Karnataka High Court
K H Mohammed Rafiq vs State By Napoklu Police on 10 November, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No. 2556/2020
BETWEEN :
K.H. Mohammed Rafiq
S/o. K.H. Hamsa
Aged about 23 years
Residing at Kunjila Village
Madikeri Taluk
Kodagu District
Pin code no:571214. ... Petitioner
(By Sri. Raju C.N., Adv.)
AND :
State by Napoklu Police
Kodagu, Represented by SPP
High Court of Karnataka
Bangalore.
Pin code no:560001. ... Respondent.
(By Sri. V.S. Vinayaka., HCGP)
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THIS CRIMINAL PETITION IS FILED UNDER
SECTION 438 CR.P.C. PRAYING TO ENLARGE THE
PETITIONER ON BAIL IN THE EVENT OF HIS ARREST IN
2
CR. NO. 95/2014 OF NAPOKLU P.S., KODAGU FOR THE
OFFENCE P/U/S 9,10,11 OF PREVENTION OF CHILD
MARRIAGE ACT R/W 34 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS THROUGH VIDEO CONFERENCE THIS DAY, THE
COURT PASSED THE FOLLOWING;
ORDER
This petition is filed by petitioner/accused No. 1 under Section 438 Cr.P.C. seeking anticipatory bail in Crime No. 95/2014 for the offence punishable under Sections 9, 10 and 11 of Prohibition of Child Marriage Act, 2006 (hereinafter for the sake of brevity referred to as `the Act, 2006') read with Section 34 of IPC.
2. It is the case of the prosecution that the Child Development Officer, Madikeri, Kodagu district had filed a complaint alleging that she had received the marriage invitation card of petitioner/accused No. 1 Mohammed Rafiq son of K.H. Hamsa with Kolath Beebi daughter of P.A. Ali performed on 18.05.2014. The date of birth of said Kolath Beebi is 22.11.1999 as per her school records and 3 she was aged 14 years 5 months on the date of marriage. On the basis of the said complaint a case came to be registered in crime No. 95/2014 of Napoklu Police Station for the offence punishable under Sections 9, 10 and 11 of the Act 2006 read with Section 34 of the IPC. After investigation the Police have filed a charge sheet for the said offences and the case came to be registered in C.C. No. 264/2015. Petitioner/accused No. 1 remained absconding and therefore said case proceeded against accused Nos. 2 and 3 and split up charge sheet came to be filed against the petitioner/accused No. 1 and it is registered in C.C. No. 475/2017 and it is pending on the file of Principal Civil Judge and JMFC, Madikeri. As the petitioner/accused No. 1 had not appeared in the said criminal case, NBW came to be issued against him. Petitioner/accused No. 1 had filed a petition seeking anticipatory bail in Crl.Misc. No. 96/2020 before the Principal District Judge, Kodagu, Madikeri and the same came to be rejected by order dated 17.03.2020. 4 Therefore, the petitioner/accused No. 1 is before this Court seeking anticipatory bail.
3. Heard arguments of learned counsel for petitioner/accused No. 1 and learned High Court Government Pleader for the respondent - State.
4. Learned counsel appearing for petitioner/accused No. 1 would contend that the offences alleged against the petitioner/accused No. 1 are not punishable either with death or imprisonment for life. He would further contend that accused Nos. 2 and 3 who are father of petitioner/accused No. 1 and father of the victim girl have been acquitted after trial. He would further contend that as the trial Court has issued NBW petitioner/accused No. 1 has approached this Court seeking anticipatory bail.
5. Per contra learned High Court Government Pleader has contended that the punishment for the offences under Sections 9, 10 and 11 of the Act, 2006 are punishable with 5 rigorous imprisonment which may extend upto 2 years or with fine of Rs.1.00 lakhs or with both. He would further contend that offences alleged against petitioner/accused No. 1 are bailable offence and therefore, petition seeking anticipatory bail is not maintainable.
6. The present petition has been filed under Section 438 of Cr.P.C. seeking anticipatory bail. To apply for anticipatory bail under Section 438 of Cr.P.C. accusations of having committing a non-bailable offence is a must. The offence alleged against the petitioner/accused No. 1 are bailable as per classification of offences against other laws contained in part-II of the first schedule of the Code of Criminal Procedure, since the punishment prescribed is less than three years. Therefore, the petition filed by the petitioner/accused No. 1 under Section 438 of Cr.P.C. is not maintainable.
7. Learned counsel appearing for the petitioner/accused No. 1 further submits that 6 petitioner/accused No. 1 is ready to voluntarily appear before the trial Court within 10 days and he would file an application seeking bail. He would further seek for indulgence of this Court to direct the trial Court to consider the said application on the same day.
8. For the aforesaid reasons petition filed under Section 438 of Cr.P.C. is disposed of as not maintainable. Petitioner/accused No. 1 is directed to surrender before the trial Court within 15 days from today and is permitted to move an application seeking bail. The trial Court is directed to consider the application that may be filed by the petitioner/accused No. 1 on the same day in accordance with law.
Sd/-
JUDGE.
LRS.
Ct-NI