Paramashivaiah A J vs State Of Karnataka
2023 Latest Caselaw 7265 Kant

                                   1




      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF OCTOBER, 2023

                                 BEFORE

     THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR

               CRIMINAL APPEAL No. 65/2023

BETWEEN :
--------------
Paramashivaiah A J
S/o Jayadevaiah
Aged about 59 years
SJM Vidyapeeta sector
Near P & T Quarters
Holalkere Road
Chitradurga Town
PIN - 577 526.
                                          ... APPELLANT

(By Sri C V Nagesh, Senior counsel for
 Sri K B K Swamy, Advocate)

AND :
-------
1.     State of Karnataka
       By Rural Police Station
       Chitradurga
       PIN - 577 526.

      Represented by
      State Public Prosecutor
      High Court of Karnataka
      Bengaluru.

2.    Sri Chandrakumar C
      S/o Chajjegowda
                                 2




     Aged about 40 years
     Legal cum Probation Officer
     District Child Protection Unit
     No.CA-15-17, Anjanadri
     Main Road, 4th Stage
     II Ghatta, Vijayanagara
     Mysuru - 570 017.

3.   XYZ
     Represented by Rajappa(father)
     D/o Rajappa
     Aged about 16 years
     Balakiyara Bala Mandira
     Chitradurga - 577 501.

4.   XYZ
     Represented by Yeshwanth Kumar (father)
     D/o Yeshwanth Kumar
     Aged about 15 years
     Balakiyara Bala Mandira
     Chitradurga - 577 501.

     (Respondent No.3 & 4 are Victims)
                                              ...RESPONDENTS

(By Sri M Divakar Maddur, HCGP for R1 & R2,
 Sri Srinivasa D C, Advocate for R3
 Smt. Deepa J, Advocate for R4)

       This Criminal Appeal is filed under Section 14(A)(2) of
SC/ST (POA) Act, praying to set aside the order dated
06.12.2022 in Crl.Misc.No.1179/2022, passed by Special 2nd
Additional District and Sessions Judge, Chitradurga and
consequently enlarge the appellant/accused No.3 on bail in
Cr.No.387/2022 of Chitradurga rural P.S., Chitradurga District
for the offences punishable under Section 376(2)(n), 376(DA),
376(3), 201, 202, 506 r/w 34 and 37of IPC and 17, 5(L), 6 of
POCSO Act, 1989 and Section 3(f) and section 7 of Religious
Institution Prevention of Misuse Act, 1988 and Section 75 of
                                 3




the Juvenile Justice (care and protection of Children) Act
2015, pending on the file of Hon'ble 2nd Additional District and
Sessions Judge, Chitradurga.

      This Criminal Appeal having been heard and reserved for
judgment this day, SHIVASHANKAR AMARANNAVAR J,
delivered the following;

                           JUDGMENT

This appeal is filed by accused No.3 praying to

set-aside the order dated 06.12.2022 passed in

Crl.Misc.No.1179/2022 by the Special II Additional District

and Sessions Judge, Chitradurga, whereunder the bail

petition of the appellant - accused No.3 sought in respect

of Crime No.387/2022 of Chitradurga Rural Police Station

for the offences under Sections 5(l), 6 and 17 of the

Protection of Children from Sexual Offences Act, 2012 (for

short hereinafter referred to as 'POCSO Act'), Sections

376(2)(n), 376(3), 149 of the Indian Penal Code, 1860 (for

short hereinafter referred to as 'IPC') and Sections 3(1)(i)

and (ii) of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (for short hereinafter

referred to as "the SC/ST Act"), came to be rejected.

2. Heard learned Senior counsel for the appellant -

accused No.3 and learned counsel for respondent No.3 and

learned High Court Government Pleader for respondent

Nos.1 and 2.

3. The factual matrix of the prosecution case is that; on

the basis of the complaint lodged by respondent No.2, F.I.R

was registered by Nazarabad Police Station, Mysuru in

Crime No.155/2022. In the said complaint, it is alleged

that the victims are aged 16 and 15 years respectively;

they are the inmates of Akkamahadevi Hostel run by

Murugha Mutt, Chitradurga; accused No.1 who is the Chief

Pontiff had sexually abused the two victims from

3½ and 1½ years respectively. The present appellant

(accused No.4 in the F.I.R and accused No.3 in the charge

sheet), Warden (accused No.2), Junior Pontiff (accused

No.3 in the F.I.R), Lawyer Sri.Gangadharaiah (accused No.5

in the F.I.R) have supported accused No.1 to commit the

offences. It is further stated in the complaint that both the

victims were produced before the Child Welfare Committee

by the office bearers of 'Odanadi', an N.G.O in Mysuru. The

complaint and F.I.R are sequel of counseling of both the

victims conducted by the Child Welfare Committee, Mysuru.

