S Rashmi vs State Of Karnataka
2023 Latest Caselaw 11376 Kant

Karnataka High Court

S Rashmi vs State Of Karnataka on 21 December, 2023

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                  CRL.A No. 1912 of 2023
                                             C/W CRL.P No. 10517 of 2023



                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 21ST DAY OF DECEMBER, 2023

                                        BEFORE
                       THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
                           CRIMINAL APPEAL NO. 1912 OF 2023
                                            C/W
                         CRIMINAL PETITION NO. 10517 OF 2023


                BETWEEN:

                1.   S. RASHMI
                     D/O SHASHIDHARA,
                     AGED ABOUT 26 YEARS,
                     SJM MUTT, M K HATTI,
                     CHITRADURGA-577526.
                                                 ...APPELLANT/PETITIONER
                                                             (COMMON)
                (BY SRI. C.V.NAGESH, SR. ADVOCATE FOR
                      SRI. HONNAPPA S.,ADVOCATE)
                AND:
Digitally
signed by       1.   STATE OF KARNATAKA
LAKSHMI T            BY RURAL POLICE STATION,
Location:            CHITRADURGA-577526.
High Court of        REPRESENTED BY
Karnataka            STATE PUBLIC PROSECUTOR,
                     HIGH COURT OF KARNATAKA,
                     BENGALURU-560001.

                2.   SRI CHANDRAKUMAR C
                     S/O CHAJJEGOWDA,
                     AGED ABOUT 40 YEARS,
                     LEGAL CUM PROBATION OFFICER
                     DISTRICT CHILD PROTECTION UNIT
                     NO.CA-15-17, ANJANADRI
                     MAIN ROAD, 4TH STAGE,
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                                     CRL.A No. 1912 of 2023
                                C/W CRL.P No. 10517 of 2023



     II GHATTA, VIJAYANAGAR,
     MYSURU-570017.

3.   D.RAJAPPA
     S/O. DYAMMANNA
     AGED ABOUT 49 YEARS,
     TELEPHONE OFFICE ROAD
     CHALLAKERE TALUK.

     PERMANENT RESIDENT OF
     BHOMMASANDRA VILLAGE,
     CHALLAKERE TALUK
     CHITRADURGA DISTRICT-577501.

4.   YESHWANTH KUMAR
     FATHER NAME NOT KNOWN
     MAJOR IN AGE
     R/AT JAYALAKSHMI MILL
     GAREHATTI,
     CHITRADURGA TALUK AND DISTRICT
     CHITRADURGA-577501.
                                             ...RESPONDENTS
                                                 (COMMON)


(BY SMT. SOWMYA R., HCGP FOR 1/STATE, NOTICE NOT
ORDERED TO R2 IN CRL.A NO.1912/2023; R2 SERVED BUT
UNREPRESENTED IN CRL.P.10517/2023; SRI. SRINIVAS D.C.
FOR R3; V/O. DATED 13.12.2023 NOTICE TO R4 IS DISPENSED
WITH IN CRL.A.NO.1912/2023; SRI. DEEPA J., FOR R4 IN
CRL.P.NO.10517/2023)


     THIS CRL.A. FILED U/S 14(A)(2) OF SC/ST (POA) ACT,
2015 PRAYING TO SET ASIDE THE ORDER DATED 28.03.2023
IN CRL.MISC.NO.233/2023 PASSED BY SPECIAL 2ND ADDL.
DISTRICT AND SESSIONS JUDGE, CHITRADURGA AND
CONSEQUENTLY ENLARGE THE APPELLANT / ACCUSED NO.2,
ON BAIL IN SPL.C. NO.181/2022(CR.NO.387/2022) OF
CHITRADURGA RURAL POLICE STATION, CHITRADURGA
DISTRICT, FOR THE OFFENCES P/U/S 17, 5(L), 6 OF THE
POCSO ACT, 2012, SEC. 376(2)(n), 376(DA), 376(3), 201,
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                                 CRL.A No. 1912 of 2023
                            C/W CRL.P No. 10517 of 2023



202, 560 R/W 34 AND 37 OF IPC, SEC., 3(1)w(1)(2),
3(2)(v)(va) OF SC/ST (POA) ACT, SEC. 3(f) AND 7 OF
RELIGIOUS INSTITUTION (PREVENTION OF MISUSE) ACT,
1988 AND SEC. 75 OF THE JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) ACT, PENDING ON THE FILE OF
HONBLE 2ND ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHITRADURGA.


