Sri Manjunatha (A2) vs The State Of Karnataka
2023 Latest Caselaw 6903 Kant

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                                                             NC: 2023:KHC:35618
                                                          CRL.A No. 657 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 3RD DAY OF OCTOBER, 2023

                                               BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                  CRIMINAL APPEAL NO. 657 OF 2023
                      BETWEEN:

                            SRI MANJUNATHA (A2)
                            S/O NANJUNDAPPA
                            AGED ABOUT 25 YEARS
                            R/O PATHABAGEPALLI
                            BAGEPALLI TALUK
                            CHIKKABALLAPUR DISTRICT - 571 207.
                                                                   ...APPELLANT
                      (BY SRI. ABHILASH KUMAR M.N, ADVOCATE FOR
                          SRI. M.R. NANJUNDA GOWDA, ADVOCATE)
                      AND:

                      1.    THE STATE OF KARNATAKA
                            BY BAGEPALLI POLICE,
                            CHIKKABALLAPUR DISTRICT
                            REP BY STATE PUBLIC PROSECUTOR
                            HIGH COURT BUILDINGS
Digitally signed by
                            BENGALURU - 560 001.
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH        2.    SMT. ANASUBAI
COURT OF                    WARDEN
KARNATAKA
                            CDPO OFFICE
                            BAGEPALLI TOWN
                            CHIKKABALLAPUR DISTRICT - 561 207.
                                                                 ...RESPONDENTS
                      (BY SRI. RANGASWAMY R, HCGP FOR R1;
                          R2 SERVED AND UNREPRESENTED)

                           THIS CRL.A. IS FILED U/S.14(A)(2) OF SC/ST (POA) ACT
                      FILED BY THE ADVOCATE FOR THE APPELLANT PRAYING TO
                      SET ASIDE THE BAIL ORDER DATED 28.11.2022 PASSED IN
                      CRL.MISC.NO.709/2022 ON THE FILE OF THE ADDITIONAL
                      DISTRICT AND SESSIONS COURT FTSC-1 CHIKKABALLAPURA
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                                                NC: 2023:KHC:35618
                                          CRL.A No. 657 of 2023




DISTRICT    AND ALLOW THE APPEAL AND RELEASE THE
APPELLANT ON REGULAR BAIL FOR ALLEGED OFFENCE
P/U/S.376(3),506 OF IPC AND SEC.4,6,8,12,14 OF POCSO ACT
2012 AND SEC.67(B) OF INFORMATION ACT 2000 AND
U/S.3(1)(w),3(2)(v)  OF   PREVENTION     OF   ATROCITIES
AMENDMENT ACT 1989.

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

                          JUDGMENT

This appeal is filed by the appellant/accused No.2

seeking to set aside the order dated 28.11.2022 passed in

Crl.Misc.No.709/2022 by the learned Additional Sessions

Judge & Fast Track Special Court-1 (POCSO),

Chikkaballapura, whereunder the bail application of this

appellant/accused No.2 sought in respect of Crime

No.157/2022 of Bagepalli Police Station for the offences

punishable under Section 376(3), 506 of Indian Penal

Code, and Sections 4,6,8,12 and 14 of Protection of

Children from Sexual Offences Act, 2012 and Section

3(1)(w) and Section 3(2)(u) of the Schedule

Cast/Schedule Tribe (prevention of Atrocities) Act, 1989

came to be rejected.

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2. Heard learned counsel for the appellant/accused

No.2 and learned High Court Government Pleader for

respondent No.1/State. In spite of service of notice to

respondent No.2/Complaiant remained absent and

unrepresented.

3. The case of the prosecution is that, respondent

No.2 - Child Development Project Officer, Bagepalli Town,

has filed a complaint stating that she has recorded the

statement of the victim girl, wherein the victim has stated

that, on 11.04.2022, she travelled from Hongasandra to

Bagepalli and wrote Science SSLC exam and returned at

about 2.30 p.m. to Bagepalli bus stand. At that time,

accused No.1-Narayanaswamy made a phone call to her

and she told him that she is in bus stand. At that time,

accused No.1 - Narayanaswamy and accused No.2-

Manjunath picked her on two wheeler, wherein the

accused No.2-Manjunath drove the vehicle and accused

No.1-Narayanaswamy sat in-between accused No.2-

Manjunath and victim girl and went to Akkammagari

Temple, on the top of the hill at Pathabageppali village and

NC: 2023:KHC:35618 CRL.A No. 657 of 2023

thereafter, accused No.2-Manjunath came down and after

some time, he made a call to accused No.1 stating that his

vehicle is broke down and he has to repair it. Thereafter,

Narayanaswamy went again to the victim at about 3.30

p.m. When accused No.1-Narayanaswamy was having a

sexual intercourse with the victim, at that time, friends of

accused No.2 viz., Raju-accused No.3 and Suresh-accused

No.4, came there. At that time, accused No.1 -

Narayanaswamy got up and wore his clothes and accused

No.3 took photos and videos of the victim when she is in

the naked state and also asked her to come with them

and they will also look after her and told her that they will

also do what accused No.1 Narayanaswamy did to her. At

that time, accused No.4 Suresh threatened her telling that

if she did not cooperate, they will upload her naked photos

and videos on WhatsApp and YouTube. At that time,

accused No.2-Manjunath also came there and told her to

cooperate to three of them and at that time, accused

No.1-Narayaswamy scolded them and accused No.3

touched her thighs and at that time, Narayanaswamy went

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and called the village people, who came and scolded them

and brought the victim to Pathabagepalli village and

thereafter, the victim was brought to Women Police

Station.

