Umesha vs State By N R Pura Police Station
2022 Latest Caselaw 11282 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4 T H DAY OF AUGUST, 2022

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

        CRIMINAL APPEAL NO.1263 OF 2022

BETWEEN:

Umesha
S/o Annamalai
Aged about 35 years
R/at Jail Building
Lingapura Villag e, N.R.Pura Taluk
Chikkamag aluru District-577134.
                                            ...Appellant
(By Sri M.C. Harish Kumar, Advocate)


AND:

1.   State by N.R.Pura Police Station
     Chikkamag aluru
     Represented by
     State Pub lic Prosecutor
     Hig h Court of Karnataka
     Bang alore.

2.   Ku. Aiswarya
     D/o Manjunatha
     Ed ad all Road
     Nag alap ura Road
     N.R. Pura Taluk
     Chikkamag aluru District-577134.
                                          ...Respondents
(By Sri K. Nag eshwarapp a,HCGP for R1;
 R2 - served)
                                     :: 2 ::


      This      Criminal       Appeal       is   filed     under       Section
14(A)(2) of SC/ST (POA) of CR.P.C. praying to set
aside the imp ugned order d ated 07.07.2022 p assed by
the Hon'ble Additional District and Sessions Judge,
Chikkamag aluru in Spl.C.(POCSO) No.34/2022 for the
offence     p unishable        under       section       363,376(2)(n)(f),
376(3) of IPC and Section 6 of POCSO Act and Section
3(1)(w)(i) and 3(2)(v) of SC/ST act and pleased to
enlarg e the appellant on b ail.


      This Criminal Appeal coming on for admission
this d ay, the Court d elivered the following:

                               JUDGMENT

Heard Sri Harish Kumar M C, learned counsel

for the appellant and the learned High Court

Government Pleader for respondent No.1-State.

Respondent No.2 is absent inspite of service of

notice on her through the concerned police.

2. This is an appeal filed under Section

14(A) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act (SC/ST Act for

short), challenging the order dated 07.07.2022

passed by the Additional District and Sessions :: 3 ::

Judge, FTSC-1, Chikkamagaluru in

Spl.Case.(POCSO).No.34/2022, dismissing the

appellant's application filed under Section 439 of

Cr.P.C. The appellant is accused No.2.

3. FIR was registered on 20.02.2022 at the

instance of second respondent for the offences

punishable under Section 376(2)(f) of IPC, Section

6 of POCSO Act and Sections 3(2)(v), 3(1)(w)(i) of

Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Amendment Act, 2015.

Now charge sheet is filed.

4. The trial court dismissed the application

for bail observing that the appellant was not able

to make out a changed circumstance in the second

application for bail. But the learned counsel for

the appellant submits that when first application

was filed by the appellant under Section 439 of

Cr.P.C., charge sheet had not been filed and by :: 4 ::

the time second application was filed, charge sheet

had been filed.

5. If the entire charge sheet is read, it is

possible to make out inconsistency in the case of

prosecution to hold that there is no prima-facie

case against the appellant. The statement given

by the girl under Section 164 of Cr.P.C., has not

been considered by the trial court and therefore

the trial court has committed an error in rejecting

the application for bail.

6. If the FIR and charge sheet materials are

read, what is forthcoming is, except the age of the

girl being 16 years on the date of the alleged

incident, the other circumstances indicate that the

girl herself went with the appellant. Medical

certificate indicates that rupture of hymen was

old. It only suggests that the girl was used to

sexual intercourse. Having regard to the facts and

circumstances narrated in the charge sheet, the :: 5 ::

trial court could have granted bail to the appellant

by putting some stringent conditions. If the

presence of the accused can be secured before the

court for trial and if the court is convinced that

there is no chance of witnesses being threatened

or evidence being tampered, there is no

impediment for granting bail. In this view of the

matter, I am of the opinion that this appeal can be

allowed. Hence the following:

ORDER Appeal is allowed.

The order passed by the Additional District and Sessions Judge-FTSC-1, Chikkamagaluru dated 07.07.2022 in Spl.Case(POCSO).No.34/2022 on the application of the appellant under Section 439 Cr.P.C., is set aside. The said application is allowed.

The appellant is admitted to bail on obtaining from him a bond for Rs.1,00,000/- (One Lakh only) and providing two sureties for the likesum :: 6 ::

to the satisfaction of the trial court. The appellant is also subjected to following conditions:-

    i.    He    shall     not        tamper       with      the
          evidence            collected           by        the
          investigating         officer     and      threaten
          the witnesses.

ii. He shall regularly appear before the trial court till conclusion of the trial.

iii. Till conclusion of the trial, the appellant shall mark his attendance before the jurisdictional police Station once in 15 days, preferably on Sunday between 9 am and 12 noon.

iv. He shall not get involved in any other criminal case/s in future. In case of any FIR is registered against him, the same will be considered for cancellation of bail.

Sd/-

JUDGE

Kmv/-