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Karnataka High Court

D. K. Lakshmikanth vs The State Of Karnataka on 31 October, 2018

                                 CRL.P.NO.6215/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 31ST DAY OF OCTOBER, 2018

                     BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

         CRIMINAL PETITION NO.6215 OF 2018

BETWEEN:

D.K.LAKSHMIKANTH
AGED ABOUT 36 YEARS
S/O DAKAPPA
R/AT NO.52/54, 14TH MAIN
1ST PHASE, GOKULA, MATHIKERE
BENGALURU - 560 054                   ... PETITIONER

(BY SRI M.T.NANAIAH, SENIOR COUNSEL FOR
    SRI M.R.C.MANOHAR, ADV.)

AND:

THE STATE OF KARNATAKA
BY JALAHALLI POLICE,
BENGALURU
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX
BENGALURU - 560 001                  ... RESPONDENT

(BY SRI NAZRULLA KHAN, HCGP )

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C PRAYING TO ENLARGE THE PETITIONER
ON BAIL IN CRIME NO.11/2016 (SPL.C.C.NO.225/2016) OF
JALAHALLI POLICE STATION, BANGALORE CITY FOR THE
OFFENCE P/U/S 354, 376 OF IPC AND SECTION 4, 6, 12
OF POCSO ACT.
                                      CRL.P.NO.6215/2018

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     THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

Petitioner is facing trial in Spl. C.C. No.225/2016 on the file of 54th Additional City Civil and Sessions Judge, Bengaluru City, for the offences punishable under Sections 376 and 354 of I.P.C and Sections 4, 6 and 12 of Protection of Children from Sexual Offences Act, 2012 (POCSO).

2. The allegations against the petitioner are that being the Physical Education Instructor subjected his minor student 'X' (for the purpose of confidentiality victim is referred to as 'X') to repeated grave penetrative sexual assault. It is alleged that petitioner administering her some sedative laced soft drinks captured her porn photographs and black mailing to circulate the same sexually exploited her.

3. The bail petition of the petitioner on first occasion in Crl.P.No.6850/2016 was dismissed on CRL.P.NO.6215/2018 3 22.11.2016 as withdrawn. Second bail petition in Crl.P.No.1327/2017 was dismissed on merits on 18.04.2017.

4. In this third petition, Sri M.T. Nanaiah, learned Senior counsel appearing for Sri M.R.C. Manohar, learned advocate on record seeks bail on the following grounds:

i. The statement of victim girl 'X' was not recorded and trial is not concluded as required under Section 35 of POCSO Act;

ii. Victim girl 'X' and her mother are examined as P.Ws.1 & 3 and they have not supported the prosecution's case;

iii. The petitioner is in judicial custody since 19.02.2016.

5. In support of his arguments, learned senior counsel relies upon the following orders of this Court:

i. Keshav -vs- The State of Karnataka, Crl.P.No.644/2016 dated 10.05.2016;

ii. G.S. Madusudan @ Madu -vs- State by Kuvempunagar Police Station, Crl.P.No.5297/2015 CRL.P.NO.6215/2018 4 C/w Crl.P.No.5439/2015 & Crl.P.No.5632/2015 dated 09.09.2015;

iii. Suresh S/o Kollapuri -vs- The State of Karnataka, Crl.P.No.7236/2017 dated 08.03.2018.

6. Per contra, learned H.C.G.P. submits that:

(i) Earlier bail petition of the petitioner was rejected on merits. Therefore, the present petition cannot be considered on merits.

(ii) P.Ws. 1 & 3 turning hostile, does not confer benefit of bail on petitioner. Other material witnesses are yet to be examined.

(iii) The learned Magistrate who recorded the statement and medical officer who examined the victim girl 'X' are yet to be examined.

(iv) The time prescription under Section 35 of the POCSO Act is for the benefit of the victims and not for the accused. CRL.P.NO.6215/2018 5

7. Section 35 of the POCSO Act reads as follows:

"35. Period for recording of evidence of child and disposal of case.-(1) The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court.

(2) The Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence."

8. As per Section 35(1) of POCSO Act, the child has to be examined within the period of 30 days from the date of taking cognizance. The case on hand, cognizance was taken on 21.05.2016. Thereafter petitioner filed Crl.P.No.6850/2016 and withdrew that on 22.11.2016. The second bail petition was disposed on 18.04.2017. Therefore, the ground claimed under Section 35(1) of POCSO Act is deemed to have been CRL.P.NO.6215/2018 6 considered in Crl.No.1327/2017 and by withdrawing earlier petition the same deemed to have been given up.

9. The object of the POCSO Act is to ensure witness protection and to render speedy justice to victim. Certified copy of the order sheet of Spl.C.C.No.225/2016 is made available for perusal of this court. That goes to show that after taking cognizance in the matter, petitioner filed bail application and good number of times there was no representation for him and therefore there was delay in disposal of the said application.

10. Thereafter petitioner's wife filed application for interim custody of the property and again there was no representation and that has consumed some time. After causing such abeyance of the trial, petitioner cannot claim advantage of his own default as a ground for grant of bail.

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11. So far as the nature of evidence of P.Ws.1 & 3, the material on record shows that the statement of the victim girl 'X' was recorded in electronic form (Video) by the learned Magistrate under Section 164 of Cr.P.C. Prosecution on treating 'X' hostile confronted her in cross examination with the said video. She admitted recording of the said statement but stated that she has given such statement under the influence of the Police. Whether she has given such statement under any influence has to be ascertained only after examination of the learned Magistrate who recorded her statement and the I.O.

12. Further the medical examination report shows that before the doctor victim girl 'X' has given history of sexual assault by the petitioner. Therefore at this stage merely because of hostility of P.Ws.1 & 3 Court cannot jump to the conclusion that prosecution's case is bound to fail.

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13. The orders relied upon by the learned senior counsel for the petitioner do not apply to the facts of this case. No ratio is laid down in those orders.

14. Under the circumstances noted above, P.Ws.1 & 3 turning hostile may be out come of tampering also. Therefore it is not a fit case to grant bail. The petition is dismissed.

Both parties shall co-operate for expeditious disposal of the matter. The learned trial judge shall expedite the trial.

Sd/-

JUDGE HR