Karnataka High Court
Babu Nayak vs The State Of Karnataka on 14 October, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.4523 OF 2020
BETWEEN:
Babu Nayak
S/o Gandhi Nayak,
Aged about 24 years,
R/at Thagarala Thanda,
Ramakuppam Mandalam,
Chittur District,
Andra Pradesh - 778963 ....... Petitioner
(By Sri. Pradeep C.S, Advocate for
Sri. Gajendra C.V., Advocate)
AND:
The State of Karnataka,
By Jalahalli Police Station,
Reptd. by High Court Govt. Pleader,
High Court of Karnataka,
Bengaluru - 560 001 ... Respondent
(By Sri. R.D. Renukaradhya, HCGP)
This Criminal Petition is filed under Section 439 of
Cr.P.C., praying to enlarge the petitioner on bail in
Cr.No.92/2019 of Jalahalli Police Station, Bengaluru City for
the offences punishable under Sections 366A, 376(2) of IPC
and Sections 5(L)(N) and 6 of POCSO Act.
-2-
This Criminal Petition coming on for Orders through
video conference this day, the Court made the following:
ORDER
This petition has been filed by the petitioner/accused under Section 439 of Cr.P.C., to enlarge him on bail in Crime No.92/2019 of Jalahalli Police Station (Spl. Case No.40/2020 pending on the file of LIV Additional City Civil and Sessions Judge, Bengaluru) for the offences punishable under Sections 366A, 376(2) of IPC and Sections 5(L)(N) and 6 of Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for brevity).
2. I have heard Sri. Pradeep C.S., learned counsel for Sri. Gajendra C.V., learned counsel for the petitioner/accused virtually and Sri. R.D. Renukaradhya, learned HCGP for the respondent - State. Notice to the complainant has been served and there is no representation. -3-
3. The gist of the complaint is that the mother of the victim filed a missing complaint alleging that her daughter aged about 15 years was found missing from 15.09.2019. On the basis of the missing complaint, a case has been registered. During the course of investigation, on 04.10.2019, Police traced out the petitioner/accused and the victim. Victim has been brought to the police station and on enquiry, she revealed that the petitioner/accused was loving her and on 15.09.2019, the petitioner/accused secured her to Hosakerehalli and took her from there promising to marry her and they went to Chintamani and there she has been kept in a house known to him for two days and during the said period, she has been sexually assaulted and thereafter, the petitioner/accused took her to his native place and there also she has been kept in his house and during the night times, he used to sexually assault her. Hence, on the basis of the -4- statement given by the victim, after investigation, the charge sheet has been filed.
4. The main grounds urged by the learned counsel for the petitioner/accused is that the petitioner/accused and the victim were loving each other and the age of the victim is 15 years. It is his further submission that since more than one year, the petitioner/accused is in judicial custody and there is no compliance of the provisions of Section 35(1) and (2) of the POCSO Act. He further submits that within 30 days the statement of the victim has to be recorded and within one year, the trial has to be concluded. He further submitted that the medical report submitted in this behalf does not substantiate the fact that the victim has been sexually assaulted. No external injuries were found over the body of the victim and even the Doctor has also opined that there were no recent evidence for the act and that itself shows that the victim has not -5- been sexually assaulted. It is his further submission that the FSL report also does not depict any seminal stains and the petitioner/accused is also not having any bad antecedents. He further submits that the petitioner/accused is ready to abide by any of the conditions that may be imposed by this Court and ready to offer the sureties. On these grounds, he prays to allow the petition and to release the petitioner/accused on bail.
5. Per contra, learned HCGP vehemently argued and submitted that the petitioner/accused has sexually assaulted the minor victim, who has born on 12.10.2004. It is his further submission that the victim has been examined by the Doctor and the medical evidence clearly goes to show that the victim is used to the act like that of sexual intercourse and the hymen is also not present and the statement recorded by the learned Magistrate under Section 164 of Cr.P.C., on -6- 22.10.2019 also reveals that she has been sexually assaulted as against her will, it attracts the provisions of the POCSO Act. He further submits that there is prima facie material as against the petitioner/accused for having involved in a serious offence of sexual assault. On these grounds, he prays to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. The first and foremost contention which has been taken up by the learned counsel for the petitioner/accused is that the victim is aged about 15 years and the petitioner/accused and the victim used to love each other, but the records indicates that the victim is a minor, she has born on 12.10.2004 and even if they used to love and had a sex then that it is not considered to be a consensual sex and she is -7- incompetent to give any consent to have the sex. In that light, the contention of the learned counsel for the petitioner/accused that they used to love and it is a consensual sex which cannot be accepted.
8. The second contention which has been urged by the learned counsel for the petitioner/accused is that the provisions of Section 35 of the POSCO Act have not been complied. The evidence of the victim has to be recorded within a period of 30 days of taking the cognizance of the offence and the Court has to complete the trial within a period of one year. For the purpose of brevity, I quote Section 35 of the POCSO Act which reads as under:
"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 -8- one year from the date of taking cognizance of the offence."
9. The similar issue came up before this Bench in the case of Arvind Kumar K.S. vs. State of Karnataka by Rajajinagar Police Station in Crl.P.No.3672/2020 dated 01.09.2020 therein at para-8, it has been observed as under:
"8. On close reading of sub-section (2) of Section 35 of the POCSO Act, it indicates that though the Special Court is directed to complete the trial within a period of one year from the date of taking cognizance, the words used in between the said sentence 'as far as possible' themselves indicate the fact that it is not mandate of the law that the trial should be completed within a period of one year from the date of taking cognizance. When some discretion is given under the said provision, as far as possible the trial Court can try to complete the trial within a period of one year. When that being so, it cannot be held that there is a delay on the part of the trial Court to complete the trial. In that light, the benefit of Section 35 of the Act will not come to the aid of the petitioner-accused No.1."
10. On going through the said provision of law, it indicates that though the Special Court is directed to -9- complete the trial within a period of one year from the date of taking cognizance, but that is not a strict mandate of the legislatures, by the words which has been used in the said Section, it indicates that 'as far as possible'. In that light, the Court has to complete the trial as far as possible within a period of one year but that is not a non-obstante clause to give an effect that, if the trial has not been concluded, the accused has to be released on bail. Even if the provisions of Section 35(1) is taken into consideration, the evidence of the victim has to be recorded within a period of 30 days by the Special Court from taking the cognizance of the offence. But as could be seen from the records, no material has been produced when the cognizance has been taken and whether the evidence has been recorded in this behalf or not. In that light also the benefit of the said provision cannot be given. I have also taken care of the medical report which has been made available by the learned HCGP, wherein the Doctor who has examined the victim
- 10 -
has opined that the victim is used to the act like that of the sexual intercourse and even the statement recorded by the learned Magistrate under Section 164 of Cr.P.C., on 22.10.2019, therein the victim has also clearly stated that the petitioner/accused against her will used to have a sexual assault and in that light also it substantiates the case of the prosecution.
11. Taking from any angle, the victim is a minor and the petitioner/accused has sexually assaulted her against her will and in that light, there is a prima facie material as against the petitioner/accused for having involved in a serious offence of penetrative sexual assault committed on the victim. In that light, the petitioner/accused has not made out any ground so as to release him on bail. The petition is liable to be dismissed and accordingly, it is dismissed.
12. However, liberty has been given to the petitioner/accused to revive his bail application after
- 11 -
the victim is examined. The trial Court is directed to expedite the trial expeditiously.
Sd/-
JUDGE SJK