Karnataka High Court

State Of Karnataka vs Naveen Kumar on 11 January, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF JANUARY, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION NO.1296/2021

BETWEEN:

STATE OF KARNATAKA
THROUGH CHAMARAJNAGAR EAST POLICE
CHAMARAJNAGAR
REP. BY STATE PUBLIC PROSECUTOR OFFICE
HIGH COURT BUILDING, BENGALURU -1
                                               ... PETITIONER
(BY SRI VINAYAKA V.S., HCGP)

AND:

NAVEEN KUMAR, S/O SHEKAR
AGED 42 YEARS
R/O BASAPPANA PALYA VILLAGE
CHAMARAJNAGR TQ
CHAMARAJNAGR 571 313
                                            ... RESPONDENT
(BY SRI. P. NATARAJU, ADVOCATE)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C PRAYING TO CANCEL THE ORDER DATED
17.08.2020 PASSED BY THE (I/C) PRL. DISTRICT AND
SESSIONS     JUDGE,    CHAMARAJANAGAR       IN   SPL.  CASE
NO.262/2019      REGISTERED      IN     CR.NO.167/2019   AT
CHAMARAJANAGAR P.S., FOR THE OFFENCE P/U/S 366, 417,
376(N), (I) OF IPC AND SEC.4, 6, 8, 12 OF POCSO ACT.

     THIS CRIMINAL PETITION COMING ON FOR ORDERS
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE
THE FOLLOWING:
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                           ORDER

This petition is filed under Section 439(2) of Cr.P.C.

praying to cancel the order dated 17.08.2020 passed by the

(I/C) Principal District and Sessions Judge, Chamarajanagar in

Spl. Case No.262/2019 registered in Cr.No.167/2019 by the

Chamarajanagar police station for the offence punishable under

Sections 366, 417, 376(n), (i) of IPC and Sections 4, 6, 8 and 12

of POCSO Act.

2. Heard the learned High Court Government Pleader

appearing for the petitioner-State and the learned counsel

appearing for the respondent.

3. The factual matrix of the case is that the respondent

has been arraigned as accused for the aforesaid offences. An

allegation against the respondent is that he was subjected the

minor girl who was aged about 16 years for sexual act and the

same has been reiterated in the statement recorded under

Section 164 of Cr.P.C by the victim before the learned Magistrate

and the medical evidence also supports the case of the

prosecution. The victim girl in her chief-examination supported

the case of the prosecution but in her cross-examination, she

has denied the same. But the Trial Court while granting bail in

respect of the respondent herein comes to the conclusion that

without expressing any opinion on the merits of the case at this

juncture, since the chief-examination of the victim is concluded

and also in this unprecedented situation of COVID-19 where

prisons are congested and the petitioner/accused being in

custody since 28.06.2019 and the petitioner has made out a

prima facie case for granting bail and no other reasons are

assigned in the order and hence, present petition is filed under

Section 439(2) of Cr.P.C to set aside the order and cancel the

bail.

4. The learned High Court Government Pleader

appearing for the State would submit that when the minor victim

girl gave the statement under Section 164 of Cr.P.C that she was

subjected for sexual act and in her chief-examination also she

reiterated the same and the medical evidence also corroborated

with the same, the Trial Court, without appreciating the material

on record has granted bail assigning only one reason that in view

of the unprecedented situation of COVID-19 where prisons are

congested and the petitioner is in custody since 28.06.2019, in a

case of heinous offence of subjecting the minor girl for sexual

act. Hence, the order of the Trial Court is capricious and it

requires interference of this Court.

5. Per contra, the learned counsel for the respondent

would submit that the victim girl as well as her parents have

been examined before the Trial Court and the respondent was in

custody for more than one year and hence, he may be enlarged

on bail.

6. Having heard the respective counsel and also on

perusal of the documents on record, it is clear that the victim girl

was a minor at the time of committing the alleged offence is not

in dispute and also not in dispute that her statement was

recorded before the learned Magistrate under Section 164 of

Cr.P.C and apart from that the medical examination report also

corroborates that she was subjected for sexual act. These

aspects have not been considered by the Trial Court and apart

from that though the victim girl supported the case of the

prosecution in her chief-examination, the Trial Court granted the

bail in favour of respondent herein without expressing the

opinion on merits and the reasons assigned by the Trial Court is

that prisons are congested due to COVID-19 situation and the

accused being in custody from 28.06.2019 and passed an

erroneous order coming to the conclusion that the respondent

herein has made a prima facie case in granting the bail but the

Trial Court has not given reason in what way the respondent

herein has made out a prima facie case. When there is a heinous

offence of subjecting the minor girl for sexual act against the

respondent, if the Courts are extended their discretion in favour

of the accused on the ground that prisons are congested, it is

nothing but a mockery of justice. Hence, the Trial Court has

failed to appreciate the material on record.

7. The Apex Court in the case of RAMESH BHAVAN

RATHOD VS VISHANBHAI HIRABHAI MAKWANA (KOLI)

AND ANOTHER reported in (2021) 6 SCC 230 held that

whether order granting bail is a precedent is a matter for future

adjudication if and when application for bail is moved on grounds

of parity and apart from that the Apex Court held that the Court

has to look into the seriousness and gravity of offences

committed and severity of punishment in the even of conviction,

failure of High Court to consider while granting bail and in the

absence of reasons also the order of granting bail in the present

case held perverse and set aside the order of granting bail. It is

further observed that necessity of recording reasons for grant or

denial of bail though the Court considering bail application does

not need to launch into detailed evaluation of facts on merits

since criminal trail is still to take place, yet court granting bail

cannot be oblivious of its duty to apply judicial mind and to

record reasons, brief as they may be for the purpose of deciding

whether or not to grant bail and further observed that

mandatory duty of the court to record reasons when granting

bail and grant of bail is a matter involving exercise of judicial

discretion and judicial discretion in granting or refusing bail as in

case of any other discretion which is vested in court as judicial

institution, is not unstructured and duty to record reasons is

significant safeguard which ensures that discretion which is

entrusted to court is exercised in judicious manner and recording

of reasons in judicial order ensures that thought process

underlying order is subject to scrutiny and that it meets

objective standards of reason and justice thus, bail order which

does not contain reasons for prima facie concluding that bail

should be granted is liable to be set aside for non-application of

mind.

8. Considering the principles laid down in the judgment

referred supra, it is a case of not exercising the powers of the

Judge judiciously and the reasons assigned by the Trial Court

while granting the bail is reads as follows:

"Nevertheless, without expressing any opinion on the merits of the case at this juncture, since the chief- examination of the victim is concluded and also in this unprecedent situation of COVID-19 where prisons are congested and the petitioner/accused being custody since 28.06.2019, this Court is of the opinion that the petitioner has made out a prima facie case for regular bail. Accordingly, the instant bail application is allowed subject to the conditions."

9. Having read the reasoning assigned by the Trial

Court it is clear that the learned Judge has failed to discharge its

duties as a Judge who is the protector of the victim and also the

protector of justice capriciously came to the conclusion that

petitioner has made out a case for regular bail but there is no

reasons assigned in the order except stating that prisons are

congested. Hence, it is a mockery of justice which requires

interference of this Court under Section 439(2) of Cr.P.C.

10. In view of the discussions made above, I pass the

following:

ORDER

The petition is allowed. Consequently, the order dated