Karnataka High Court
State Of Karnataka vs Nagaraja on 23 February, 2016
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23rd DAY OF FEBRUARY, 2016
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
CRIMINAL PETITION NO.8267/2015
BETWEEN:
STATE OF KARNATAKA
BY YAGATI POLICE REPRESENTED BY
STATE PUBLIC PROSECUTOR,
BENGALURU-577 140.
... PETITIONER
(By Sri: B.J.ESHWARAPPA, HCGP)
AND
NAGARAJA
S/O ANANDAPPA,
CHIKKABASURU VILLAGE,
KADUR TALUK,
CHIKKAMAGALURU-577 548.
... RESPONDENT
(By Sri: PRAKASH M H, ADV.)
CRL.P FILED U/S.439(2) CR.P.C BY THE STATE FOR
THE PETITIONER PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO (1)SET ASIDE THE ORDER DATED
10.06.2015 PASSED IN SPL.C(PCSOA) NO. 17/2015 BY THE
I ADDL. SESSIONS AND SPL. JUDGE,
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CHICKKAMAGALURU, GRANTING BAIL TO THE
RESPONDENT/ACCUSED FOR THE OFFENCE UNDER
SECTIONS 363,114,366A, 376 R/W 34 OF IPC AND
SEC.4,6,17 OF POCSO ACT AND CANCEL THE SAID
ORDER OF BAIL. DIRECT THAT THE ACCUSED BE
ARRESTED AND COMMITTED TO CUSTODY.
THIS PETITION HAVING BEEN HEARD AND
RESERVED ON 17.02.2016, AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY,
A.V.CHANDRASHEKARA, J., MADE THE FOLLOWING:
ORDER ON THE BAIL APPLICATION FILED
UNDER SECTION 439(2), Cr.P.C.
The present petition is filed by the State
represented by Yagati police station, Chikkamagalur
District, requesting the court to cancel bail granted to
the respondent-accused on 10.6.2015 in SPECIAL CASE
(POCSO) NO.17/2015 by the I Additional Sessions and
Special Judge at Chikkamagalur. Respondent will be
referred to as accused in view of his ranking shown in
the case filed by Yagati police.
2. The facts leading to the filing of the application
under Section 439(2), Cr.P.C. are as follows:
3
a) A case is registered against the accused in
Crime No.1/15 by the respondent-Yagati police and
after concluding investigation, charge sheet is filed for
the offences punishable under Sections 363, 366, 366A,
376, 114 read with Section 34, I.P.C. and Sections 4, 6
and 17 of the Prevention of Children from Sexual
Offences Act, 2012, (hereinafter referred to as POCSO
Act, for brevity). Allegation made against the accused is
that he had assured CW-2, a girl aged about 17 years of
marrying her, and on 26.12.2014 at 7 p.m., forcibly
took her in an autorickshaw bearing No.KA-18-B-5650
belonging to the 2nd accused towards Chowdapur village
and persuaded her to cooperate with him, and raped
her and later on sent her to the house of CW-20, where
she stayed on the night of 26.12.2014.
b) On the next day, i.e. 27.12.2014, the accused
no.1 herein took her in the same autorickshaw and
brought her towards Kadur and went to Birur, and at
10 p.m., dropped her in Chikabusur village. At that
4
time, the parents of CW-2 asked her as to where she
had gone. They scolded her for having left the house
without telling them. Therefore, she had consumed
some pills and became unwell. Hence, she was
immediately shifted to Kadur Government Hospital,
where she was treated.
c) It is alleged that accused nos.1 and 2 somehow
persuaded the young girl of 17 years and the first
accused had forcibly raped her. The allegation against
the 2nd accused is that he had instigated 1st accused
and helped him to rape the minor girl.
d) An application had been filed seeking regular
bail before the special court at Chikmagalur during the
pendency of investigation which was dismissed.