     THIS CRL.P. FILED U/S 439 OF CR.P.C., PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN CR.NO.387/2022 OF
CHITRADURGA RURAL POLICE STATION, CHITRADURGA
DISTRICT, FOR THE OFFENCES P/U/S 17, 5(L), 6 OF THE
POCSO ACT, 2012, SEC. 376(2)(n), 376(DA), 376(3), 201,
202, 560 R/W 34 AND 37 OF IPC, SEC. 3(f) AND 7 OF
RELIGIOUS INSTITUTION (PREVENTION OF MISUSE) ACT,
1988 AND SEC. 75 OF THE JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) ACT, PENDING ON THE FILE OF
HONBLE 2ND ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHITRADURGA IN SPL.C.NO.182/2022.


    THE APPEAL AND PETITION ARE COMING ON FOR
ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

Both these matters arise out of Crime No.155/2022

of Nazarbad Police Station, Mysuru City which was

transferred to Chitradurga Rural Police Station,

Chitradurga and numbered as Crime No.387/2022.

2. Crime was registered on a complaint of legal

cum probation Officer, District Child Protection Unit,

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against four accused persons for the offence punishable

under Section 17, 5(l), 6 of Protection of Children from

Sexual Offences Act, 2012 and Section 376(2)(n), 376(3)

r/w 149 of IPC. On completion of investigation two

separate charge sheets came to be filed in view of two

victims involved in the case, wherein one of the victim

belong to scheduled caste.

3. Against the appellant/petitioner, charge sheet

was filed for the offence punishable under Section 376DA,

372, 366, 323, 504 R/W 34 and 37 of IPC, Section 6 r/w

17 of POCSO Act, 2012, Section 3(1)(w)(1)(2),

3(2)(v)(va) of SC/ST (POA) Act, 1989 and Section 75 and

77 of Juvenile Justice (Care and Protection of Children)

Act, 2015 in respect of the offence committed against one

of the victim. Second charge sheet was filed for the

offence punishable under Sections 376DA, 372, 366, 323,

504 R/W 34 and 37 of IPC, Section 6 r/w 17 of POCSO

Act, 2012 and Section 75 and 77 of Juvenile Justice (Care

and Protection of Children) Act, 2015.

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4. Two separate applications were filed under

Section 439 of Cr.P.C. to enlarge accused No.2 on bail

before the trial Court. The learned Sessions Judge by

separate orders, rejected both the applications.

5. Criminal Appeal No.1912/2023 is preferred

against the order dated 28.03.2023 passed by the learned

Sessions Judge in Criminal Misc No.233/2023 and criminal

petition No.10517/2023 is preferred against the order

dated 13.03.2023 passed by the learned Sessions Judge in

Criminal Misc No.128/2023.

6. Heard the learned Senior counsel appearing for

the appellant/petitioner, the learned High Court

Government pleader appearing for the State and the

learned counsel appearing for the victims. Perused the

material on record.

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7. Brief facts of the case:- FIR was registered by

Nazarbad Police Station, Mysuru in Crime No.155/2022,

wherein it is stated that the two minor victims aged about

16 and 15 years respectively are the inmates of one

Akkamahadevi Hostel run by Murughamutt, Chitradurga.

It is alleged that the said victims were subjected to sexual

assault by accused No.1, the chief pontiff, supported by

accused No.2 - warden, junior pontiff - accused No.3 in

the FIR and a lawyer by name Sri Gangadharaiah -

accused No.5 in the FIR. Both the victims were produced

before the Child Welfare Committee. Pursuant to the

registration of the said FIR, case was transferred to

Chitradurga Rural Police Station on the point of territorial

jurisdiction and separate FIR was registered.

8. Appellant/petitioner, accused No.2 was arrested

on 02.09.2022 and she was remanded to judicial custody.

After investigation separate charge sheets were filed as

noted earlier against accused Nos.1 to 3 namely the Chief

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pontiff, the present accused and the Junior pontiff accused

No.4 shown in the FIR. The remaining accused in the FIR

were dropped while filing the charge sheet.

9. The charge sheet allegations are that accused

No.1 the Chief Pontiff of one Sri Jagadhguru

Murugharajendra Mutt in Chitradurga was running

Akkamahadevi Hostel of the said mutt and accused No.2

was the warden of the said hostel. It is alleged that when

accused No.1 was alone in the bed room, accused No.2

used to send the victims to his room and accused No.1

was giving them some chocolates, after consuming which,

the victims would become unconscious and thereafter,

accused No.1 was committing sexual assault on them.

