Karnataka High Court
Smt. Swapna vs The State Of Karnataka on 29 January, 2021
Author: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2021 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION No.6696/2020
BETWEEN:
SMT. SWAPNA
W/O LATE RAVI KUMAR
AGED ABOUT 35 YEARS
R/O KOTARI HOUSE
KODIMBALA VILLAGE
KADABA TALUK
D.K. - 574 201. ... PETITIONER
(BY SRI. AJAY PRABHU M., ADVOCATE
FOR SRI. SACHIN B.S., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
KADABA POLICE, PUTTUR
D.K.DISTRICT
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGLAURU-560 001.
2. JAYANANDA K
S/O SHEENA NAIK
AGED ABOUT 56 YEARS
R/AT KOTARI HOUSE, KODIMBALA VILLAGE
PUTTUR TALUK, D.K.-574 201. ... RESPONDENTS
(BY SMT. NAMITHA MAHESH B.G., HCGP FOR R1
SRI. K.A. KARUMBAIAH, ADVOCATE FOR R2)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE IMPUGNED ORDER DATED
08.10.2020 IN CRL.MISC.NO.5172/2020 ON THE FILE OF THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU SITTING AT PUTTUR D.K. AND DIRECT
RESPONDENT No.1-POLICE TO ARREST THE RESPONDENT No.2
AND COMMIT HIM TO THE CUSTODY.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C, praying
this Court to set aside the order dated 08.10.2020 in
Crl.Misc.No.5172/2020 on the file of V Additional District and
Sessions Judge, D.K., Mangaluru, sitting at Puttur, D.K., and
direct respondent No.1-Police to arrest respondent No.2 and
commit him to the custody.
2. The factual matrix of the case is that the
complainant, who is the sister-in-law of the accused had given
the statement in the hospital that, when the complainant and
her daughter are in the house, this petitioner came in connection
with repayment of loan borrowed by her deceased husband from
PCARD Bank, Kadaba. In this regard, he used to come to the
house of the complainant and disturb her and her daughter and
he used to knock the door of the house. This petitioner
trespassed into the house of the complainant; by removing his
knicker, he misbehaved and sexually harassed her in the grudge
of non-payment of the loan installment and in connection with
the cutting of sprinkler pipe of the garden of the accused. On
23.01.2020 at about 4:00 p.m, when the complainant was in her
house with her two years old daughter-Sameeksha, abused the
complainant in a filthy language and asked her to sell her
children and follow him and while complainant was recording the
video, he threw the golden touch formic acid through the window
to the face and chest of complainant. As a result, the
complainant and her daughter suffered burn injuries. Based on
this complaint, a case has been registered in Crime No.6/2020
for the offences punishable under Sections 354A, 509, 504, 506,
448, 307 & 326A of IPC. Respondent No.2 has filed the bail
petition under Section 439 of Cr.P.C, and the learned District
Judge granted bail in favour of respondent No.2 vide order
8.10.2020. Hence, the present petition is filed for cancellation of
bail.
3. The main contention of the learned counsel
appearing for the petitioner-complainant is that the learned
District Judge while exercising the powers under Section 439 of
Cr.P.C, failed to take note of the gravity of the offences and also
it is a case of throwing the acid and as a result the complainant
sustained the burn injuries and the daughter also sustained the
injuries. The District Judge while exercising the discretion also
not assigned the reason only stating that he is the resident of
Kodimbala and there is no chances of fleeing away from justice
and fleeing away from justice is also very less. It is also
observed in the order that prior to the institution of the present
case, the relationship was strained between the parties. The
very reasoning given by the Court is erroneous.
4. The learned counsel in support of his arguments, he
relied upon the Judgment of the Apex Court in the case of
MAHIPAL v. RAJESH KUMAR @ POLIA AND ANOTHER
(Criminal Appeal No.1843/2019), in this judgment, the Apex
Court in paragraph No.12 held that, the severity of the
punishment and a prima facie view of the involvement of the
accused are important. No straight jacket formula exists for
courts to assess an application for the grant or rejection of bail.
At the stage of assessing whether a case is fit for the grant of
bail, the court is not required to enter into a detailed analysis of
the evidence on record to establish beyond reasonable doubt the
commission of the crime by the accused. However, the Court is
required to examine whether there is a prima facie or reasonable
ground to believe that the accused had committed the offence
and on a balance of the considerations involved, the continued
custody of the accused sub-serves the purpose of the criminal
justice system.
5. The learned counsel also relied upon the Judgment of
the Apex Court in the case of NEERU YADAV v. STATE OF
UTTAR PRADESH AND ANOTHER reported in 2015 (15) SCC
422, and brought to the notice of paragraph No.5 of the
Judgment, wherein, the Apex Court held that, it actually calls in
question the legal pregnability of the order passed by the High
Court. The prayer for cancellation of bail is not sought on the
foundation of any kind of supervening circumstances or breach
of any condition imposed by the High Court. The basic assail is
to the manner in which the High Court has exercised its
jurisdiction under Section 439 of Cr.P.C, while admitting the
accused to bail. To clarify, if it has failed to take into
consideration the relevant material factors, it would make the
order absolutely perverse and totally indefensible. That is why
there is a difference between cancellation of an order of bail and
legal sustainability of an order granting bail.
