Karnataka HC Cancels Bail Of Lecturer Accused Of Sexually Assaulting Minor; Says Trial Court Obligated To Hear Complainant U/s 439(1A) CrPC

The Karnataka High Court has set aside the order granting bail to a lecturer, accused of sexually assaulting a minor student of his college, as the trial court failed to given an opportunity to the complainant/victim of being heard before passing the order.

Justice H P Sandesh set aside the order dated August 10, 2021 granting bail to Gururaj L, and directed that the accused be arrested and commit him to custody under Section 439(2) of Cr.P.C.

The court said,

"In the case on hand, first of all the victim girl is aged about 14 years 10 months 21 days and as mandated under the law Section 376(3) of IPC as well as under Section 439 (1A) of Cr.P.C, which is amended in 2018, has not been considered by the Trial Court and it ought to have given an opportunity to the complainant/informant/victim, before passing the order and the same has not been complied."

Case Background:

The allegation against the accused is that he being the lecturer of the victim student College, subjected the victim girl for sexual act with the help of his wife and she was made naked and photograph was also taken and the caused life threat not to disclose the same to anybody and subsequently, on several occasions subjected her for sexual act.

The victim girl said that when he demanded money, she had stolen an amount of Rs.10,000 from the house and given it to the accused. Based on the complaint, a case has been registered against both the lecturer and his wife.

The accused came to be arrested on 08.08.2021 under sections 376(2), 506 and 384 of IPC and Sections 4, 5(f), 6, 8 and 14 of Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short) and Section 67(b) of the Information Technology Act. He was produced before the Court for remand when the accused filed a bail application.

The trial judge, considering the gravity of the allegations, remanded the accused to judicial custody and posted the case for objection on the next day and vide order dated 10.08.2021, granted him bail. This order came to be challenged before the High Court and prayer was made seeking cancellation of bail.

Petitioners Submissions:

Advocate Sachin B.S for the petitioner (complainant) submitted that allowing the bail application is illegal, perverse and without application of mind. The Trial Court without considering the presumption enunciated in the POCSO Act, granted bail. The Trial Court overlooked how the incident took place and failed to appreciate the allegations made in the complaint which constituted prima facie case against respondent No.2.

Further, he said 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. In the present case, without giving an opportunity to the victim girl/complainant/informant, the order has been passed. Hence, the order of granting bail is perverse, capricious and unlawful.

Accused opposed the plea:

Advocate Chandrashekar R.P for the accused contended that the alleged offence took place in 2018 and the said fact was disclosed after two and half years and no explanation is given regarding the delay.

Further, it was said the victim girl herself explaining the situation in her family wrote a letter to respondent No.2 and those documents are placed before the Trial Court and the same has been considered. Moreover, the Trial Court while passing the order in detail discussed in paragraph Nos.8 to 14 has given the reasons for granting bail. It has also 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 No.1 in the event of collecting incriminating materials or violation of condition of bail by accused No.1.

Prosecution sought cancellation of bail:

The Special Public Prosecutor submitted that the bail order was passed in a hurried manner and no opportunity is given to the victim and also order passed by the Trial Court is perverse and it requires interference of this Court.

Court findings:

The court said the trial Judge in its order while giving reasons in paragraph No.10 noticed with regard to the discrepancy of whether she was studying in 8th or 9th standard, but the fact is that no notice is given as mandated under the law.

It observed, "When the victim girl was not behaving normally, she was taken to the doctor and on persuasion, she revealed that she was subjected to sexual act and hence there was a delay in lodging the complaint. In a heinous offence of rape on the minor girl, the delay in lodging the complaint cannot be a ground to disbelieve the case of the complainant."

The bench finding fault with the reasons provided by the trial court in granting bail said, "The Court has to look into whether a prima facie case has been made out or not while exercising discretion under Section 439 of Cr.P.C. It added "Hence there is a force in the contention of the learned counsel for the petitioner that a perverse order has been passed by the Trial Court."

Taking strong objection to the reasons assigned by the Trial Court for granting bail such as health condition of the accused No.2 (wife of the lecturer), minor daughter and threat of losing employment of accused No.1.

The court said,

"When heinous offence of rape is alleged against the lecturer in whose college the minor girl was studying. 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 also refused to accept the observation made in the trial court order that the victim/Investigating Officer/Public Prosecutor is having an opportunity to seek for cancellation of bail, if material is collected against respondent No.2 and in any case of violation.

The bench said,

"In the case on hand, it is not the case of the petitioner that respondent No.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 non-compliance 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."

Further it said "Apart from that, an exercise is made to analyse the evidence available on record and hurriedly pass an order. When such being the factual aspects of the case, it is nothing but a perverse order is passed by the Trial Court, while enlarging him on bail."

Accordingly it allowed the petition and set aside the bail granted to the accused.

Case Title: Lalitha v. State of Karnataka

Case No: Criminal Petition NO.7143/2021

Citation: 2022 LiveLaw (Kar) 22

Date of Order: January 14, 2022

Appearance: Advocate Sachin B.S for petitioner; Special Public Prosecutor V.S. Hegde, a/w advocate Krishna Kumar, for R-1, Advocate Chandrashekar R.P., for R-2