Admittedly, the accused was arrested on 17.01.2015
and enlarged on bail on 10.06.2015. Since the accused
was in judicial custody for nearly 6 months and charge
sheet had been filed and the 2nd accused being already
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released on bail, and the 1st accused being the only
bread earner of the family, the learned judge has chosen
to grant bail. The reasons so assigned by the learned
judge are found at paragraph 9 at the impugned order.
3. Several grounds have been urged in the present
petition filed under Section 439(2), Cr.P.C. It is
contended that the learned judge has committed a
serious error in granting bail to the accused, though the
same judge had rejected his bail application on an
earlier occasion during the pendency of investigation. It
is argued that the learned judge has not at all
considered the statement of the victim girl who had
narrated about the incident, in her statement recorded
by the magistrate under Section 164, Cr.P.C. The
learned judge is stated to have ignored the fact that the
victim girl was forcibly taken in an autorickshaw by
accused nos.1 and 2 and first accused had assaulted
her sexually. The maximum punishment contemplated
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could be imprisonment for life. The medical opinion
given by the doctor is also ignored while granting bail, is
the contention.
4. Heard the learned HCGP representing the state
and the learned counsel for the accused.
5. After going through the records and hearing both
side, the following point arises for the consideration of
this court:-
Whether it is just and reasonable to cancel
the bail granted to the accused at this stage?
REASONS
6. What are the factors to be kept in mind while
considering a bail application relating to a heinous
offense have been indicated by the Hon'ble Supreme
Court in the case of PRASANTA KUMAR SARKAR .v.
ASHIS CHATERJEE AND ANOTHER ([2010] 14 SCC
496). Relying on the earlier decisions of the apex court
in the case of STATE OF U.P. .v. AMARMANI
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TRIPATHI ((2005) 8 SCC 21), RAM GOVIND
UPADHYAY .v. SUDARSHAN SINGH ((2002) 3 SCC
598), the Hon'ble apex court has indicated the following
factors to be borne in mind while considering bail:
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
accusation;
iii) severity of the punishment in the
event of conviction;
iv) danger of the accused
absconding or fleeing, if released on
bail;
v) character, behavior, means,
position and standing of the accused;
vi) likelihood of the offence being
repeated;
vii) reasonable apprehension of the
witnesses being influenced; and
viii) danger, of course, of justice being thwarted
by grant of bail.
7. Of course, as rightly pointed out by the Hon'ble
apex court in the case of [2009] 14 SCC 286 between
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MASROOR .v. STATE OF U.P. & ANOTHER, bail
should not be mechanically granted without adverting
to relevant considerations. If bail is granted without
such considerations, it would suffer from the vice of
non-application of mind and therefore the order
becomes illegal. But at the same time in the said case,
caution is given to the courts while granting or refusing
bail, not to make elaborate assessment of evidence and
touching the merits of the case since it may prejudice
the accused. But it is made clear that there is a need to
indicate in such order the reasons for prima facie
concluding why bail is granted, particularly where the
accused is charged of having committed a serious
offence. Paragraph 12 of the judgment in the case of
MASROOR is relevant and it is extracted below:
'12. Normally this court does not interfere
with the order of the High Court relating
to grant or rejection of bail but in the
instant case, having carefully gone
through the impugned order, we are
constrained to observe that the High Court
has completely ignored the basic
principles which are to be kept in view
9
while dealing with an application filed
under Section 439 of the Code for grant of
bail to the second respondent, warranting
interference by this court.'
8. There is no second opinion about the seriousness
of the allegations made against the accused in the
present case by the victim girl aged 17 years. Records
do disclose that her statement came to be recorded by
the magistrate, Chikkamagalur, on 03.01.2015. The
case diary had been made available by the prosecution
to the learned special judge when the matter was
argued relating to grant of bail. The statement of the
victim under Section 164, Cr.P.C. is a vital piece of
material and the same cannot be ignored lightly while
considering the bail application. Serious allegation is
made against both the accused in taking her forcibly in
an autorickshaw belonging to the 2nd accused to a place
near the tank of Chowdapur and subsequently to the
house of 2nd accused, where she was raped by the first
accused. It is also forthcoming that she was taken from
Chowdapur to Kadur and on the next day at 10 p.m.,
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she was dropped in Kadur. She came to know that a
complaint had already been lodged. She has specifically
stated that both the accused threatened her parents not
to lodge complaint since the first accused would marry
her. Being afraid of the threat held out to her, she took
some pills and became unwell and was immediately
shifted to Kadur Government Hospital. In fact, she
wanted stringent punishment to be imposed on both of
them.
