Tejas Kumar R vs State Of Karnataka By
2022 Latest Caselaw 7954 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF JUNE, 2022

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

      CRIMINAL PETITION NO.2937 OF 2022

BETWEEN

TEJAS KUMAR R.,
S/O RAMANNA
AGED ABOUT 22 YEARS
R/AT PIPE LINE ROAD
BEHIND COUNTRY CLUB
YESHWANTHPUR HOBLI
BENGALURU NORTH TALUK - 560 022.
                                       ...PETITIONER

(BY SRI HASMATH PASHA., SENIOR ADV
  FOR SRI NASIR ALI, ADVOCATE)

AND

STATE OF KARNATAKA
BY TAVAREKERE POLICE
RAMANAGAR DISTRICT - 560 029
REPRESENTED BY STATE PUBLIC PROSECUTOR.

                                     ...RESPONDENT
(BY SRI MAHESH SHETTY, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON
BAIL   IN   CR.NO.42/2022   OF   TAVAREKERE   P.S.,
RAMANAGARA DISTRICT FOR THE OFFENCES P/U/S. 376,
417 OF IPC AND SECTIONS 4 AND 6 OF POCSO ACT.
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    THIS CRIMINAL PETITION COMING ON FOR ORDERS
THROUGH VIDEO CONFERENCING 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.42/2022

of Tavarekere Police Station for the offences punishable

under Sections 376 and 417 of IPC and Section 4 & 6 of

POCSO Act, 2012.

2. Heard learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent - State.

3. The factual matrix of the case of the prosecution

is that complaint is lodged against the petitioner by the

complainant that both were having acquaintance with each

other and they became friends and also both of them were

loving each other and in the month of July, 2019 when

nobody was in the house of the petitioner, he called the

victim to his house and he also persuaded her that he is

loving her and also he would get consent from his family

members to marry and by promising that he would marry

her, he subjected her to sexual act as against her wish and

when his family members were there in the house, he used

to take her to gas godown and continued his sexual act

promising that he would marry her and he also collected

an amount of Rs.10,000/- from her for consuming alcohol.

Even two months back also the petitioner subjected the

victim girl to sexual act and now he turned hostile to his

promise. Hence, complaint is lodged by the complainant

against the petitioner. Based on the complaint, the Police

have registered a case and investigated the matter and

now charge sheet has been filed. In the charge sheet also

an allegation is made against the petitioner that he had

repeatedly subjected the victim girl to sexual act and

accusation is made that she was subjected to sexual act

repeatedly when she was 16 years old.

4. Learned counsel for the petitioner in his two-

fold arguments mainly contends that Section 173(1-A)

contemplates that investigation has to be completed within

two months and the same is a specific provision with

regard to invoking of offence under Section 376 and

investigation has to be completed within two months and

investigation has not been completed and charge sheet

has been filed subsequent to expiry of two months and

hence, this amended proviso prevails over Section 167 of

Cr.P.C., and the same is a special provision made in order

to complete the investigation within two months. Learned

counsel also submits that additional grounds are urged by

the petitioner before this Court by filing necessary

application seeking permission to urge additional grounds

and this Court also allowed the said application and the

trial Court has committed an error in coming to the

conclusion that Section 173(1-A) is not applicable to the

facts of the case on hand and applies Section 167 of

Cr.P.C., is applicable, which prescribes three months for

completion of investigation when the offence is punishable

with death or imprisonment for life and punishment

provided for more than 10 years and the very approach of

the trial Court is erroneous.

5. Learned counsel in support of his arguments

also relied upon the judgment of the Apex Court reported

in [2014] 3 S.C.R 1 in the case of Commercial Tax

Officer, Rajasthan v. M/s Binani Cement Ltd., & Anr

and brought to the notice of this Court paragraph No.27,

wherein the Hon'ble Apex Court has held that "settled legal

position in law, that is, if in a Statutory Rule or Statutory

Notification, there are two expressions used, one in

General Terms and the other in special words, under the

rules of interpretation, it has to be understood that the

special words were not meant to be included in the general

expression. Alternatively, it can be said that where a

Statute contains both a General Provision as well as

specific provision, the later must prevail". Hence, in view

of the aforesaid Apex Court judgment, Section 173(1-A)

prevails.