It was further stated that as it was late night, the victims

were handed over to the custody of 'Odanadi' temporarily.

On such other facts, the F.I.R was registered for the

offences punishable under Sections 17, 5(l) and 6 of the

POCSO Act and Sections 3(1)(w)(i)(ii) and 3(2)(v) of the

SC/ST Act, wherein the appellant was arraigned as accused

No.4. Pursuant to registration of the said F.I.R, case was

transferred to Chitradurga Rural Police on the point of

territorial jurisdiction and F.I.R was registered afresh on the

basis of the letter dated 27.08.2022, addressed to the

Superintendent of Police, Chitradurga District. Pursuant to

the receipt of the said letter, Chitradurga Rural Police

registered F.I.R in Crime No.387/2022. The appellant -

accused No.3 was produced before the Special Judge and

he was remanded to judicial custody. After completion of

investigation, final report has been laid for the offences

under Sections 376(2)(n), 376DA, 376(3), 201, 202 506

r/w Sections 34 and 37 of IPC and Sections 17, 5(l), 6 of

the POCSO Act and Section 3(1)(w)(i) and (ii), 3(2)(v) and

3(2)(va) of the SC/ST Act and Sections 3(f) and 7 of the

Religious Institution (Prevention Of Misuse) Act, 1988 (for

short hereinafter referred to as 'the Religious Institution

Act') and Section 75 of the Juvenile Justice (Care And

Protection Of Children) Act, 2015 (for short hereinafter

referred to as 'the JJ Act'). The appellant has been

arraigned as accused No.3 in the charge sheet. The charge

sheet was not laid against the Junior Pontiff (accused No.3

in the F.I.R) and lawyer Sri.Gangadharaiah (accused No.5

in the F.I.R). Based on two charge sheets filed in the same

crime, two cases came to be registered in Special Case

Nos.181/2022 and 182/2022. The said two special cases

are pending on the file of Special II Additional District and

Sessions Judge, Chitradurga. Since, two cases are

registered in the same crime, learned counsel for the

appellant filed I.A.No.1/2023 seeking amendment to insert

the special case numbers in the prayer portion. Since,

those two special cases registered are arising out of two

charge sheets filed in the same crime, the application

seeking amendment deserves to be allowed and

accordingly, it is allowed.

4. The appellant - accused No.3 who was in judicial

custody filed Crl.Misc.No.1179/2022 seeking bail and the

same came to be rejected by the Special Court by order

dated 06.12.2023 which is challenged in this appeal.

5. Learned counsel for the appellant - accused No.3 would

contend that the victim girls appeared in Cottonpet Police

Station, Bengaluru on the night of 24.07.2022, without

holding any enquiry, both the victims were handed over to

the custody of Sri.S.K.Basavarajan. Thereafter, there

enigmatic disappearance for about 33 days left unanswered

in the investigation. The unseen hands behind these

unfathomable episodes have planted the story of abetment

and sexual abuse against the appellant and others. Missing

of several important missing links in this case goes to show

that the prosecution is handiwork of people who are

opposed to accused No.1. In the battle to grab power,

wealth and to exhibit supremacy the appellant has been

made a scapegoat. There is an inordinate and unexplained

delay in lodging the complaint. The prosecution has

concealed the fact as to where the shelter was provided to

the victims for long period of 33 days.

(a) The Investigating Officer has recorded the statements

of 23 girl students who have not alleged any sexual assault

or sexual intercourse against the accused persons. CW1

refused medical examination initially and after some days,

she gave consent for the medical examination. The doctor

who examined CWs.1 and 2 has noted that their hymen is

intact. CWs.1 and 2 named eight girls stating that they

have undergone sexual assault by accused No.1 and their

statements were recorded, wherein there is no allegation of

sexual assault by accused No.1. Due to wayward behaviour

of CWs.1 and 2 not attending the classes etc., the Warden

has taken them to task.

