Shashi and Others vs The State of Karnataka

G. Narendra, J.—The petitioners are the accused Nos. 2 and 3 in Crime No. 29/2015 of Amingad Police Station, Hungunda Circle, Bagalkot registered for the offences punishable under Sections 376(2) (i), 506, 109 read with Section 34 of IPC and Sections 6, 8, 10, 12 and 14 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012).

The case of the prosecution is that on 01.04.2015 at about 12:00 noon, the de facto complainant approached the respondent - Police with handwritten complaint said to have been written by one B.V. Ramadurga alleging that one Vasant had came to her house along with Sharanamma and the said Sharanamma requested her daughter to collect firewood and she refused to send her daughter Netra, who is the minor victim. It is further alleged that in her absence, the accused and the said Sharanamma have convinced the victim to accompany them and when they had gone for collecting the firewood, the first accused is said to have taken the victim behind the trees and holding her hands forcibly committed rape on the minor victim. The incident is alleged to have taken place on 29.03.2015. It is further alleged that the victim returned home at 12:30 p.m., she was looking tired and slept, even on the morning of 01.04.2015 she looked very tired and at about 7:00 a.m. she started crying and on enquiry she informed that yesterday the accused had taken her for collecting firewood and the accused took her behind the trees and committed the heinous act and accused Nos. 2 and 3 have taken the photographs of her on their mobile phone when she and accused No. 1 were lying in the nude. Thereafter, accused threatened her not to disclose the same to anybody, otherwise they would kill her or publish the photographs in the school and the bus stand. On these allegations, the above crime number came to be registered. Accused Nos. 2 and 3 who are petitioners before this Court were arrested on 23.04.2015.

The accused have approached the trial Court and the trial Court was pleased to reject the bail application on the ground that the final FSL report is awaited and also on the ground that the accused persons have committed a heinous crime, and if they were enlarged on bail, it would send a wrong message to the society.

Now the present petition is filed after filing of the FSL report. In this changed circumstance, the petitioners'' counsel prays before the Hon''ble Court to enlarge the petitioners on bail firstly on the ground that FSL report has falsified the complaint that these petitioners have taken the photographs of the victim on their mobile phone. Secondly, it is confirmed that these petitioners have not participated in any illegal activities and thirdly as per the complaint the petitioners and others have gone there to collect firewood and even assuming that they were present near the scene of occurrence, it is for the reason that they were there to collect firewood. He would submit that the accused are wholly innocent of the offences alleged against them and they hail from respectable families and that they cannot be prosecuted for no fault of their. He would further submit that even assuming that the first accused is a close acquaintance of the first accused, that by itself cannot be the sole ground to prosecute these petitioners.

Per contra, the learned HCGP submits that he would reiterate the contentions before the Court below, but he would fairly submit that the mobile phone belonging to the accused were seized and subjected to laboratory test, but no photographs of the victim were recovered. He would also admit that the petitioners have not participated nor attempted in the sexual assault upon the victim. The learned HCGP would also submit that the petitioners have no criminal antecedents and that they are permanent residents of the village.

The summary of the complaint is that the first accused alone is said to have sexually assaulted the victim. Though, it is alleged against these petitioners that they have taken the photographs of the victim. The alleged photographs have not been recovered from their mobile phones, which were subjected to a laboratory test. The reasoning of the trial Court that merely because of the allegation of commission of heinous crimes are made against the persons that alone cannot be a ground for rejecting the application for bail. It is mandatory for the Courts below to see and atleast have a cursory glance of the case papers and comprehend the contents and thereafter take a decision. It is not that the police and the prosecution are infallible the case of a person who is behind bars stands on different footing and requires to be considered on priority and the plea and grounds raised by the petitioner requires to be addressed and answered by the court. It is no doubt that the grant of bail is a discretionary power, but, to exercise the order granting or rejecting ought to be a result of judicious exercise and after judicial application of mind. The impugned order does not disclose the judicial application of mind, but, mere application of mind only. The reasons set out by the court below are unconvincing. It is in the nature of abdication of its duties towards the incarcerated under-trial. The copy of this order be forwarded to the Court below and to the concerned Judge. The reasoning that release of people who commit of a heinous crime would send a wrong message and would embolden people of similar mind set to commit such type offence is a serious misconception. It is the duty of the Court to set out the reasons as to why the person has to be denied his freedom or why a person who has been deprived of his freedom should be set free. It is the absence of such reason, which definitely would only embolden such criminals. If the Court desires to send out the massage to the society, it ought to demonstrate that its primary duty is not only punish the guilty, but, also to protect the innocents and safeguard the rights guaranteed to the citizen under the constitution.

Accordingly, the petition is allowed. The petitioner is enlarged on bail, subject to -

"i) Petitioner executing a self bond for a sum of Rs. 25,000/- and also furnishing two sureties for a likesum to the satisfaction of concerned Court.

ii) The petitioner shall not tamper with the witnesses or evidence.

iii) The petitioner shall not try to influence the complainant or other wise.

iv) The petitioner shall not leave the jurisdiction of this Court without the prior permission of the trial Court.

v) The petitioner shall attend the Court on all hearing dates."

The above criminal petition is ordered accordingly.