Criminal petition filed under S. 439(2) Cr.P.C. to cancel bail in a POCSO case. Petitioner challenged trial court's discretion, citing a subsequent victim statement and age discrepancy. Court upheld trial judge's decision finding no capricious exercise of discretion.
Criminal petition under S. 439(2) Cr.P.C. dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2022
BEFORE:
THE HON’BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION No.2420 OF 2021
BETWEEN:
THE STATE OF KARNATAKA, BY CIRCLE INSPECTOR OF POLICE, KAUP CIRCLE, KAUP, (SHIRVA POLICE STATION), REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE–560 001.
... PETITIONER
[BY SRI. VINAYAKA V.S., HCGP]
AND:
AJITH T., S/O. DEVARAJ @ ANTHONY, AGED ABOUT 22 YEARS, R/AT UDYAVARA MELPETE, PADEMANE, UDUPI TALUK–576 101. ... RESPONDENT
[BY SMT. HALEEMA AMEEN, ADVOCATE]
THIS CRIMINAL PETITION IS FILED U/S 439(2) OF CR.P.C., PRAYING TO CANCEL THE ORDER DATED 18.06.2020 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE-F.T.S.C-1, UDUPI (SPL.COURT FOR TRIAL OF CASES FILED UNDER POCSO ACT) IN CRIME NO.45/2020 OF KAUP CIRCLE, KAUP (SHIRVA P.S.), UDUPI DISTRICT, REGISTERED FOR OFFENCE PUNISHABLE UNDER SECTION 376 OF IPC AND SECTIONS 4 AND 6 OF THE POCSO ACT AND DIRECT THAT RESPONDENT/ACCUSED BE ARRESTED AND COMMITTED TO THE CUSTODY.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THROUGH PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Heard the learned High Court Government Pleader for
the petitioner/State and also the learned counsel appearing for the respondent/accused.
2. The factual matrix of the case is that;
The present petition is filed under Section 439(2) of Cr.P.C. praying for cancellation of the bail. The learned High Court Government Pleader appearing for the State brought to the notice of this Court that after granting of bail, statement under Section 164 of Cr.P.C. was recorded i.e. on the next day of the bail order, wherein the victim girl reiterated that she was subjected to sexual act i.e., by consent. The learned High Court Government Pleader would also submit that the learned trial Judge failed to notice that the victim girl was aged 16 years 11 months and when the material discloses that she was subjected to sexual act, the learned trial Judge ought not to have
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granted bail to the respondent/accused by exercising discretion.
Per contra, the learned counsel appearing for the respondent/accused would submit that as on the date of considering the bail application, admittedly there was no statement recorded under Section 164 of Cr.P.C. and the learned High Court Government Pleader is relying upon the subsequent statement recorded under Section 164 of Cr.P.C. and the learned trial Judge has not committed any error and the same is found in paragraph 10 of the order. Apart from that, in paragraph 11 of the order, the learned trial Judge taking note of the order passed by this Court in Criminal Petition No.6183/2018 decided on 25.03.2019, wherein the age of the minor girl was more than 16 years, comes to the conclusion that the victim herein is having mind matured and consenting party and was aware of consequences of the alleged act. Hence, there is no capricious order by the learned trial Judge.
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reasoning given by the learned trial Judge while exercising discretion that too relying upon the order passed by this Court in Criminal Petition No.6183/2018 decided on 25.03.2019 and also the order passed in Crl. Miscellaneous No.6776/2017 decided on 15.03.2017, the discretion is exercised. Hence, on the factual aspect of the matter, it is not a fit case to exercise the discretion under Section 439(2) of Cr.P.C. Herein, there is no capricious order and only relying upon the principles laid down in the order passed by this Court, the discretion is exercised by the learned trial Judge. Hence, no ground is made out to invoke Section 439(2) of Cr.P.C. Accordingly, the criminal petition is dismissed.
Sd/JUDGE
Ksm* Ct-am
1 issue framed by the court
Whether the cancellation petition under S. 439(2) Cr.P.C. is maintainable given the reliance on a subsequent Section 164 statement and prior High Court orders on the victim’s maturity.
1 provisions across 1 enactments
The State of Karnataka
Ajith T.
H.P. Sandesh
As recorded by the court registry
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