Miss Sunanda vs The State Of Karnataka By
2022 Latest Caselaw 11626 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 7 T H DAY OF SEPTEMBER, 2022

                         BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

        CRIMINAL APPEAL NO.1364 OF 2022

BETWEEN:

Miss. Sunand a
D/o Narayanapp a
Aged about 32 years
R/at Haraluru Villag e
Devanahalli Taluk
Bang alore Rural District-562110
                                             ...Appellant
(By Sri Balakrishna M.R., Advocate)

AND:

1.    The State of Karnataka by
      Devanahalli Police Station
      Beng aluru Rural District
      Represented by
      State Pub lic Prosecutor
      Hig h Court Build ing
      Beng aluru-560 001

2.    Mr. Mohan R.
      S/o Ramamurthy
      Aged about 26 years
      R/at Konag atta Villag e and post
      Kasab a Hobli
      Dodd ab allapura Taluk
      Beng aluru Rural District-561203
                                          ...Respondents
(By Sri K. Rahul Rai, HCGP for R1;
     R2 - served)
                                     :: 2 ::


       This    Criminal      Appeal       is    filed     under        Section
14(A)(2) of SC/ST (POA) Act read with Section 439(2)
of Cr.P.C. p raying to cancel the bail granted to the
respondent No.2 dated 20.07.2022 und er Section 439
of Cr.P.C. for the offence p unishab le und er Section
376,    504,     506      read    with    Section        34     of   IPC     and
Section       3(1)(r)(s),        3(1)(w)(i)(ii)      of       SC/ST     (POA)
Act    in   Crime        No.48/2022       dated      18.04.2022             (now
Spl.C.C.No.472/2022)              reg istered       by    the    respondent
No.1 police.

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

                             JUDGMENT

This appeal is filed under Section 14(A)(2) of

the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act ['SC/ST Act' for

short], challenging the order dated 20.07.2022 in

Crl.Misc.No.1277/2022 on the file of II Additional

District and Sessions Judge and Special Judge,

Bengaluru Rural District.

2. The accused applied for bail under

Section 439 of Cr.P.C., and since the court below :: 3 ::

granted bail, the prosecutrix i.e., respondent No.2

therein being aggrieved of the same, has preferred

this appeal.

3. Heard Sri M.R.Balakrishna, learned

counsel for the appellant and the learned High

Court Government Pleader for respondent No.1-

State. Respondent No.2 has been served with

notice, but he has not appeared before the court.

4. The facts are that on 18.04.2022, the

appellant made a report to the Sub-Inspector of

Police, Devanahalli police station that she came in

contact with the second respondent on

09.03.2021; the second respondent collected her

telephone number without her knowledge,

gradually acquaintance developed between them;

the second respondent took her to a hotel and had

intercourse without her consent and behaved very

cruel at that time. She also alleged that second

respondent took photos of her genital organs and :: 4 ::

used to blackmail her by using those photographs.

She alleged that second respondent threatened to

kill her in case she would disclose the same to

anybody else. The second respondent also forced

her to part with the money that she had and when

he repeatedly demanded for money, she refused

saying that she did not have money. At that time

the second respondent again threatened to post

the obscene photos on the social media and

therefore she yielded to him. There are also

allegations against other accused. The

investigation resulted in charge sheet being filed.

5. It is the argument of Sri M.R.Balakrishna

that the Special Court has erred in granting bail to

the second respondent. His argument is that the

learned Judge has mechanically decided to allow

the application without exercising judicial

discretion. His argument is that the Special Court

has expressed an opinion that the prosecution has :: 5 ::

not produced the photographs and thereby the

prosecution case is difficult to be believed. By

opining that the sexual act between the appellant

and the second respondent appear to be

consensual, the Special Court has virtually decided

the case on merits and thus these findings clearly

indicate that the Special Court has not exercised

the discretion properly. In view of these

circumstances, it is necessary that the appeal

should be allowed and the order of granting bail is

to be set-aside. In support of his arguments, he

has placed reliance on the judgments of the

Supreme Court in RAJESH RANJAN YADAV

ALIAS PAPPU YADAV V. CBI THROUGH ITS

DIRECTOR [(2007) 1 SCC 70] and KALYAN

CHANDRA SARKAR V. RAJESH RANJAN ALIAS

PAPPU YADAV AND ANOTHER [(2004) 7 SCC

528].

:: 6 ::

6. In para 6 of the impugned order, the

reasons assigned by the Special Court are

available. Learned Special Judge has observed

that the prosecution has not collected materials in

regard to photographs taken by the second

respondent and therefore the allegation that the

second respondent put threat to the appellant by

showing photographs is difficult to be believed. It

is further observed that first act of sexual act

between the complainant and the second

respondent took place in a hotel in May, 2021 and

the conduct of the appellant/complainant going to

the hotel along with second respondent appears to

be an act of intimacy between them and the

subsequent acts of indulging in sexual act appears

to be more of consensual. Though Special Court

has given reasons very briefly, it cannot be said

that the discretion has not been properly exercised

by the court below. Along with charge sheet a

few photographs have been produced and Sri :: 7 ::

M.R.Balakrishna submits that those were the

photographs available before the Special Court at

the time of deciding the bail application. Even

assuming that these photos were available, yet I

am of the opinion that there cannot be

interference with the impugned order.

7. If further reasons are to be given,

perusal of the statement of an independent

witness, Meenamma - CW3 shows that appellant is

working in the office of Deputy Commissioner.

Once the appellant took Meenamma to her house

situated in Hoysala apartment and at that time she

saw the second respondent in the house; when

Meenamma asked the appellant about him, the

appellant introduced that person as her husband.

The statement of this witness is sufficient to draw

an inference at this stage with regard to the

conduct of the appellant for deciding this appeal.

Therefore learned Special Judge is justified in :: 8 ::

drawing an inference at the time of deciding the

bail application that the act between the appellant

and the second respondent was more of

consensual. If the court expresses any opinion at

the stage of deciding the bail application, it is not

a final opinion. After completion of trial, evidence

has to be assessed independently without being

influenced by the orders passed on bail

application.

8. In Kalyan Chandra Sarkar (supra), the

Hon'ble Supreme Court has observed that the

court should exercise discretion in a judicious

manner while deciding the bail application and a

detailed examination of evidence and elaborate

documentation of the merit of the case need not

be undertaken. It is further held that there is a

need to indicate in such orders reasons for

concluding why bail was being granted particularly :: 9 ::

where the accused is charged of having committed

a serious offence.

9. In Rakesh Ranjan Yadav alias Pappu

Yadav (supra), at para 16, the Hon'ble Supreme

Court has observed that balance has to be struck

between the right to individual liberty and the

interest of society.

10. So, it is quite clear that reasons for

referring to these decisions by Sri M.R.Balakrishna

is to highlight that the court below has not

exercised the discretion properly and when there

is an allegation of rape on a woman, in the

interest of the society, the bail should not have

been granted.

11. There cannot be a second word in regard

to principles laid down by the Hon'ble Supreme

Court. But it is also a well established principle

that decision whether to grant or refuse bail is to

be taken on the facts of each case. In the given :: 10 ::

set of circumstances, as already observed, the

Special Judge might not have given detailed

reasons, but has given a very brief reasons that

the circumstances are indicative of consensual

sexual intercourse. The discretion appears to have

been exercised properly. I do not find any merit

in this appeal. Therefore it is dismissed.

12. The observations made in this order shall

not prejudice the mind of the Special Court if for

any other reason the appellant files one more

application for cancellation of bail.

Sd/-

JUDGE

Kmv/-