Amy Mehta vs State Of Karnataka

Amy Mehta ..Appellant(S)

Versus

State of Karnataka & Anr. ..Respondent(S)

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 10.06.2022 passed by the High

Court of Karnataka at Bengaluru in Criminal Petition No.

3492/2022, by which, the High Court has released

respondent No. 2 herein on bail in connection with an

FIR/Crime No. 8/2022 registered with Laxmipura Police

Station, Mysuru City for the offences punishable under

Sections 376, 354, 328 and 120B of IPC, the original Signature Not Verified

informant/complainant/prosecutrix/victim has preferred Digitally signed by R Natarajan Date: 2022.11.17 17:01:10 IST Reason:

the present appeal.

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2. We have heard Ms. Jayna Kothari, learned Senior Advocate

appearing on behalf of the appellant, Shri Shubhranshu

Padhi, learned counsel appearing on behalf of the State

and Dr. Aditya Sondhi, learned Senior Advocate appearing

on behalf of respondent No. 2 – accused. We have gone

through and perused the impugned judgment and order

passed by the High Court releasing respondent No. 2 on

bail.

2.1 From the impugned judgment and order passed by the

High Court, it appears that what has weighed with the

High Court is that the complaint was filed after five days

and the allegations that the accused had mixed some

substance in the drinks that made her lose consciousness

and thereafter, he committed the offence on intoxicating

her and subjected her to the sexual act, is a matter of trial

and that the accused is in custody from 11.02.2022 and

there is no need of further custodial trial. The relevant

observations made in paragraph 6 of the impugned order

while releasing respondent No. 2 – accused on bail are as

under: ­

2 “6. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record, the Court has to take note of the contents of the allegations and also the complaint is filed after five days, wherein an allegation is made that this petitioner mixed some substance in the drinks to loose her conscious and thereafter he committed the offence and the fact that both of them went to Bopy’s Bar & Restaurant in order to take food and also had alcohol. Having taken note of the said fact into consideration whether intoxicating her subjected her to sexual act is a matter of trial and this petitioner is in custody from 11.02.2022 and no need of further custodial trial. Hence, it is a fit case to exercise the powers under Section 439 of Cr.P.C., subject to imposing certain conditions to protect and safeguard the interest of the prosecution.”

2.2 However, the High Court has failed to appreciate the

allegations in the FIR that immediately on the occurrence,

when the prosecutrix/victim regained consciousness, she

first went to the hospital and thereafter, tried to lodge the

FIR but no complaint was taken. In a case like this, the

High Court has not properly appreciated the fact that there

could have been some delay (though in the present case, it

may not be said that there was any inordinate delay in

lodging the FIR) as sometime could have been consumed

for the victim/prosecutrix to get out of the shock. Even the

3 said aspect is required to be considered at the time of the

trial.

2.3 Even otherwise, from the reasoning given, it appears that

the High Court has not at all considered the seriousness of

the allegations and the gravity of the offences alleged

against the accused. It is reported that the chargesheet

has already been filed. So, whatever material has been

collected during the investigation was required to be

considered by the High Court while considering the

application under Section 439 of Cr.PC.

2.4 Even the observation that there is no need of further

custodial trial is also not relevant aspect while considering

the bail application under Section 439 of Cr.P.C. The

same may have some relevance while considering the

application for anticipatory bail.

2.5 Having regard to the fact that while releasing respondent

No. 2 – accused on bail the High Court has not taken into

consideration the relevant aspects which are required to be

kept in mind while considering the bail application,

4 namely, seriousness of the offence alleged; material

collected during the investigation; statement of the

prosecutrix recorded under Section 161 of Cr.PC, etc., the

impugned judgment and order passed by the High Court is

unsustainable. Considering the fact that the chargesheet

has already been filed, the accused is already charge­

sheeted and the relevant material is also now a part of the

chargesheet, the same is required to be considered by the

High Court. Therefore, the matter ought to be remitted to

the High Court to consider the bail application afresh and

pass appropriate orders after considering the relevant

material/evidence collected during the investigation which

are now a part of the chargesheet.

3. In view of the above and for the reasons stated above, the

present Appeal Succeeds. The impugned judgment and

order passed by the High Court releasing respondent No. 2

– accused on bail, deserves to be quashed and set aside

and is accordingly quashed and set aside. The matter is

remitted to the High Court to decide the bail application

afresh in accordance with law and on its own merits after

5 perusing the material/evidence collected during the

investigation which are now a part of the chargesheet and

upon taking into consideration the relevant aspects which

are required to be kept in mind while examining the prayer

for bail.

4. As the impugned judgment and order passed by the High

Court releasing respondent No. 2 – accused on bail has

been set aside, respondent No. 2 – accused is directed to

surrender before the concerned Court/Jail Authority

within a period of one week from today and only thereafter,

the High Court shall decide and dispose of the bail

application afresh, as observed hereinabove, at the

earliest. With this, the present appeal is allowed.

…………………………………J. (M. R. SHAH)

…………………………………J. (HIMA KOHLI) NEW DELHI, NOVEMBER 17, 2022.

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