6. The learned counsel also relies upon judgment

reported in (2021) 2 SC 485 in the case of M Ravindran

v. Intelligence Officer, Directorate of Revenue

Intelligence, wherein the Apex Court has also in detail

discussed with regard to Section 167(2) of Cr.P.C., in

exercising the powers while granting the statutory bail, he

brought to the notice of this Court paragraph No.17.8,

wherein also it has been observed that "indefeasible right

to default bail under Section 167(2) is an integral part of

the right to personal liberty under Article 21, and the said

right to bail cannot be suspended even during a pandemic

situation as is prevailing currently. It was emphasized that

the right of the accused to be set at liberty takes

precedence over the right of the State to carry on the

investigation and submit a charge-sheet." Further, it has

been observed in paragraph No.17.9 that "it is well settled

that in case of any ambiguity in the construction of a penal

statute, the courts must favour the interpretation which

leans towards protecting the rights of the accused, given

the ubiquitous power disparity between the individual

accused and the state machinery. This is applicable not

only in the case of substantive penal statutes but also in

the case of procedures providing for the curtailment of the

liberty of the accused".

7. The learned counsel for the petitioner also

relied upon the order of this Court in Cr.P.No.9614/2021

and also order passed in Crl.P.No.10199/2021 and also

Crl.P.No.10082/2021 and having taken note of the similar

circumstances bail has been granted by this Court.

Learned counsel also submits that Section 4 of Cr.P.C.,

provides for trial of offences of Indian Penal Code and

other laws and learned counsel also brought to notice of

this Court Sub-clause (2), wherein the procedure shows

that "all offences under any other law shall be

investigated, inquired into, tried, and otherwise tried with

according to the same provisions, but subject to any

enactment for the time being in force regulating the

manner or place of investigating, inquiring into, trying or

otherwise dealing with such offences".

8. Per contra, learned High Court Government

Pleader submits that the punishment provided under

Section 6 of the Protection of Children from Sexual

Offences Act, 2012 (hereinafter referred to as 'Act' for

short) shall be punished with rigorous imprisonment for a

term which shall not be less than 20 years and the same

may be extended for life imprisonment that too, rigorous

imprisonment and he contend that it is the specific word

used that the term shall not be less than 20 years, but

which may extend to imprisonment for life, which shall

mean imprisonment for remainder of natural life of that

person, and also shall be liable to fine, or with death.

Hence, the very contention of the learned counsel for the

petitioner that Section 173(1-A) comes to the aid of the

petitioner cannot be accepted. Learned HCGP also submits

that it is an heinous offence and time provided under

Section 167 of Cr.P.C., is 90 days and not 60 days as

contended by the learned counsel for the petitioner and in

order to get default bail or statutory bail, Section 167 of

Cr.P.C., is applied and not Section 173(1-A) of Cr.P.C., as

contended and it is only a direction to complete

investigation within two months, if Section 376 of IPC is

committed never is an offence against the child as defined

under Section 2(d) of the Act.

9. Learned HCGP also submits that in 164

Statement, the victim girl has made a specific statement

before the Magistrate that in the year 2019, the petitioner

subjected her for sexual act stating that he would get

permission from both the houses and took her to his house

and subjected her for sexual act forcibly and also on

several occasions, he took her to gas godown and

subjected her for sexual act and apart from that, he had

collected an amount of Rs.10,000/- for consuming alcohol

and specific statement was made that she was 16 years

old, when she was subjected to sexual act, the petitioner

subjected her for sexual act repeatedly, even two months

back also she was subjected for sexual act. Learned HCGP

also submits that subsequently when complainant

demanded to marry her, he also gave a punch to her and

medical evidence also shows that though it is not recent

sexual act but it suggests that the victim girl was

subjected for sexual act. Hence, there is a prima-facie

material against the petitioner both on medical evidence as

well as Section 164 of Cr.P.C., statement and also the fact

that the victim girl was a minor and the petitioner

subjected her for sexual act is not in dispute. Hence, it is

not a fit case to exercise discretion in favour of the

petitioner.

