Karnataka High Court
Mailappa S/O Sunkappa Badalli vs The State Of Karnataka on 19 September, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 102438 OF 2022
BETWEEN:
MAILAPPA S/O. SUNKAPPA BADALLI
AGE. 22 YEARS, OCC. COOLIE,
R/O. MUDDABALLI, TQ. KOPPAL,
DIST. KOPPAL 583238.
...PETITIONER
(BY SRI. SABEEL AHMED, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY P.I.
WOMAN POLICE STATION,
KOPPAL - 583231,
NOW REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD - 580008.
2. NINGAPPA S/O. BAILAPPA NADUVINAMANI
AGE. 36 YEARS, OCC. FARMER,
R/O. MUDDABALLI, TQ. KOPPAL,
DIST. KOPPALL- 583238.
...RESPONDENTS
(BY SRI. PRASHANTH V. MOGALI, HCGP FOR R1;
SRI. HEMANTHKUMAR L. HAVARAGI, ADV. FOR R2)
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CRL.P No. 102438 of 2022
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
SEEKING TO ENLARGE THE PETITIONER/ACCUSED ON
REGULAR BAIL IN CRIME NO.27/2022 OF WOMAN POLICE
STATION, KOPPAL REGISTERED FOR THE ALLEGED OFFENCES
PUNISHABLE U/S 376, 363, 344 OF IPC AND SECTION 4 AND 6
OF POCSO ACT-2012, PENDING ON THE FILE OF ADDITIONAL
DISTRICT AND SESSIONS JUDGE, FTSC-1, KOPPAL IN
SPL.SC.POCSO NO.35/2022.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS TH IS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed by the sole accused under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.27/2022 of Koppal Woman Police Station registered for the offences punishable under Sections 376, 363, 344 of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity), Sections 4 and 6 of Protection of Children from Sexual Offence Act, -3- CRL.P No. 102438 of 2022 2012 (hereinafter referred to as the 'POCSO Act' for brevity).
2. The case of the prosecution is that respondent No.2 who is the father of the victim girl lodged the complaint about missing of his daughter. Respondent No.2 on 04.04.2022 at about 4.30 a.m., when he get up for attending first call of nature found that his daughter-victim girl missing and he and his wife searched but not traced her. Hence he filed complaint on 06.04.2022 against unknown person for the offence punishable under Section 363 of IPC. The said complaint came to be registered in Crime No.27/2022 for the offence punishable under Section 363 of IPC. The Investigating Officer after investigation has filed the charge sheet against the petitioner for the offences punishable under Section 344, 363, 376 of IPC and Section 4 and 6 -4- CRL.P No. 102438 of 2022 of POCSO Act. The petitioner came to be arrested on 20.04.2022 and he is in judicial custody. The petitioner filed bail application in Spl.SC.POCSO No.35/2022 and the same came to be rejected by the Additional District and Sessions Judge FTSC-1, Koppal by order dated 28.07.2022. Therefore, the petitioner/accused is before this Court seeking bail.
3. Heard the arguments of learned counsel appearing for petitioner, learned High Court Government Pleader for respondent No.1-State and learned counsel for Respondent No.2.
4. The learned counsel for the petitioner would contend that there was a love affair between the petitioner and the victim girl and therefore, they eloped together on 03.04.2022 and they stayed together till 20.04.2022. There is no any -5- CRL.P No. 102438 of 2022 hue and cry of the victim girl during the said period and she accepts that she is in love affair with the petitioner/accused. The statement of the victim girl has been recorded under Section 164 of Cr.P.C., wherein, she stated that she voluntarily went to the house of her aunt residing at Kunikeri village and she is not being kidnapped by any person. It is his further submission that there is no allegation of any sexual intercourse by the victim girl in her statement recorded under Section 164 of Cr.P.C. As the charge sheet is filed, the petitioner is not required for custodial interrogation. With this, he prayed to allow the petition.
5. Per contra, learned High Court Government Pleader would contend that the as per school records the date of birth of the victim girl is 01.06.2005 and she is aged 16 years 10 months as -6- CRL.P No. 102438 of 2022 on the date of alleged offence. The doctor who examined the victim girl has opined the pregnancy of the victim girl, which shows that there is sexual intercourse on her. It is his further submission that the victim girl is a minor and her consent is no consent. The charge sheet material shows prima facie case against the petitioner for the offences alleged against him. With this, he prayed to reject the petition.
6. Learned counsel for respondent No.2 would contend that as per medical examination report there is sexual intercourse on the victim girl and she is pregnant. The victim girl is aged 16 years 10 months as on the date of offence and her consent is no consent. If the petitioner is granted bail, there is threat to the complainant and other prosecution witnesses. With this, he prayed to reject the petition.
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7. Having regard to the submissions made by learned counsel for the petitioner, learned High Court Government Pleader for respondent No.1- State and learned counsel for respondent No.2, this Court has gone through the charge sheet records and the order passed by the Sessions Court.
8. The victim girl when eloped in the night on 03.04.2022, missing complaint came to be filed on 06.04.2022. The victim girl came to be traced with the petitioner on 20.04.2022. The statement of the victim girl has been recorded under Section 164 of Cr.P.C. There is no allegation of any kidnapping or sexual intercourse on her by the petitioner in her statement. The date of birth of the victim girl is 01.06.2005 and she is aged 16 years 10 months as on the date of alleged offence. -8- CRL.P No. 102438 of 2022 As per the opinion of doctor who examined the victim girl, she is pregnant of seven weeks. The learned counsel for respondent No.2-complainant on enquiry said that he has no instructions with regard to the present status of the victim girl. The learned counsel for the petitioner submitted that she is still pregnant. The victim girl is of the age of understanding the consequences of her acts. The victim girl stayed with the petitioner/accused for a period of more than 16 days, which itself shows that she is having love affair with the petitioner. As the charge sheet is filed, the petitioner is not required for custodial interrogation. The apprehension of the prosecution is that if the petitioner is granted bail, he will threaten the complainant and other prosecution witnesses can be met with by imposing stringent conditions.
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9. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting bail subject to certain terms and conditions. Hence, I proceed to pass the following:
ORDER The petition filed under Section 439 of Cr.P.C. is allowed. Consequently, the petitioner/accused shall be released on bail in Crime No.27/2022 of Koppal Woman Police Station, subject to the following conditions:
i) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/-
(Rupees one lakh only) with one surety for the like sum to the satisfaction of the jurisdictional Court.
ii) The petitioner shall not indulge in tampering the prosecution witnesses.
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CRL.P No. 102438 of 2022
iii) The petitioner shall attend the Court on all the dates of hearing unless exempted and co-operate in speedy disposal of the case.
Sd/-
JUDGE SMM