Karnataka High Court
Kundan Kumar Singh vs State Of Karnataka By on 9 September, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION No.2977/2019
BETWEEN:
Kundan Kumar Singh,
Aged about 25 years,
S/o. Raju Singh,
R/at Venkatesha Lakshmi P.G.,
4th Main Road,
New Thippasandra Market,
Indiranagar,
Bengaluru - 560 038. ...Petitioner
(By Sri. Hashmath Pash, Senior Counsel
a/w Sri. Nasit Ali, Advocate)
AND:
State of Karnataka,
By Electronic City Police Station,
Represented by
State Public Prosecutor,
High Court Building,
Bengaluru - 560 001 ...Respondent
(By Sri. Vijayakumar Majage, Addl. SPP for respondent
Smt. Jeena V. Chacko, Adv. for complainant)
This Criminal petition is filed under Section 439 of
Cr.P.C. praying to enlarge the petitioner on bail in Crime
No.790/2015 of Electronic City for the offence punishable
2
under Sections 506 and 376 of IPC and Sections 4, 6, 8 and
12 of POCSO Act, 2012.
This Criminal petition coming on for Orders, this day,
the Court made the following:
ORDER
Smt. Jeena V. Chacko, learned counsel for the complainant has moved an application under Section 301(2) of Cr.P.C. seeking to assist the prosecution.
Heard.
Application is allowed.
Counsel is permitted to assist the prosecution.
2. By order dated 01.08.2019, the trial Court dealing with the trial of the petitioner/accused in Spl.C.31/2016 was directed to prepone the case and to take up the matter on day-to-day basis and conclude the trial by 31.08.2019. Similar direction was issued by this court in Crl.P.No.4718/2017 directing the trial Court to conclude the trial within four months from 01.09.2017.
3. Inspite of these directions, the trial Court failed to complete the trial as directed. The sequence of events 3 leading to filing of this petition has been narrated in detail, in the order dated 01.08.2019. By subsequent order dated 03.09.2019, once again matter was adjourned by one week to enable the trial Court to complete the trial.
4. When the petition is taken up for hearing today, learned Senior counsel appearing for petitioner/accused filed a memo along with the requisition made by the learned Public Prosecutor seeking further time of 20 days to secure an order from the Government for appointment of Spl.P.P. This memo indicates that there is no prospects of completing the trial in the near future.
5. From the material placed on record it is seen that all the material witnesses are already examined on behalf of the prosecution. It is pointed out that the victim has supported the case of the prosecution. Since the victim is fully examined, there cannot be any apprehension of the petitioner tampering with the said witnesses. It is submitted that only the Medical Officer and FSL authorities are required to be examined. They are formal witnesses. In 4 view of the directions issued by this Court way back on 01.09.2017 to conclude the trial within four months therefrom, the trial Court could have taken proper steps to examine these witnesses, if only the trial Court had scant respect for the orders passed by this Court. The manner in which the case has been conducted by the trial Court indicates a total failure on the part of the Court to adhere to the directions of this Court and to follow the mandate prescribed under the POCSO Act. Section 35 of the POCSO Act requires the trial Court to conclude the trial within one year from the date of taking cognizance. The accused is in custody since 18.11.2015 and the matter is being prolonged solely on account of laxity on the part of the government in appointing the Spl.P.P. to conduct the case. I am conscious of the fact that mere delay in trial cannot be a reason to enlarge the accused on bail, who is otherwise not eligible for bail. But earlier order passed by this Court make it evident that the bail was denied to petitioner/accused keeping in mind the timeline prescribed in the Act and with a view to ensure that the victim of the offence is not threatened or 5 allured. Since this apprehension is now been allayed, this Court is required to balance the right of the accused as well as the right of the victim. Since the accused has been languishing as an undertrial prisoner since 3½ years inspite of examination of the victim, in my view, further extension of custody of the petitioner would amount to punishment without trial.
6. The approach of the Court in the above circumstances is not whether a prima-facie case is made out by the prosecution for conviction of the accused, rather, the presence of the accused would be readily available for further trial or that he is likely to abuse the liberties granted in is favour by tampering with the evidence. For the present, I do not find any material on record to justify the inference that the accused would resort to any such endeavors. It is submitted by the learned Senior Counsel appearing for the petitioner/accused that the petitioner/accused is prepared to offer local surety for his release and that petitioner/accused undertakes not to leave 6 the territorial limits of the trial Court until conclusion of the trial. Therefore, taking into consideration all the above facts and by ensuring necessary precautions to secure the presence of the petitioner/accused for the purpose of trial, petition is allowed with the following conditions:
a) Petitioner/accused is ordered to be enlarged on bail on furnishing a bond in a sum of Rs.5,00,000/- (Rupees Five Lakhs only) with two sureties for the likesum to the satisfaction of the trial Court. One of the sureties shall be a local surety who shall furnish the original title deeds relating to the immovable property held by him within the limits of the trial Court and the same shall be retained by the Court until discharge from the security obligations.
b) Petitioner shall not threaten or allure the prosecution witnesses in whatsoever manner.
c) Petitioner shall not leave the jurisdiction of the trial Court during pendency of trial without prior permission of the trial Court.7
d) Petitioner/accused shall appear before the Court on every date of hearing without fail. The sureties shall ensure the presence of the petitioner/accused on every date of hearing/trial and if the accused fail to appear on any scheduled date of hearing before the trial Court without any justifiable and acceptable reason, bonds executed by the sureties shall be forfeited and bond amount shall be recovered from the sureties. In such event, the Spl. Public Prosecutor shall be at liberty to seek for cancellation of the bail and take petitioner/accused into custody.
Sd/-
JUDGE SV