Kar HC | Bail order not containing cogent reasons liable to be set aside for non-application of mind

Karnataka High Court: H.P. Sandesh J. allowed the petition and set aside the bail granted by the Trial Court on the file of V Additional District and Sessions Judge.

 The facts of the case are such that accused 1 has been prosecuted for the offence punishable under Sections 376(2), 506 and 384 Penal Code, 1860 i.e. IPC and Sections 4, 5(f), 6, 8 and 14 of Protection of Children from Sexual Offences Act, 2012 (i.e. ‘POCSO Act’) and Section 67(b) of the Information Technology Act. Based on the complaint, case was registered against both respondent 2 and his wife, who was arraigned as accused 2. During the crime stage, respondent 2 herein filed an application for grant of bail and the Trial Court enlarged him on bail. Hence, the instant petition was filed under Section 439(2) of Criminal Procedure Code i.e. Cr.PC for cancellation of the bail.

Counsel for petitioners submitted that allowing the bail application is illegal, perverse and without application of mind. It was also contended that the Trial Court without considering the presumption enunciated in the POCSO Act, granted bail. It was submitted that the incident took place when the victim girl was below 16 years of age, which makes it mandatory on the Court to issue notice to the informant/complainant/victim.

Counsel for the respondents submitted that the Trial Court has observed that the complainant/victim girl and the Investigating Officer even the learned Special Public Prosecutor have ample opportunity to seek the cancellation of the bail of accused 1 in the event of collecting incriminating materials or violation of condition of bail by accused 1. When such an observation is made and detailed order has been passed, this Court cannot invoke Section 439(2) of Cr.P.C.

The Court observed that The reasons assigned by the Trial Court is nothing but perverse and though elaborately discussed in the order, but the very approach in exercising the discretion under Section 439 of Cr.P.C. it is nothing but capricious order

The Court observed that it is specific in the case on hand that accused 1 called the victim girl and subjected for sexual act and also taken the photographs and subsequently blackmailed the victim girl and collected an amount of Rs.10,000/-. It is important to note that when serious allegations are made and no doubt two letters are addressed in favour respondent 2, but whether those letters are addressed by the victim girl or not is a matter of trial and while considering the bail application those documents also cannot be relied upon and the same is subject to proof, but the fact is that she was subjected to sexual act and when the same is alleged and filing of complaint after two and half years cannot be a ground when specific allegation is made in the complaint that he had caused life threat and also taken photographs of subjecting her for sexual act.

The Court observed that it is not the case of the petitioner that respondent 2 has violated the conditions of the bail order, but the observation of the Trial Court is that if incriminating material is collected, the option is open to the victim.

The submission of the learned counsel is that this Court can give an opportunity to the petitioner to approach the Trial Court and the said situation does not arise when the order has been passed in noncompliance with the mandatory provisions of Section 439(1A) of Cr.P.C. and Section 376(3) of IPC and amended provision is brought into force in 2018. Apart from that, an exercise is made to analyze the evidence available on record and hurriedly passed the order. When such being the factual aspects of the case, it is nothing but perverse order is passed by the Trial Court while enlarging him on bail. The learned counsel for respondent No.2 submits that as on the date of lodging the complaint, the victim girl was aged about 17 years and the said contention cannot be accepted for the reason that the Court has to take note of subjecting the minor girl for sexual act and not the date of complaint.

Hence, the Court held it appropriate to invoke Section 439(2) of CrPC to cancel the bail granted by the Trial Court. It further held The accused be arrested and commit him to custody under Section 439(2) of CrPC. [Lalitha v State of Karnataka, Criminal Petition No. 7143 of 2021, decided on 14-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioner: Mr. Sachin BS

For respondents: Mr. V S Hegde, Mr. Krishnakumar and Mr. Chandrashekhar RP

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