Karnataka High Court
Shri Roshan S/O David D Cruz vs The State Of Karnataka on 5 September, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05 T H DAY OF SEPTEMBER 2022
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.101640 OF 2022
BETWEEN:
SHRI ROS HAN S/ O. DAVID D'CRUZ
AGE: 21 YEARS , OCC: STUD ENT,
R/O: H.NO.64, CHURCH STREET ,
CAMP, BELAGAVI .
... PETITIONER
(BY SMT. NAGA RA THNA S. PATTAR, ADV.)
AND:
1. THE STATE OF KARNATAKA
THROUGH THE P S I CAM P.
R/BY STATE PUBLI C PROSECUTOR
HIGH COURT BENCH DHARWAD .
2. SMT. MUBASSIRIN HABIBULLA BEPA RI
AGE: 32 YEARS , OCC: HOUS EHOLD
CURRENTLY PRESENT R/O H.N O.95,
MOMIN GALLI , HIREBAGEWADI
HALI-591 109, TQ & DIST: BELAGAVI .
EARLIER, R/ O H.N O.64,
CHURCH STREET, CAMP, BELAGAVI .
... RES PONDENTS
(BY SHRI PRASHA NTH V.MOGALI , HCGP FOR R1;
SHRI W . M. S HAHAPURI , ADV OCATE FOR R2)
THIS CRIMINAL PETITION IS FILED U/SEC.439 OF
CR.P.C, SEEKING TO RELEASE THE PETITION ER/
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ACCUSED N O.1 ON BAIL IN CA MP POLICE CRIME
NO.57/ 2021 FOR THE OFFEN CES PUNISHABLE UNDER
SECTION 376DB OF IPC AND S ECTI ON 4, 5 AND 6 OF
THE PROTECTION OF CHILDREN FROM SEXUAL
OFFENCE ACT , 2012 PENDING ON T HE FILE OF THE II I
ADDITIONAL DISTRICT AND SESSIONS JUDGE
BELAGAVI , IN CRIMINAL MISC. NO.344/2022 W HICH
CAME TO BE REJECTED ON 18.04.2022.
THIS PETITION COMING ON F OR ORDERS, T HIS
DAY, THE COURT MADE THE F OLLOWING:
ORDER
This successive petition is filed by accused No.1 under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.', for brevity) seeking bail in Crime No.57/2021 of Camp Police Station registered for an offence punishable under Section 376DB of The Indian Penal Code (hereinafter referred to as 'IPC', for brevity) and Sections 4, 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO', for brevity).
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2. It is the case of the prosecution that, one Smt. Mubasshirin has filed the complaint stating that she is residing in Church street, camp, Belagavi, in a rented house and her husband is working in Arab country. She is having 3 children including the victim girl aged 3 years 7 months. It is further stated that on 12/07/2021 due to ill-health of the complainant's mother-in-law, she was hospitalized in KLE hospital and the complainant used to visit KLE hospital daily. One of the aunts of the complainant was residing along with children. On 15.07.2021, as usual, the complainant went to KLE hospital and returned home. Thereafter, the complainant went to market and returned home at about 7:00pm. At that time, the complainant's aunt informed the complainant 4 that the victim is having pain on her private part and urine is not passing easily. The complainant checked the private part of the victim girl and the said portion was red in colour. The complainant and said Reshma- aunt, took the victim girl to one Kahji's hospital, who told the complainant that there is infection and gave treatment. On 17.07.2021 at 11:00am, the complainant found that from the private part of the victim, blood was oozing with white liquid with foul smell. Immediately, the complainant took the victim to Tukkar hospital situated at Basawan Galli wherein after examination of the victim girl, the Medical Officer suggested the complainant to take the victim to Civil Hospital, as something mischief is done with private part of the victim. The complainant did not go to the Civil 5 Hospital. Thereafter, the complainant asked the victim what happened, at that time, the victim informed the complainant that the petitioner/accused No.1 and one person Hassnain (juvenile offender) both took the victim to the bed room and threatened her and the act did by the accused. The petitioner/accused No.1 came to be arrested on 28.07.2021. The Investigating officer, after completing investigation, has filed the charge- sheet against the petitioner/accused No.1 for the offence under Section 376DB of IPC and Sections 4, 5 and 6 of POCSO Act. The petitioner/accused No.1 filed Crl.Misc. No.878/2021 seeking bail and the same came to be rejected by the learned III Additional District and Sessions Judge, Belagavi, by order dated 24.09.2021. Earlier this petitioner- 6 accused No.1 had approached this Court in Criminal Petition No.102048/2021 seeking bail and the same came to be rejected by order dated 08.12.2021. Thereafter, the petitioner- accused No.1 has filed Crl.Misc.No.344/2022 seeking bail and the same came to be rejected by learned III Addl. District and Sessions Judge, Belagavi by order dated 18.04.2021. Therefore, the petitioner is before this Court seeking bail.
3. Heard the arguments of learned counsel appearing for the petitioner-accused No.1, the learned High Court Government Pleader for respondent No.1-State and the learned counsel for respondent No.2- complainant.
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4. It would be the contention of learned counsel for the petitioner that, the mother of petitioner is not well and the father has expired. It is her further submission that the petitioner is a student and if he is continued in the prison, it will affect his educational career. With this, she prayed to allow the petition.
5. Per contra, learned counsel for respondent No.2-complainant would submit that on earlier occasion considering the merits of the case, heinousness of the offence, punishment for the offence, thereat to the complainant and the prosecution witnesses, this Court has rejected the bail petition of this petitioner-accused No.1. It is his further submission that the petitioner-accused No.1 has not made out any new grounds for considering his successive petition. Merely 8 because, his father is died, mother is unwell, is not a ground for granting successive bail petition, as the offence alleged against the petitioner-accused No.1 is a heinous offence. More so, there is a elder brother of this petitioner, who is looking after his mother. It is his further submission that there is a presumption under Section 29 of the POCSO Act. With this, he prayed to reject the petition.
6. Per contra, learned High Court Government Pleader for respondent No.1-State has reiterated the arguments of the learned counsel for respondent No.2.
7. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the 9 charge sheet records and the statement of the objections filed by the learned Government Pleader.
8. This Court on the earlier occasion considering the age of the victim girl (3 years 7 months), heinousness of the offence, punishment provided for the same, threat to the prosecution witnesses has rejected the bail petition. The successive petition is filed on the ground that the mother of the petitioner is suffering from serious illness and his father has expired on 26.04.2022 and the petitioner is a student and if he is continued in the prison, it will affect his educational career. The victim girl is aged about 3 years 7 months. The offence alleged against the petitioner-accused No.1 is punishable with death or imprisonment for life. As per submission of the learned 10 counsel for respondent No.2 there is a elder brother of this petitioner, who is looking after his mother. As the offence alleged against the petitioner-accused No.1 is heinous offence, the petitioner-accused No.1 is not entitled for grant of bail in the successive petition as no new grounds are made out.
9. Hence, the Criminal Petition is dismissed.
Sd/-
JUDGE AM