6. Per contra, learned High Court Government Pleader
appearing for respondent No.1/State would submit that the burn
injuries on account of throwing the acid on the complainant is to
the extent to 20 to 25% and burns are discoloration on the face,
chest and anterior part of the chest and breast area. Further,
learned High Court Government Pleader submits that the child
also sustained the injury to the face and lower limb. The learned
High Court Government Pleader also submits that the accused
also sustained the injuries as per the Wound Certificate, which
clearly shows that this accused was very much present at the
time of the incident, which prima facie discloses an incident.
7. Learned counsel for respondent No.2 would submit
that the Police have investigated the matter and filed the charge
sheet and the matter is now under trial. The learned Magistrate
while exercising the discretion taken note of the earlier
differences between the complainant and the accused and
assigned the reasons and hence, it does not require any
interference by this Court.
8. Having heard the arguments of the respective
counsel, this Court has to consider the materials on record
whether the learned District Judge while passing the order
exercised his discretion and legal sustainability of the order. The
fact that the complainant and her child were subjected to acid
attack has been investigated and filed the charge sheet. The
medical certificates, which are wound certificates, show the very
nature of injury sustained by the complainant. The photographs,
which have been produced before the Court also shows the
gravity of the offence and the acid was thrown on the face of the
complainant and spilled over the body of the complaint and also
on her child. It is also important to note that the complaint
averment discloses that an attempt was made to outrage the
modesty of the complainant, who is none other than the sister-
in-law. The fact that the accused is also the brother-in-law of
the complainant. It is also not in dispute that the brother of the
accused was also passed away and the victim-complainant is the
sister-in-law, who is living along with her children after the death
of her husband.
9. Having considered the material aspects particularly
the Wound Certificate when the complainant had suffered 20 to
25% of burn injuries on account of acid attack and also the child
of the complainant, the learned District Judge ought to have
taken note of the gravity of the offences and also the nature of
the act committed by the accused. The learned Sessions judge
failed to take note of the said fact into consideration and while
exercising the discretion also, it is mentioned that there was
strained relationship between the complainant and family
members of the petitioner and much prior to the institution of
the present case. The very complaint itself discloses that the
accused was targeting the complainant in not making the loan
repayment which has been availed from PCARD Bank. There is
no such any other dispute between the family except with regard
to repayment of loan i.e., to the bank and not availed the loan
from the accused. The complaint clearly discloses with regard to
the utterances made by the accused and also making an attempt
to sexually harass the complainant and it appears when the
complainant did not budge to the desire of the accused, he
threw the same on the face and all over the body of the
complainant and in that indulging act, the child is also suffered the
burn injuries on account of throwing of acid. The accused went with
the acid. These aspects have not been considered by the learned
Sessions Judge while appreciating the case on hand and while
passing the order, an observation is made that the possibilities of
the accused i.e., fleeing from justice is very less. This is the reason
given while exercising discretion by the learned Sessions Judge.
Hence, the learned Sessions Judge failed to appreciate the facts of
the case and also the gravity of the offences and committed an
error in taking note of the seriousness of the charges levelled
against the accused and it is the case of acid attack on his own
sister-in-law that too, who lost her husband and the husband is
also none other than the brother of the accused. The accused
not only threw the acid on the complainant and as a result of the
same the daughter along with the complainant also suffered the
burn injuries. Having considered the materials on record, the
discretion exercised by the trial Judge is erroneous and legally
not sustainable. The trial Judge lost sight of the gravity of the
offence. It would make the order absolutely perverse and totally
indefensible as held by the Apex Court in NEERU YADAV's
case (supra). On perusal of the entire material particularly,
wound certificates of the complainant, her daughter and also the
accused, there is a prima facie and reasonable ground that the
accused had committed the offence as a balance of the
consideration involved, the continued custody of the accused sub
serves the purpose of the criminal justice system as observed by
the Apex Court in MAHIPAL's case (supra).
10. Having considered the materials on record and also
the discussion made above, I am of the opinion that it is a fit
case to cancel the bail granted by the learned Sessions Judge
invoking under Section 482 of Cr.P.C.
11. In view of the discussions made above, I pass the
following:
ORDER
(i) The petition is allowed.
(ii) The order dated 08.10.2020 in
Crl.Misc.No.5172/2020 on the file of V
Additional District and Sessions Judge, D.K.,
Mangaluru, sitting at Puttur, D.K., is hereby set
aside.
(iii) The accused has to be taken to the custody,
forthwith.
(iv) The learned counsel for respondent
No.2/accused submits that the trial has already
been commenced and hence, the trial judge is
directed to conduct the trial as expeditiously as
possible.
In view of allowing the main petition, I.A.No.1/2020 for
stay does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
cp*