(b) This Court in W.P.No.2331/2023 has held that the

provisions of Section 7 of the Religious Institution Act are

not applicable.

(c) In the F.I.R and in the statement of some witnesses,

there is allegation that accused Nos.3 to 5 named in the

F.I.R are the supporters of accused No.1 who have

supported the acts of accused No.1, but the charge sheet is

filed only against accused No.4 in the F.I.R, leaving accused

Nos.3 and 5 in the F.I.R, without any reason. The appellant

- accused No.3 is similarly alleged as against accused Nos.4

and 5 in the F.I.R, but has left out in the charge sheet.

(d) The application filed seeking discharge has been

rejected and the order has been challenged in the criminal

revision petition and there is stay of further proceedings till

date and also an order is passed in Crl.P.No.4511/2023,

wherein, further proceedings are stayed till 30.09.2023. In

Crl.P.No.5576/2022 also there is stay of further

proceedings. The order of stay of further proceedings

would enure for grant of bail.

(e) In the statement of CW7 dated 26.08.2022, there is no

reference to accused Nos.3 to 5. Even in the statement of

CW1 dated 28.08.2022, there is no reference of accused

No.3. In the statement of CW1 recorded under Section 164

of Cr.P.C dated 30.08.2022, there is no allegation of sexual

intercourse by accused No.1. In the said statement, there is

only allegation that this appellant - accused No.3 is the

supporter of accused No.1. The statements of father and

mother of CW1 reveal that CW1 has not told them about

any sexual assault by accused No.1. Even CW2 in her

statement has only alleged that appellant - accused No.3 is

the supporter of accused No.1. The statement of other

students recorded by the Investigating Officer does not

contain any allegation of sexual assault by accused No.1 or

reference to this appellant - accused No.3 as a supporter to

accused No.1. The statement of Sri.Basarvarajan and his

wife Smt.Soubhagya does not contain regarding receipt of

any complaint by CWs.1 and 2 and there is no whisper of

name of accused No.3. There are civil litigations between

accused No.1 and the said Sri.Basavarajan and his wife

Smt.Soubhagya.

(f) The offences under Sections 3(2)(v) and 3(2)(va) of the

SC/ST Act are not attracted, since there is no allegation

that the alleged offences are committed knowingly that the

victims belongs to the Scheduled Caste and Scheduled Tribe

and the charges leveled against the accused persons are

not contained in the Schedule of the Act.

(g) Even the alleged act against the appellant - accused

No.3 stating that he is the supporter of accused No.1 does

not amount to abetment as defined under Section 16 of the

POCSO Act, since there is no instigation or conspiracy and

aid by the act or omission. The other offences namely

Sections 366, 376DA, 323, 504, 201 of IPC are not

attracted against the appellant - accused No.3.

(h) Learned Senior counsel placing reliance on the order

passed by the Co-ordinate Bench of this Court in

Crl.P.No.3274/2020 has submitted that, in the said case,

the Court noting that the hymen is intact and there are no

external injuries seen over the body of the victim, has

granted bail for the offence under Section 376 of IPC and

Section 4 of the POCSO Act.

(i) Learned Senior counsel also placed reliance on the order

of the Co-ordinate Bench passed in Crl.P.No.5675/2022,

wherein the Court has granted bail for the offence under

Section 376 of IPC and Sections 5(l), 6 and 17 of the

POCSO Act, noting that the medical report reveal that there

is no sexual assault on the victim, except her own

statement and that she has not co-operated with the

medical examination and the doctors have not given any

opinion regarding sexual assault on the victim.

(j) Learned Senior counsel also placed reliance on the

decision of the Hon'ble Apex Court in the case of Naval

Dipakkumar Thakkar Vs. State of Gujrat and Another

in Crl.A.No.1161/2023, wherein it is held as under;

"4. The appellant is facing proceedings in respect of the allegation under Section 376(2) of the Indian Penal Code. The appellant was arrested on 10.08.2022 and has spent more than eight months in custody as on date. Though, the charge-sheet has been filed, the Trial Court has not yet framed the

charges and the trial has not commenced. In a matter of the present nature though, we have referred to the entire material available on record including the explanation sought to be put forth by the appellant, we do not propose to specifically refer to the same as it may otherwise affect the case of the parties on merits.