9. The learned judge should have made at least some
reference about the materials placed on record. He has
not done so, and this is evident from the reasons
assigned in the impugned order at paragraph 9. For the
purpose of clarity, paragraph 9 is extracted below:
'9. The accused was arrested on 17.01.2015
and he was remanded to judicial custody. He
has been in judicial custody from the date of his
arrest. The bail application filed by the 1st
accused before filing of the charge sheet has
been rejected. Now after filing of the charge
sheet accused No.1 has filed this bail
application. The investigation relating to
accused No.1 is already over. Accused No.2 has
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been released on bail. The facts that accused
No.1 is the only bread earning member of the
family, he has deep roots in the society and he
hails from a respectable family are not disputed
by the prosecution. I am satisfied that the
presence of accused No.1 can be secured easily
at the time of trial. The apprehension of the
prosecution that if accused No.1 is released on
bail, he may tamper with the prosecution
witnesses and run away from the jurisdiction of
the court can be set at rest by imposing
reasonable conditions. Hence for the above
reasons, Point No.1 is answered in the
affirmative.'
It is forthcoming that the accused had already filed an
application seeking bail earlier, which was rejected
when the investigation was still in progress. The learned
judge has come to the conclusion that he could be
released on bail as the investigation was over and he
was in judicial custody for 6 months. The parity of
granting bail to 2nd accused could not have been taken
into consideration since there was no allegation that the
2nd accused too had sexually assaulted the victim girl.
10. In the case of KALYAN CHANDRA SARKAR .v.
RAJESH RAJAN ((2004) 7 SCC 528), the Hon'ble apex
court has held that whenever an earlier bail application
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is rejected, there is further onus on the court to
consider the further application for the grant of bail by
noticing the grounds on which the earlier bail
applications have been rejected. It is made clear that
after such considerations only, if the court is of the
opinion that bail has to be granted, then the said court
will have to give specific reasons as to why in spite of
earlier rejection, the application for bail should be
granted. The law laid down in the said case is found in
paragraph 12 in the case of KALYAN CHANDRA
SARKAR (supra) which is extracted below:
'12. In regard to cases where earlier bail
applications have been rejected there is a further
onus on the court to consider the subsequent
application for grant of bail by noticing the
grounds on which earlier bail applications have
rejected and after such consideration if the court
is of the opinion that bail has to be granted then
the said court will have to give specific reasons
why in spite of such earlier rejection the
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subsequent application for bail should be
granted.'