10. The learned Senior counsel has furnished copies

of the bail orders passed by the coordinate Bench of this

Court in respect of accused Nos.1 and 3. This Court in

criminal petition No.5031/2023 connected with criminal

appeal No.1230/2023 vide order dated 08.11.2023 has

enlarged accused No.1 on bail after an elaborate

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discussion and similarly accused No.3 was enlarged on bail

in criminal appeal No.65/2023 vide order dated

13.10.2023.

11. The main allegations of committing sexual

assault on the two victims are against accused No.1. It is

the case of prosecution that accused No.2 working as a

warden of Akkamahadevi hostel run by Murughamutt,

Chitradurga used to send the victims to the room of

accused No.1 with a knowledge that the said victims would

be subjected to sexual assault. The allegations against

accused No.3 is that even the said accused used to send

the victims to the bed room of accused No.1 and thus

supported accused No.1 to commit sexual assault against

the minor victims.

12. The learned Senior counsel drawing the

attention of the Court to the medical opinion furnished in

respect of the two victims has contended that as per the

said reports there is no evidence of commission of sexual

assault against the minor victims. He contends that

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accused Nos.1 and 3 are already enlarged on bail and

therefore, the present accused is also entitled for the same

benefit.

13. The learned counsel appearing for

respondent/victims on the other hand has contended that

the statements of the victims and the history furnished

before the doctor clearly shows that the victims were

subjected to sexual assault and accused No.2 being the

warden of the hostel has abetted the commission of the

offence by accused No.1. It is contended that the offence

committed by the accused being serious in nature, she is

not entitled for the relief sought.

14. The allegations against the present accused and

accused No.3 are similar. It is useful to refer to para 10 of

the order passed by this Court in criminal appeal

No.65/2023, which is extracted here under:

10. The offences alleged against accused No.1 is under sections 5(l) and 6 of the POCSO Act. The POCSO Act provides extreme penalty

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for the said offence. If any person abetted commission of the said offences, the punishment provided for the abetment is same that of the punishment provided for the offence under Section 6 of the POCSO Act. On medical examination of CWs.1 and 2, it is found that their hymen is intact. Section 5(l) punishable under Section 6 of the POCSO Act is for aggravated penetrative sexual assault. As the hymen of the victim girls are intact, at this stage, it cannot be said that there was an aggravated penetrative sexual assault on the victim girls. The said aspect can be ascertained at the trial. This appellant - accused No.3 is charged for the offence of abetment for accused No.1 to commit the offence punishable under Section 6 of the POCSO Act. The said aspect that accused No.1 has committed the penetrative sexual assault on the victim girls and this appellant -accused No.3 abetted commission of the said offence is a matter of trial. Merely because the appellant - accused No.3 is an influential person, is not a ground to keep him in custody as a pre-trial punishment till conclusion of the trial, wherein the prosecution has to examine 84 witnesses and further proceedings

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are stayed at present. The appellant - accused No.3 is in custody for more than one year and as the charge sheet is filed he is not required for the custodial interrogation. The apprehension of the prosecution that, if the appellant - accused No.3 is granted bail, there is a threat to the prosecution witnesses, can be met with by imposing stringent conditions. Considering all these aspects, the appellant - accused No.3 has made out grounds for setting-aside the impugned order and grant of bail.

15. Accused No.2 is a woman. She is in custody

from the date of her arrest i.e., 02.09.2022. Investigation

is completed and charge sheet is filed. She is not required

for any further interrogation/investigation.

16. In the above facts and circumstances,

appellant/petitioner, accused No.2 is entitled for the relief

sought in both the cases. Accordingly, the following:

ORDER

i. Criminal Appeal No.1912/2023 and Criminal Petition No.10517/2023 are allowed.

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ii. The order dated 28.03.2023 passed by the Court of Special, II Additional District and Sessions Judge, Chitradurga in Criminal Misc.No.233/2023 is set aside.

iii. Accused No.2 in Spl.C. (POCSO) No.181/2022 and Spl.C.(POCSO) No.182/2022 pending on the file of Special, II Additional District and Sessions Judge, Chitradurga is directed to be released on bail subject to following conditions:

1. Accused No.2 shall execute two separate bonds each for Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the Special Court.

2. She shall furnish her address proof and shall inform the Court, if there is any change in the address.

3. She shall not tamper with the prosecution witnesses in any manner.

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4. She shall not try to induce or influence the victims either directly or indirectly.

5. She shall appear before the trial Court on all dates of hearing, unless exempted for any genuine reasons and shall cooperate for the early disposal of the case.

6. The trial Court is at liberty to impose any other suitable conditions, which it may deem fit.

Sd/-

JUDGE

HB