5. However, having taken into consideration the fact that charge-sheet has been filed and the appellant has been in incarceration for more than eight months, we deem it appropriate to direct release of the appellant on bail subject to the appropriate conditions to be imposed by the Trial Court."

(k) Learned Senior counsel would contend that the

appellant - accused No.3 is in judicial custody since more

than one year and he is aged more than 60 years. Except

the allegations of supporting accused No.1, there are no

other allegations against him and the persons alleged

similarly, have been left out in the charge sheet. With this,

he prayed to allow the appeal and grant bail to the

appellant - accused No.3.

6. Learned counsel for respondent No.3 would contend

that the appellant - accused No.3 was absconding for two

months and he came to be arrested on 29.10.2022 ie.,

after filing the charge sheet. The statement of CWs.1 and 2

establish that this appellant - accused No.3 has supported

accused No.1 and he pushed the victims to the room of

accused No.1. The said act of the appellant - accused No.3

clearly attracts the offence of abetment under Section 16 of

the POCSO Act, which is punishable under Section 17 of the

POCSO Act. The punishment provided for the offence under

Section 17 of the POCSO Act is that of the offence alleged

against the main accused ie., under Section 6 of the POCSO

Act. The appellant - accused No.3 is an influential person

and therefore, there is a threat to the victims and the

prosecution witnesses. He supported the reasoning

assigned by the Trial Court in rejecting the bail petition of

this appellant - accused No.3. With this, he prayed to

dismiss the appeal.

7. Per contra, learned High Court Government Pleader

appearing for respondent Nos.1 and 2 would submit that

CWs.1 and 2 are the children. This appellant - accused

No.3 has supported accused No.1 and abetted commission

of offences. The appellant - accused No.3 is the close

associate of accused No.1 and he is clearly involved in

supporting accused No.1 in his activities. He is influential in

the Mutt and there are chances of tampering the

prosecution witnesses. He placed reliance on the decision

of the Hon'ble Apex Court in the case of Phool Singh Vs.

state of Madhya Pradesh reported in (2022) 2 SCC 74

contending that the evidence of the prosecutrix is as that of

an injured witness. The Special Court considering these

aspects has rightly rejected the bail petition of the appellant

- accused No.3. With this, he prayed to dismiss the appeal.

8. Having heard the learned counsel, the Court has

perused the charge sheet materials and the impugned

order.

9. The accusation against this appellant - accused No.3 is

that he supported accused No.1 and abetted commission of

offences. The Trial Court while passing the impugned order

in Paragraph Nos.11 to 14 has referred to the statements of

CWs.1, 2 and 4 and extracted the relevant portions of their

statements. In the extracted portions of the said

statements of CWs.1, 2 and 4, it is stated that the Junior

Pontiff, Sri.Gangadhar and Sri.Paramashivaiah (accused

No.3) and accused No.2 were supporting accused No.1.

Even though the said Junior Pontiff and the lawyer

Sri.Gangadhariah were arraigned as accused in the F.I.R,

charge sheet has not been filed against them. On

considering the statements of the victims, the allegations

against them is also similar to that of this appellant -

accused No.3. Merely because this appellant - accused

No.3 is a close associate of accused No.1 and he was

supporting accused No.1, does not amount to abetment to

commit the offences alleged against accused No.1. The

said aspect can be considered at the full fledged trial.

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 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 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. In the result, the following;

ORDER

The appeal is allowed. The impugned order dated

06.12.2022 passed in Crl.Misc.No.1179/2022 by the Special

II Additional District and Sessions Judge, Chitradurga is

set-aside. The appellant - accused No.3 is granted bail in

Crime No.387/2022 of Chitradurga Rural Police Station

(Special Case Nos.181 and 182 of 2022), subject to the

following conditions:

(i) The appellant - accused No.3 shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees two lakh only), with two sureties for the likesum.

(ii) The appellant - accused No.3 shall not tamper the prosecution witnesses.

(iii) The appellant - accused No.3 shall attend the Court on all dates of hearing and co-operate in speedy disposal of the cases.

(iv) The appellant - accused No.3 shall not threaten the prosecution witnesses.

(v) The appellant - accused No.3 shall not commit any offence till disposal of the cases registered against him.

The Trial Court is at liberty to impose any other

suitable conditions apart from the above conditions.

I.A.No.1/2023 is allowed. Counsel for the appellant is

permitted to amend the prayer column.

Sd/-

JUDGE

GH CT-SM