Sri Nagendra Prasad vs The State By Bagepalli Police
2023 Latest Caselaw 1228 Kant

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                                                         CRL.A No. 120 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 9TH DAY OF FEBRUARY, 2023

                                            BEFORE
                   THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                               CRIMINAL APPEAL NO. 120 OF 2023
                   BETWEEN:

                        SRI NAGENDRA PRASAD
                        S/O SHRI NARAYANA SWAMY
                        AGED ABOUT 35 YEARS
                        R/A KADIRANNAGAPALLI
                        BAGEPALLI TALUK
                        DISTRICT CHIKKABALLAPUR-561207

                                                                 ...APPELLANT

                   (BY SRI. DEEPAK J., ADVOCATE)

                   AND:

                   1.   THE STATE BY BAGEPALLI POLICE
                        REPRESENTED BY SPP
                        HIGH COURT OF KARNATAKA
Digitally signed        BANGALORE-561207
by SANDHYA S
Location: HIGH     2.   MISS XXX
COURT OF
KARNATAKA               D/O LATE CHOWDAPPA,
                        AGED ABOUT 15 YEARS,
                        AS CLAIMED BY THE PROSECUTION
                        REP. BY HER MOTHER NAGARATHANAMMA
                        MAJOR
                        R/A KADIRANNAGAPALLI
                        BAGEPALLI TALUK
                        DISTRICT CHIKKABALLAPUR-561207
                                                             ...RESPONDENTS

                   (BY SRI. S.VISWAMURTHY, HCGP FOR R-1,
                    R-2 -SERVED & UNREPRESENTED)
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                                          CRL.A No. 120 of 2023




     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14(A)
(2) OF SC/ST (POA) ACT, BY THE ADVOCATE FOR THE
APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO a) SET ASIDE THE ORDER DATED 28.12.2022
PASSED IN CR.NO.593/2022 (BAGEPALLI POLICE STATION)
ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS
JUDGE, FTSC-1, (POCSO), CHIKKABALLAPURA. b) GRANT
BAIL IN CR.NO.593/2022 (BAGEPALLI POLICE STATION) ON
THE FILE OF ADDITIONAL DISTRICT AND SESSIONS JUDGE,
FTSC-1, (POCSO), CHIKKABALLAPURA FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 504 AND 506 OF IPC,
SECTIONS 8 AND 12 OF PROTECTION OF CHILDREN FROM
SEXUAL OFFENCES ACT AND SECTION 3(1)(w) OF SC/ST
(POA) ACT BEFORE THE BAGEPALLI POLICE STATION.


     THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                          JUDGMENT

This appeal is filed by the sole accused seeking

setting aside the order dated 28.12.2022 passed by the

Additional Sessions Judge, FTSC-I (POCSO)

Chikkaballapura, whereunder bail application of the

appellant/accused sought in respect of Crime No.593/2022

of Bagepalli Police Station for the offence under Sections

504, 506 of IPC and Sections 8 and 12 of Protection of

Children from Sexual Offences Act and Section 3(1)(w) of

Scheduled Caste and Scheduled Tribe(POA) Act, came to

be rejected.

CRL.A No. 120 of 2023

2. Heard learned counsel appearing for the

appellant/accused and learned HCGP for respondent No.1.

Inspite of service of notice respondent No.2 remained

absent and unrepresented.

3. The case of the prosecution is that the victim girl

has filed a complaint stating that on 17.12.2022 when

victim was alone in the house at about 4.30 P.M. when she

was sweeping in the front yard of her house, the

appellant/accused came near her house and the victim girl

told him not to come near her house and she would

telephone to her mother enraged by the said words the

appellant/accused held her hand and pushed her to the

wall, when the victim tried to scream he warned her not to

scream and closed her mouth by one hand then he

removed her veil, touched her chest and tried to kiss her.

When the victim girl tried to scream the neighbours came

and rescued her and scolded the appellant and sent him

away. Said complaint came to be registered in Crime

No.593/2022 for the aforesaid offences.

CRL.A No. 120 of 2023

4. The appellant/accused came to be arrested on

21.12.2022 and he is in judicial custody.

5. The appellant/accused filed bail application and

the same came to be rejected by the impugned order

dated 28.12.2022 which is challenged in this appeal.

6. Learned counsel for the appellant would contend

that there is no allegation of forcible sexual intercourse on

the victim girl by this appellant/accused. The offences

alleged against the appellant/accused are not punishable

either with death or imprisonment for life. Only one of the

offence alleged under Section 506 of IPC provided with

the punishment of imprisonment which may extend to

seven years and fine. Charge sheet is filed and now case

is registered against the appellant in Spl.C.C.No.112/2023

pending on the file of Sessions Judge. When charge sheet

is filed accused is not required for custodial interrogation.

Without considering these aspects, the learned Special

Judge has passed the impugned order which requires

CRL.A No. 120 of 2023

interference by this court. With this he prayed to allow

the appeal and grant bail to the appellant/accused.

7. Per contra, learned HCGP for respondent No.1

contends that the date of birth of the victim girl is

29.09.2008 and she is aged about 14 years three months.

The doctor who has examined the victim girl has noted

that the hymen is intact. The appellant/accused as per the

case of the prosecution has committed sexual assault on

the victim girl. There is a prima facie case against the

accused for the offences alleged against him. Considering

these aspects the trial court has passed the impugned

order which does not call for interference by this court.

With this he prayed to dismiss the appeal.

8. As per the averments of the complaint, the victim

girl is aged 15 years and she is studying in 9th Standard.

There is no allegation that the appellant/accused has

committed the alleged offence only on the ground that the

victim girl belongs to Scheduled Caste. What is alleged

CRL.A No. 120 of 2023

against the appellant/accused is that he threatened the

victim girl, pushed her, closed her mouth, removed her

veil, touched her chest and tried to kiss her and persons

gathered rescued the victim girl and scolded the

appellant/accused. There is no allegation of any forcible

sexual intercourse by this appellant on the victim girl. The

doctor who has examined the victim girl has noted that

her hymen is intact. The offences alleged against

appellant are not punishable with death or imprisonment

for life. As charge sheet is filed appellant is not required

for custodial interrogation. Without considering these

aspects Sessions Judge has passed impugned order which

requires interference by this court. Appellant has made out

grounds for setting aside the impugned order and granting

bail subject to conditions.

Hence, I proceed to pass the following:

ORDER

Appeal is allowed. Impugned order dated 28.12.2022

passed in Crime No.593/2022 by Additional Sessions

CRL.A No. 120 of 2023

Judge, FTSC-I (POCSO) Chikkaballapura is set aside.

Consequently appellant/accused is granted bail and

ordered to be released on bail in Crime No.593/2022 of

Bagepalli police station subject to following conditions:

1. Appellant/accused shall execute a personal bond for

a sum of Rs.1,00,000/- with a surety for the

likesum to the satisfaction of trial court.

2. Appellant/accused shall attend the court on all

dates of hearing unless exempted till disposal of the

case.

3. Appellant/accused shall not tamper prosecution

witnesses.

Sd/-

JUDGE

SBN