Sri Narasimha Murthy @ Narasimha vs State Ofkarantaka By
2022 Latest Caselaw 10436 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 6TH DAY OF JULY, 2022

                          BEFORE

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

              CRIMINAL PETITION NO.3203/2022

BETWEEN

SRI NARASIMHA MURTHY @ NARASIMHA
S/O LATE SATHYAPPA
AGED ABOUT 20 YEARS
R/AT D PALYA VILLAGE
GOWRIBINDANURU TALUK
CHIKKABALLAPUR DISTRICT-562101
                                               ...PETITIONER
(BY SRIC RAGHAVENDRA P H, ADVOCATE)

AND

1.    STATE OF KARANTAKA BY
      SHO, MANCHENAHALLI P.S
      BANGALORE CITY-560001
      REP. BY STATE PUBLIC PROSECUTOR
      HIGH COURT BUILDINGS
      BANGALORE-560001

2.    M. NAGAMALLESHWARI
      CHILD DEVELOPMENT PROJECT OFFICER
      HINDUPUR TOWN AND TALUK
      ANANTAPUR, ANANTHPUR DIST.-515201
                                           ... RESPONDENTS
(BY SRI H.S. SHANKAR, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CRIME NO.32/2021 OF MANCHENALLI POLICE STATION,
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GOWRIBIDANUR CIRCLE, CHIKKABALLAPUR FOR THE OFFENCES
PUNISHABLE UNDER SECTION 376(2)(N) OF IPC AND SECTION
6 OF POCSO ACT AND ETC.

     THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:


                           ORDER

This petition is filed under Section 439 of Cr.P.C. seeking

regular bail of the petitioner in Crime No.32/2021 of Manchenalli

Police Station, Gowribidanur Circle, Chikkaballapur for the

offences punishable under Section 376(2)(n) of IPC and Section

6 of POCSO Act.

2. Heard the learned counsel for the petitioner and the

learned High Court Government Pleader appearing for the

respondent-State.

3. The factual matrix of the case is that the victim girl

who is aged about 13 years subjected for sexual act by this

petitioner as a result, she became pregnant and gave birth to a

child hence, case has been registered against this petitioner for

the aforesaid offences.

4. The learned counsel appearing for the petitioner

would submit that this petitioner is in custody from 1½ years

and some of the witnesses i.e., the victim as well as panch

witnesses have been examined and yet to examine the father of

the victim and also the doctor and the counsel also submits that

the victim girl is not fully supported the case of the prosecution

and hence, prayed to allow the petition.

5. Per contra, the learned High Court Government

Pleader appearing for the State would submit that the victim girl

who is aged about 13 years subjected for sexual act as a result,

she became pregnant and gave birth to a child and apart from

that the victim has partly supported the case of the prosecution

and other material witnesses have to be examined hence, there

is a prima facie material against the petitioner and prayed to

dismiss the petition.

6. Having heard the respective counsel appearing for

the parties and also on perusal of the material available on

record it discloses that the specific case of the prosecution is that

the petitioner subjected the victim girl for sexual act who is aged

about 13 years as a result, she became pregnant and gave birth

to a child and said fact is not in dispute and the very object in

bringing the Special Enactment is to protect the children from

the sexual act who are below the age of 18 years as defined

under Section 2(d) of the POCSO Act. The counsel appearing for

the respective parties have not disputed the fact that CW1 to

CW6 have been examined and also the fact that the victim girl

has partly supported the case of the prosecution and when such

being the case, this Court cannot usurp the jurisdiction of the

Trial Court by sitting under Section 439 of Cr.P.C and the matter

has to be considered by the Trial Court on merits or otherwise

this Court have to influence the Trial Court to consider the

matter on merits. The Apex Court in the judgment dated

24.05.2022 in the case of MAMTA AND ANOTHER v. THE

STATE (NCT OF DELHI) AND ANOTHER passed in

Crl.A.No.878/2022 held that an important circumstance which

should have, but has not been taken into consideration by the

High Court is that crucial witnesses are yet to be examined.

The release of the second respondent on bail, at this stage,

would run a grave risk of impeding a fair trial and when other

material witnesses have to be examined before the Trial Court, it

is not a case for granting the bail and the Apex Court also in the

judgment referred above set aside the order of the High Court in

coming to the conclusion that it would run a grave risk of

impeding a fair trial. When such being the principles laid down

by the Apex Court and also having taken note of the fact that

some of the witnesses have been examined and other material

witnesses have to be examined, it is not a fit case to exercise

the discretion in favour of the petitioner.

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

following:

ORDER

The petition is allowed. Consequently, the

petitioner/accused No.1 shall be released on bail in connection

with Crime No.32/2021 of Manchenalli Police Station,

Gowribidanur Circle, Chikkaballapur for the offences punishable

under Section 376(2)(n) of IPC and Section 6 of POCSO Act,

subject to the following conditions:

(i) The petitioner shall execute his personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the like-sum to the satisfaction of the jurisdictional Court.

(ii) The petitioner shall not indulge in tampering the prosecution witnesses.

(iii) The petitioner shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause.

(iv) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Court till the case registered against him is disposed of.

Sd/-

JUDGE

SN