Vinodachar vs State Of Karnataka
2023 Latest Caselaw 2175 Kant

                                                     -1-
                                                             CRL.A No. 244 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 11TH DAY OF APRIL, 2023

                                                 BEFORE
                       THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                  CRIMINAL APPEAL NO. 244 OF 2023


                      Between:

                      Vinodachar
                      S/o. Ramachandrachari
                      Aged about 35 years,
                      R/at Shanthala Nagara,
                      Hagare Village,
                      Belur Taluk-573 115
                      Hassan District.
                                                                        ...Appellant
                      (By Sri B.Chethan, Advocate)

                      And:

                      1.    State of Karnataka
Digitally signed by         By Halebeedu Police
SRIDEVI S                   Haleebedu, Belur Taluk-573 115
Location: HIGH              Hassan District
COURT OF
KARNATAKA                   Represented by
                            State Public Prosecutor,
                            High Court of Karnataka
                            Bengaluru-560 001.

                      2.    Xxx (Victim Girl)
                            D/o. Paramesha
                            Aged about 16 years,
                            Since Minor
                            Represented by Natural Guardian and
                            Mother Smt. Padma
                            W/o. Paramesha
                            Major,
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                                         CRL.A No. 244 of 2023




    Both are R/at Shanthala Nagara,
    Madihalli Village, Hagare Village,
    Belur Taluk-573 115
    Hassan District
                                                 ...Respondents
(By Sri K.Rahul Rai, HCGP for R1;
 R2 (Minor Girl)-served on
 natural guardian-unrepresented.)

      This Crl.A. is filed u/s 14(A)(2) SC/ST (POA) Act, praying
to set aside the order dated 13.01.2023 passed by the
Additional District and Sessions Judge, FTSC-1 at Hassan in
Spl.C.No.483/2022, whereby the application of the appellant
filed under Sec.439 of Cr.P.C. seeking regular bail came to be
dismissed as per Annexure-B.


      This Criminal Appeal coming on for admission, this day,
the court delivered the following:


                          JUDGMENT

Heard the learned counsel for the appellant and the

Government Pleader for respondent no.1.

2. This is an appeal filed under section 14(A) of the

Schedule Castes and Schedule Tribes (Prevention Of

Atrocities) Act, challenging the order dated 13.1.2023

passed by the Sessions Judge, Hassan rejecting the

appellant's application under section 439 Cr.P.C.

CRL.A No. 244 of 2023

3. On earlier occasion this court rejected

Crl.A.No.1517/2022 filed by the appellant. It was at the

stage of FIR, and investigation was still pending. The

appellant was directed to approach the Sessions Court

once again with an application for bail based on the charge

sheet. The appellant accordingly applied for bail and the

court below rejected the application by the impugned

order. The charge sheet is now filed for the offences under

sections 323, 448, 354(B) IPC and sections 8 and 12 of

Protection Of Children from Sexual Offences Act ('POCSO

Act' for short). In the charge sheet there are allegations

against the appellant that he failed in his attempt to

subject the victim girl to sexual intercourse and for this

reason charge sheet appears to have been filed for the

offences under section 8 and 12 of POCSO Act.

4. Learned counsel for the appellant refers to the

complaint and the statement given by the victim girl under

section 164 Cr.P.C. to argue that the victim appears to

have made some improvements while giving statement

CRL.A No. 244 of 2023

before the Magistrate. Comparing the two statements, it

can be stated that in the first information dated 5.7.2022,

the girl does not state anything about her being taken

inside the room and attempt being made by the appellant

to commit rape. But in her 164 statement, she has given

narration of certain events which do not find a place in the

first report given to the police. The medical evidence only

shows the attempt. For the offence under section 8 of

POCSO Act, the maximum punishment that can be

imposed is five years imprisonment and for the offence

under section 12 of the POCSO Act, the sentence of

imprisonment may extend up to three years. In this view

of the matter, the trial court ought to have exercised

discretion properly. The reasons assigned by the trial

court cannot be accepted. It is not the case of the

respondent that the appellant is not available for trial. In

this view of the matter appeal is allowed. Impugned order

is set aside. The application under section 439 Cr.P.C. is

allowed. Hence the following :

CRL.A No. 244 of 2023

ORDER

Appeal is allowed.

The order passed by the Additional District and Sessions Judge and FTSC-I, Hassan dated 13.01.2023 in Spl.Case.No.483/2022 is set aside.

The appellant is admitted to bail on obtaining from him a bond for Rs.2,00,000/- (Rupees Two Lakhs only) and two sureties for the likesum 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 once

CRL.A No. 244 of 2023

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.

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JUDGE

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