10. In reply to the arguments of learned HCGP,

learned counsel for the petitioner submits that the very

164 statement clearly discloses that both petitioner and

victim girl were loving each other. She went along with

him and now she is aged about 19 years at the time of

complaint and Court can take note of said fact for

consideration.

11. Having heard learned counsel on both sides

and on perusal of materials available on record, the two

points that arise for consideration of this Court are:

1) Whether the petitioner is entitled for

bail invoking the proviso under Section 173(1-

A) as contended by the petitioner?

2) Whether the petitioner has made

out grounds to enlarge him on bail for offence

invoked against him under Section 376, 417

of IPC and Section 4 and 6 of POCSO Act?

12. Point No.1: The main contention of the

learned counsel for the petitioner is that the proviso is

amended in 2018 fixing the time as two months for

investigation of the offence punishable under Section 376.

The said proviso prevails over Section 167(2) and not

Section 167 and the same mandates if the charge sheet is

not filed within two months, the accused may be enlarged

on bail. No doubt, amendment was made and the time

stipulation is mentioned under Section 173(1-A) in respect

of offence under Section 376 as well as other offences

under Sections 376A, 376B, 376C, 376D and Section 376E

of IPC and in respect of the said offences

investigation shall be completed within two months from

the date of information recorded by the officer in-charge of

the police station.

13. This court also would like to refer to the

proviso of Section 167(2)(i) wherein it is states that Ninety

days, where the investigation relates to an offence

punishable with death, imprisonment for life or

imprisonment for a term of not less than ten years, (ii)

Sixty days, where the investigation relates to any other

offence, and, on the expiry of the said period of ninety

days, or sixty days, as the case may be, the accused

person shall be released on bail..." .

14. After perusal of Section 173(1-A) as well as

167 of Cr.P.C., referred to above, this Court has to look

into the factual aspect of the case and in the case on hand

a specific allegation is made that the victim girl was 16

years old when she was subjected to sexual act promising

that he would marry her and also the other promise that

he is loving her and subjected her for sexual act and the

same has been reiterated by the victim in her 164

statement also. Learned counsel appearing for the

petitioner submits that the ingredients attracts Section 4 of

the Act and not Section 6 of the Act. Section 4 of the Act is

with regard to penetrative sexual assault that is

punishment for penetrative sexual act and same shall be

punished with imprisonment of either description for a

term which shall not be less than ten years as amended in

2019, but which may extend to imprisonment for life, and

shall also be liable to fine. Having read Section 4 of the

Act, it is clear that punishment shall not be less than ten

years, which may extend to imprisonment for life and this

Court has to take note of Section 3 of Act also while

invoking Section 4 of the Act, the same not says anything

about subjecting the victim girl who is below the age of 18

years for continuous sexual act.

15. This Court should also take note of Section 6

as regards aggravated penetrative sexual assault is

concerned, whoever taking advantage of child's mental

and physical disability and commits penetrative sexual

assault on the child and whoever commits penetrative

sexual assault on child more than once or repeatedly as

defined under Section 5(k) and also (l), it says it attracts

Section 6 of the Act. It is also very clear that whoever,

commits penetrative sexual assault on the child more than

once or repeatedly and hence, the very contention of the

learned counsel for the petitioner that it utmost attracts

Section 4 and not Section 6, cannot be accepted.

16. Now coming to the aspect of punishment

provided for the aggravated penetrative sexual assault

that rigorous imprisonment for a term which shall not less

than twenty years, but which may extend to imprisonment

for life, which shall mean imprisonment for remainder of

natural life of that person, and also be liable to fine or both

and severe punishment is provided for death also for the

offence punishable under Section 6 of the Act.

17. Now coming to the proviso to Section 167(2)(i)

of Cr.P.C., it says "ninety days, where the investigation

relates to an offence punishable with death, imprisonment

for life or imprisonment for a term of not less than ten

years" and under Section 6 of the Act, the punishment is

provided including death punishment, life imprisonment as

well as twenty years punishment, hence, the very

contention of learned counsel for the petitioner that

Section 173(1-A) of Cr.P.C., attracts and not Section 167

of Cr.P.C., to the case on hand cannot be accepted.

