is no material evidence regarding generation of calls from the Central Prison at Parappana Agrahara.
- 10 -
10. Further, all along it is alleged that the accused/Respondent No.1 has committed sexual assault on the victim from 02.04.2021 to 31.05.2023. But, interestingly, the victim has suffered sexual assault for nearly two years and for the first time it was brought to the notice of the First Informant on 31.05.2023 and in this regard, she discussed the matter with accused/Respondent No.1 herein on 03.06.2023, wherein it was alleged that she was threatened. But, interestingly, the complaint was lodged thereafter on 23.07.2023 at about 9.00 p.m, and there is delay of nearly more than 07 weeks. The medical evidence also discloses that the hymen perineum is intact. The allegations of the prosecution further discloses that the mobile phone which is used for taking nude photographs of the victim was alleged to have been found missing or destroyed. The Investigating Officer is required to investigate in this regard. But, the final report itself discloses that the mobile phone by which photos were taken, was alleged to have been destroyed and now it is not available. Hence, the question of now using the photographs for blackmailing victim does not arise at all.
- 11 -
11. The allegations further disclose that the petitioner/First Informant herein is also involved in two chit fund cases. The learned counsel for the petitioner/First Informant produced a copy of the stay order granted for one of the cases, but that was in the year 2022 and what is the fate of the crime as on today is not disclosed. However, the conduct of the petitioner discloses that, she had developed intimacy with accused/Respondent No.1 herein and later on it appears that certain other transactions might have been taken place and both were involved in criminal cases. No doubt, Respondent No.1/accused appears to be involved in number of cases, but that itself is not a ground to deny bail in this case, at this juncture, in absence of other material evidence. Further, an allegation was made regarding violation of bail condition by Respondent No.1 by involving in other criminal cases. But, these other criminal cases were filed by the petitioner/First Informant herein and the authenticity of those cases are required to be investigated.
- 12 -
12. It is submitted by the learned counsel for Respondent No.1 that, other crimes were intentionally lodged by the petitioner/First Informant in order to deny bail to Respondent No.1/accused and this possibility cannot be ruled-out, considering the history of both the petitioner/First Informant and the accused/Respondent No.1 herein and their relationship.
13. The records also disclose that the matter is set down for trial and the petitioner/First Informant herein has not given any evidence and went on seeking adjournments regularly. If she was threatened so as to not to give evidence, she would have complained the same before the concerned Special Court when for first time she was summoned, but that was not forthcoming. Hence, considering the conduct of both the parties and also considering the fact that the discretion is already exercised by the Special Judge, no good grounds are forthcoming for cancellation of bail. Though the Special Judge has not given any cogent reasons, but certain observations regarding delay and silence on the part of the First
- 13 -
Informant, though she was residing with Respondent No.1/accused, speak lot of different stories as they had extra-marital relationship with each other.
14. Considering the above facts and circumstances, at this juncture, no grounds are forthcoming for cancellation of bail. However, the Investigating Officer, who has submitted a detailed interim report, has sought further time to investigate the allegations made in this case. If the Investigating Officer is able to secure the material evidence regarding attempt to tamper the prosecution witnesses, then he can move the Court, but merely for formality sake, such application cannot be entertained.
15. Looking to the above facts and circumstances, the point under consideration is answered in the negative and as such, I proceed to pass the following:
ORDER The petition is dismissed.
However, after investigation, if the
Investigating Officer is able to collect any
- 14 -
material evidence regarding tampering the
prosecution evidence including tracing the source of phone calls, he is at liberty to move the Court for cancellation of bail, granted to the accused/Respondent No.1 herein, by he learned Special Judge.
Sd/-
JUDGE KGR*