4. The said complaint came to be registered in

Crime No.157/2022 of Bagepalli Police Station for the

offences punishable under Sections 376(3), 506 of Indian

Penal Code and Sections 4, 6, 8, 12 and 14 of Protection

of Children from Sexual Offences Act, 2012.

5. The Investigating Officer after completing the

investigation, filed the charge sheet against accused Nos.1

to 4 for the offences punishable under Sections 376(3),

506 of IPC and Sections 4, 6, 8, 12 and 14 of Protection of

Children from Sexual Offences Act, 2012 and Section

67(B) of Information Technology Act, 2000 and Sections

3(1)(w), 3(2)(v) of Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989.

6. The appellant/accused No.2 came to be

arrested on 12.04.2022 and he is in judicial custody. The

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appellant/accused No.2 filed Crl.Mis.No.709/2022 seeking

bail and same came to be rejected by impugned order

dated 28.11.2022. The said order is challenged in this

appeal.

7. Learned counsel for the appellant/accused No.2

would contend that there is no allegations of having sexual

intercourse by this appellant/accused No.2 and only

allegation against this appellant/accused No.2 is that he

forced the victim girl to have sexual intercourse and

accused Nos. 2 to 4 touched her private part. It is further

submitted that accused No.4 who is similarly placed to

that accused No. 2 has been granted bail in

Crl.A.No.2181/2022 by this Court. Therefore, on the

ground of parity this appellant/accused No.2 is entitled for

grant of bail. As charge sheet is filed appellant/accused

No.2 is not required for custodial interrogation. Without

considering these aspects the learned Sessions judge has

passed the impugned order which requires interference by

this Court. With this, he prayed to allow the appeal and

grant bail to the appellant/accused No.2.

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8. Per contra, learned High Court Government

Pleader for respondent-State would contend that the

statement of victim girl has been recorded by the police

and also under Section 164 of Cr.P.C, wherein the

overacts of this appellant/accused No.2 are stated. This

appellant/accused No.2 forced the victim girl to have

sexual intercourse and touched her private part. There

are eye witnesses to the incident who are cited as CW-6 to

Cw-9. The victim girl is aged about 16 years and she

belongs to schedule caste. He further submitted that the

charge sheet materials also prima facie show a case

against this appellant/accused No.2 for the offences

alleged against him. Considering all these aspects learned

Session Judge has passed the impugned order which does

not call for interference by this Court. With this he prays to

dismiss the appeal.

9. Having heard submissions of the learned

counsel for the appellant/accused No.2 and Learned High

Court Government Pleader, this Court has gone through

the impugned order and charge sheet papers.

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10. The statement of victim girl recorded on

11.04.2022 reveal that after accused No.1 had sexual

intercourse with the victim girl, accused Nos.3 and 4 went

there and accused No.3 took photos and videos when the

victim was half naked and accused No.3 touched her

thighs and asked her to cooperate for sexual intercourse.

At that time, accused No.2 also came and he forces the

victim girl for sexual intercourse and all accused Nos. 2 to

4 touched her private part. The statement of victim girl

has also been recorded under Section 164 of Cr.P.C. The

allegations against this appellant/accused No.2 and

accused No.4 who had been granted bail are similar.

Therefore, this appellant/accused No.2 entitled for grant of

bail on the ground of parity. As charge sheet is filed

appellant/accused No.2 is not required for custodial

interrogation. Without considering these aspects the

learned Sessions Judge passed the impugned order, which

calls for interference by this Court.

11. The appellant has made out grounds for setting

aside the impugned order and granting bail to the

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appellant/accused No.2, subject to terms and conditions.

Hence, I proceed to pass the following:

ORDER

The Criminal Appeal is allowed.

The impugned order dated 28.11.2022 passed in

Crl.Misc.No.709/2022, by the learned Additional Sessions

Judge & Fast Track Special Court-1 (POCSO),

Chikkaballapura, is set aside. Consequently, the

appellant/accused No.2 is granted bail and ordered to be

released on bail in Crime No.157/2022 of Bagepalli Police

Station subject to the following conditions:

i. The appellant/accused No.2 shall execute a personal

bond for a sum of Rs.1,00,000/- (Rupees One Lakh

only), with one surety for the likesum to the

satisfaction of the jurisdictional Court.

ii. The appellant/accused No.2 shall not indulge in

tampering the prosecution witnesses.

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iii. The appellant/accused No.2 shall attend the Court on

all dates of hearing unless exempted and co-operate

in speedy disposal of the case.

Sd/-

JUDGE

DSP