Karnataka High Court
Kaviyarasu vs State Of Karnataka on 11 May, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MAY, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL PETITION No.2222/2020
BETWEEN:
KAVIYARASU
S/O ADIKESHAVAN
AGED ABOUT 21 YEARS
RESIDING AT NO.7
BHAJANA KOVIL STREET,
THALIKAL VILLAGE AND POST,
NAMILI TALUK, VELLUR DISTRICT
TAMIL NADU -631051 ..PETITIONER
(BY SRI ISMAIL MUNEEB MUSBA, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY CEN CRIME POLICE STATION
KOLAR GOLD FIELDS
HIGH COURT BUILDING
HIGH COURT
BANGALORE ..RESPONDENT
(BY SRI P THEJESH, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C. BY THE ADVOCATE FOR THE PETITIONER
PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CRIME
No.02/2020 REGISTERED BY KGF CEN CRIME POLICE
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STATION, KGF., FOR THE OFFENCES PUNISHABLE UNDER
SECTION 67B OF INFORMATION TECHNOLOGY ACT AND
SECTION 14 AND 15 OF POCSO ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT
BENGALURU MADE THE FOLLOWING:
ORDER
This matter is taken up through Video Conference today.
2. Learned counsel Sri.Ismail Muneeb Musba for petitioner and Sri.P.Thejesh, learned HCGP for respondent are present.
3. The petition is filed under Section 439 of Cr.P.C. wherein the petitioner seeks grant of bail in Crime No.2/2020 for the offence punishable under section 67B of the Information Technology Act, 2000 and Sections 14 and 15 of POCSO Act, of the respondent Police Station.
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4. The petitioner is stated to be in Judicial Custody since 30.01.2020.
5. The date of complaint is 27.01.2020. He was arrested and remanded to judicial custody on 30.01.2020.
6. Previously, the petitioner had made application before the learned II Additional District and Sessions Judge, Kolar in Cr.No.2/2020 under Section 439 of Cr.P.C. that came to be dismissed on 02.03.2020. Hence, this petition.
7. Copy of the petition is served on learned HCGP for respondent.
8. Heard.
9. The substance of the complaint as could be seen is that complainant is one Muralidhar R.K., S/o M.S.Radhakrishna, residing at C/o Subramani, 4 Tahsildar, 4th Cross, Swarnanagar, Robertsonpet, KGF. It is stated that he is running cloth business at M.G.Market, Robertsonpet and has a son aged 15 years named Chethan Ganesh and Latavardini studying in 9th standard at BVN School. Complainant had accommodated Latavardini with mobile to facilitate her studies and said phone bears No.9964746648 which is also facilitated with the benefit of `whatsapp'/application.
10. On 25.01.2020 an unknown person had sent whatsapp message `Hi How are u' and on 26.01.2020 when the daughter of the complainant questioned as to who was he, the person had sent bad messages and made use of the photographs attached to the status in `whatsapp' and sent obscene photographs connecting photos of the victim and also threatened that if she does not join him for chat he would upload 5 those photographs to face book. In this connection complaint was lodged on 27.01.2020 at 5 P.M. and the case was registered under Section 67B of The Information Technology Act and later offence under Sections 14 and 15 of POCSO Act were also invoked.
Section 67B of the Information Technology Act is as under:
Section 67B - Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form - Whoever-
(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or
(b) creates text or digital images, collects, seeks browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting 6 children in obscene or indecent or sexually explicit manner; or
(c) cultivates, entices or induces children to online relationship with one or more children for an on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or
(d) facilitates abusing children online, or
(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children, Shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:
Provided that provisions of section 67, section 67A and this section does not 7 extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form-
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing drawing, painting representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or
(ii) which is kept or used for bonafide heritage or religious purposes.
10. As could be seen from records the undisputed fact is that petitioner was arrested on 30.01.2020 and since then he is in judicial custody. It is seen that the application was rejected on 02.03.2020 by learned II Additional District and Sessions Judge, Kolar. However on facts the allegation of misusing of whatsapp application, the accused committed offence 8 of breaching liberty of expression and committed offence. Initially case was registered for offence punishable under Section 67B of the Information Technology Act.
11. Learned counsel for the petitioner would submit that the petitioner has no criminal antecedents rendering for rejection of bail petition. Petitioner is ready to comply with the conditions that may be imposed on him and he is ready to offer surety in accordance with directions of this Court.
12. Learned counsel would submit that petitioner has no criminal antecedent and not a habitual offender. The circumstances of the case are that on the allegation of offences punishable under Section 67B of the Information Technology Act, 2000 and Sections 14 and 15 of POCSO Act the petitioner was committed to 9 judicial custody and his bail petition was rejected by learned District Judge.
13. Learned Government Pleader for respondent opposes the bail petition of the petitioner and submits that the petitioner has not made out ground for getting bail. The stay of the petitioner in judicial custody has no relevance for his release. The intentions of the petitioner are not good. The conduct of the petitioner is threatening also. He does not appear to be a law abiding citizen and has committed heinous offence.
14. Sections 14 and 15 of POCSO were also invoked. In the circumstances of case learned District Judge has rejected the application. The petitioner is stated to be an Engineering student at Kolar. In the overall context and circumstances of the case considering judicial custody of the petitioner in respect of the 10 offence alleged against him I find there is no allegation of interference to the investigation. There are no complaints of criminal background as submitted by learned counsel for petitioner. In the light of the fact that petitioner is in judicial custody and learned District Judge has rejected the bail application on 02.03.2020, I find no prejudice would be caused if the petitioner is granted bail and released from the judicial custody and apprehension of the prosecution could be always resolved by imposing conditions.
15. The offences alleged against the petitioner are under Section 67B of the Information Technology Act, 2000 and Sections 14 and 15 of POCSO Act. It is just and proper to allow the petition subject to conditions.
Petition is allowed. Petitioner is enlarged on bail in Cr.No.2/2020 registered by respondent police 11 against the petitioner for the offence punishable under Section 67B of the Information Technology Act, 2000 and Sections 14 and 15 of POCSO Act, subject to following conditions.
i) The petitioner-accused shall execute a personal bond for Rs.1,00,000/- with a surety of a person possessing immovable properties for the likesum.
ii) He shall not send any message or call to the victim. He shall not come into contact with complainant or his family members. If any case is registered hereafter against the petitioner of similar nature or other, benefit of bail granted under this case stands cancelled.
iii) The petitioner-accused shall not terrorize the witnesses or tamper with the prosecution witnesses in any manner.
iv) The petitioner shall undergo medical check-up immediately upon his release on bail, by 12 suitable medical officer and quarantine himself exclusively in his house for a period of 14 days from the date of release unless he is required for hospitalization to prevent further complications regard being had to the fact of Covid-19.
v) The petitioner-accused shall mark his attendance before the Investigating Officer of the above case on every first Saturday of the month between 9.00 p.m. to 10 p.m. for a period of three months.
Sd/-
JUDGE SBN