Karnataka High Court
Sharanappa S/O Nagappa Saidor vs The State Of Karnataka And Anr on 4 January, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 04TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL PETITION No.201434/2022
BETWEEN:
SHARANAPPA
S/O NAGAPPA SAIDOR
AGE: 20 YEARS, OCC: COOLIE,
R/O VILLAGE ALLIPUR,
TQ. AND DIST. YADGIRI-585201
... PETITIONER
(BY SRI ARUN CHOUDAPURKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH YADGIRI WOMEN PS
REPRESENTED BY SPECIAL
PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
KALABURAGI BENCH
KALABURAGI-585107
2. SABANNA S/O SANNA
MALLAYYA HOSAKURBARU
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O ALLIPUR,
TQ. AND DIST. YADGIRI-585201
(FATHER OF VICTIM)
... RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL, HCGP FOR R1;
R2-SERVED)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C., PRAYING TO ALLOW THE BAIL PETITION AND
RELEASE THE PETITIONER ON BAIL IN CRL.MISC.NO.353/2022
ON THE FILE OF SESSIONS JUDGE, YADGIRI (CRIME
NO.18/2022 SPL. CASE NO.64/2022 OF YADGIRI WOMEN PS)
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 363, 366,
506, 509, 376(3), 376(2)(N) OF IPC AND UNDER SECTIONS 4 &
6 OF POCSO ACT 2012.
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Arun Chowdapurkar, learned counsel for the petitioner and the learned High Court Government Pleader.
2. The present petition is filed under Section 439 of Cr.P.C., with the following prayer:
"Therefore, the petitioner humbly pray that the Hon'ble Court may kindly be pleased to allow the bail petition U/s 439 of Cr.P.C. and order for his release on bail in Crl. Misc.No: 353/2022 on the file of Sessions Judge, Yadgiri (Crime No:3
18/2022 Spl. Case No: 64/2022 of Yadgiri Women Ps) for the offences punishable U/s 363, 366, 506, 509, 376(3), 376(2)(n) of IPC and U/Sec. 4 & 6 of POCSO Act- 2012, in the interest of justice and equity."
3. The petitioner/accused is chargesheeted for the offences punishable under Sections 363, 366, 506, 509, 376(3), 376(ii)(n) of IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012, (for short, hereinafter referred to as 'POCSO Act').
4. The complaint averments reveal that the victim girl being aged about 15 years was abducted by the accused and they had roamed in different places and in all such places, the petitioner had forcible sexual intercourse with her resulting in the aforesaid offences.
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5. After registering the case in Crime No.18/2022 initially for the offence punishable under Section 363 of IPC, the police investigated the matter and filed chargesheet for the aforesaid offences.
6. The effort made by the petitioner to seek grant of bail is turned down by the learned Special Judge and thereafter, the petitioner is before this Court.
7. Learned counsel for the petitioner reiterating the grounds urged in the bail petition vehemently contended that the victim girl is aged more than 16 years and her statement before the Medical Officer when she was subjected to medical examination reveals that she had a love affair with the petitioner and there was voluntary act of physical relationship between the petitioner and the victim girl. Therefore, no prima facie materials are found so as to 5 attract the offences alleged against the accused/petitioner and sought for grant of bail.
8. Per contra, learned High Court Government Pleader vehemently contended that statement of the victim girl recorded before the learned Magistrate under Section 161 of Cr.P.C., coupled with other material on record would clearly make out a case for proceeding against the accused/petitioner for the offences punishable under Sections 4 and 6 of the POCSO Act. He would also pointed out that since the victim girl is aged 15 years as per the FIR, consent if any, by the victim girl is of no consequence in view of the settled principle of law and sought for rejection of the bail petition.
9. In reply, Sri Arun Chowdapurkar, learned counsel for the petitioner contended that since the chargesheet is filed, custodial trial of the petitioner is 6 no longer warranted and in this regard, he placed reliance on the order passed by the Co-ordinate Bench of this Court in Criminal Petition No.2577/2020 dated 18.06.2020 and sought for grant of bail.
10. This Court perused the material on record meticulously in view of the rival contentions of the parties.
11. Admittedly, the victim girl is aged 15 years as per the complaint. But the same is disputed. The said aspect of the matter needs to be gone into during the trial. Suffice to say that material collected by the investigating agency in the form of chargesheet clearly makes out that the victim girl is aged between 15-16 years.
12. In view of the principles of law enunciated by the Hon'ble Supreme Court in the case of Independent Thought vs. Union of India and 7 another reported in (2017) 10 SCC 800, consent of a minor girl is not a legal consent. Therefore, the contentions urged on behalf of the petitioner that the physical relationship between the petitioner and the victim girl is a consensual act cannot be countenanced, atleast at this stage.
13. The material collected by the Investigating Agency in the form of chargesheet discloses that there was a physical relationship between the petitioner and the victim girl. The medical records also sufficiently corroborate the complaint averments and the statement of the victim girl recorded by the learned Magistrate under Section 161 of Cr.P.C.
14. All these aspects if cumulatively viewed, especially, having regard to the fact that reverse burden is cast on the accused/petitioner under Sections 29 and 30 of the POCSO Act, this Court is of 8 the considered opinion that the grounds urged in the bail petition are not sufficient to admit the petitioner on bail.
15. Accordingly, following order is passed:
ORDER The bail petition is rejected.
However, having regard to the fact that the petitioner is in custody from 18.04.2022, learned Special Judge is directed to dispose of the main case itself on or before 31.08.2023.
If there is inordinate delay in disposing of the main case, the petitioner is at liberty to approach the Court with a successive bail application.
Ordered accordingly.
Sd/-
JUDGE NB*