11. Learned counsel for the accused has relied on a
decision of othe Hon'ble apex court in the case of
DOLAT RAM (supra) in which it is reiterated that
rejection of bail in a non-bailable case at the initial stage
and cancellation of bail already granted, have to be
considered and dealt with on different basis.' It is
further held that very cogent and overwhelming
circumstances are necessary for directing the
cancellation of bail already granted. The said decision
has been followed by the Hon'ble apex court in two
subsequent decisions by a Bench of three Hon'ble
Judges in the case of SUBHENDU MISHRA .v. SUBRAT
KUMAR MISHRA AND ANOTHER (AIR 1999 SC 3026)
and another Bench of three Judges in the case of
SAMARENDRA NATH BHATTACHARJEE .v. STATE
OF WEST BENGAL AND ANOTHER (AIR 2004 SC
4207). The law laid down in the case of DOLAT RAM is
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found in paragraph 4 at page 350 and it is reproduced
below:
'4. Rejection of bail in a non-bailable case at an
initial stage and cancellation of bail so granted
have to be considered and dealt with on a
different basis. Very cogent and overwhelming
circumstances are necessary for an order
directing the cancellation of bail, already
granted. Generally speaking, the grounds for
cancellation of bail, broadly (illustrative and not
exhaustive) are: interference or attempt to
interfere with the due course of administration
of justice, or evasion or attempt to evade the due
course of justice or abuse of the concession
granted to the accused in any manner. The
satisfaction of the court, on the basis of material
placed on the record of the possibility of the
accused absconding is yet another reason
justifying cancellation of bail. However, bail
once granted should not be granted in a
mechanical manner without considering whether
any supervening circumstances have rendered it
no longer conducive to a fair trial to allow the
accused to retain his freedom by enjoying the
concession of bail during the trial. These
principles, it appears, were lost of by the High
15
Court when it decided to cancel the bail, already
granted. The High Court, it appears to us,
overlooked the distinction of the factors relevant
for rejecting bail in a non-bailable case in the
first instance, and the cancellation of bail
already granted.'
12. It is true that the accused in the present case
has been enjoying the benefit of bail granted to him by
the learned special judge from 10.6.2015 and the
present application for cancellation of bail came to be
filed by the prosecution only in the month of December
2015. But the learned judge has not at all assigned
reasons as to whether there were any altered
circumstances to take a different view from that of the
one already taken earlier while rejecting the bail
application when investigation was still in progress.
Whether the materials produced along with the charge
sheet were not sufficient to make out a prima facie case,
is not forthcoming. The reasons like investigation was
over and the accused was in judicial custody for 6
16
months are 'not cogent reasons' to grant bail
subsequently. Apart from this, the materials placed on
record inclusive of the statement of the victim girl
recorded under Section 164, Cr.P.C. have not at all been
taken into consideration in any manner.
13. Though elaborate discussion on the material
placed on record is not required, at least there must be
some indication of having considered all the relevant
materials to grant bail. One cannot forget that the case
on hand relates to an offence committed on a girl aged
17 years and she will be a 'child' for all practical
purposes. The provisions of POCSO Act, 2012, are
stringent and special courts have been established to
deal with such offences against children, whether girls
or boys. Apart from this, presumption available under
Section 29 of POCSO Act will have to be raised when the
charge sheet is filed. The learned judge has not kept in
17
mind the gravity of the offence, nature of allegation and
the punishment contemplated therefor.
14. It is true that the prosecution has not made any
allegation against the accused that he has violated the
bail conditions imposed on him while granting bail on
10.6.2015. Suffice to state that the judge has not kept
in mind the important factors to be considered while
granting or rejecting bail in a case of this nature. The
respondent herein cannot be considered as similarly
placed with the 2nd accused who is already enlarged on
bail. On the other hand, the learned judge should have
taken up the case for trial at the earliest since he was in
judicial custody. Granting bail on the ground of charge
sheet being filed and accused being in judicial custody
for 6 months in a case of this nature are wholly
incorrect and improper.
15. Taking into consideration all these factors and no
cogent and valid reasons being assigned to grant bail to
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the accused, though his earlier bail application was
rejected, this court is of the opinion that bail granted to
the respondent-1st accused is liable to be cancelled. In
the light of the facts of the case and special court being
established to take up cases of this nature, directing the
concerned court to dispose of the matter at the earliest
and imposing few conditions on the accused would meet
the ends of justice.
16. In the result, the following order is passed:
ORDER
The petition filed under Section 439(2), Cr.P.C. by the State is allowed. Bail granted to the respondent-1st accused by the learned I Additional Sessions and Special Judge Chikkamagalur, in Special Case (POCSO) No. 17/2015 stands cancelled.
The respondent shall surrender before the court without undue delay and the learned judge 19 to frame appropriate charges and dispose of the case within two months from the date of surrender, without fail.
Registry to send a copy of this order to the concerned court for reference and compliance, at the earliest.
Sd/-
JUDGE vgh*