173(1-A) of Cr.P.C., is with regard to Section 376 and

other offences and the same is also the period fixed for

investigation and for default bail Section 167 of Cr.P.C., is

applied and not Section 173(1-A) as contended by learned

counsel for the petitioner.

18. The Court has to take note of very bringing of

special enactment and the same is brought to meet the

ends of justice when the IPC offences are not adequate to

protect the child within 18 years. Special enactment is

brought into force i.e., POCSO Act and the Court has to

take very note of object of special enactment. Hence, very

argument of learned counsel for the petitioner in respect of

Section 376 of IPC, time limit is only for two months and

the petitioner is entitled for bail cannot be accepted and

the Court has to read both the provisions of Section 167(2)

as well as Section 173(1-A) of Cr.P.C., conjointly and

interpret the law. Hence, the very contention of the

learned counsel for the petitioner that the petitioner is

entitled for bail invoking Section 173(1-A) of Cr.P.C.,

cannot be accepted and Section 167(2) of Cr.P.C., is

applicable when the punishment is provided under Section

6 of POCSO Act, which prescribes the punishment shall not

be less than 20 years i.e., rigorous imprisonment and the

same also extends for life imprisonment and also for death

and hence Section 167(2) of Cr.P.C., prevails not Section

173(1-A) as contended by the learned counsel for the

petitioner. Hence, I answer point No.1 in the negative.

19. Point No.2: Now coming to the aspect of

merits of the case is concerned, the very specific complaint

given before the police is that when victim was 16 years

old she was subjected to sexual act against her wish, also

the petitioner continued sexual act in his house as well as

gas godown and now he turned hostile. Now coming to

medical evidence available before the Court, the allegation

is also that she was subjected to sexual act even prior to

two months of giving complaint. No doubt, medical records

reveal that there is no suggestive recent sexual act, but

report is clear that she was subjected to sexual act.

Section 164 statement of the victim is clear that the

petitioner had forcible sexual act and also continuously

from the age of 16 years and no doubt, she has given

complaint when she attained the age of majority but she

was 16 years as on the date of offence and it goes back to

the date of offence and not the date of complaint. Hence,

very contention of the petitioner that she has given

complaint when she was 19 years old cannot be accepted.

20. The other contention of learned counsel for the

petitioner that this Court had granted bail in favour of

some of the accused persons in the similar circumstances,

which have been referred to above and on perusal of those

orders, it is clear that the victim girl has not supported the

case of the prosecution and also in her 164 of Cr.P.C.,

statement, and also when both of them married and after

marriage only they had sexual act. Under such

circumstances only this Court had granted bail in coming

to conclusion that at the most it attracts Child Marriage Act

and this Court having conscious about the very offence

committed against the child below the age of 18 years as

defined under Section 2(d) of the POCSO Act and very

object of special enactment and also no any order passed

when the victim supported under Section 164 of Cr.P.C.,

and medical evidence also supports the case of

prosecution. On prima-facie material this Court had earlier

also rejected bail petition and the orders referred to by the

learned counsel for the petitioner do not come to the aid of

the petitioner and having taken note of only peculiar

circumstances when the victim girl has not supported in

her 164 of Cr.P.C., statement, that victim girl has not

subjecting her for medical examination and also only when

prohibition of child marriage Act attracts, under such

circumstances, exercised discretion for grant of bail and

not exercised discretion when there is prima-facie material

against the accused subjecting her for sexual act when she

was minor as well as medical evidence suggested that she

was subjected to sexual act. Those orders also do not

come to the aid of the petitioner to grant bail.

21. Having considered materials available on

record more particularly, specific allegation made that she

was minor when she was subjected to sexual act and

medical evidence supports the case of the prosecution and

Section 164 statement also supports the case of the

prosecution and the petitioner has not made out any

grounds to exercise discretion to grant him bail and hence

discretion cannot be exercised in favour of the petitioner

by granting bail. Hence, I answer point No.2 also in the

negative.

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

the following:-

ORDER

The petition is rejected.

Sd/-

JUDGE

NMS