Karnataka High Court
Balaraju vs State Of Karnataka on 23 May, 2024
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NC: 2024:KHC:17537
CRL.P No. 4335 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL PETITION NO. 4335 OF 2024
BETWEEN:
BALARAJU S/O KENGAPPA,
AGED ABOUT 21 YEARS,
R/A KEREKODIHATTI VILLAGE,
GOWDANAHALLI POST, HIRIYURU TALUK,
CHITRADURGA DISTRICT - 574 212.
(IN JUDICIAL CUSTODY SINCE 23.02.2024)
...PETITIONER
(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY
HIRIYUR RURAL POLICE STATION,
CHITRADURGA DISTRICT - 577 498,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA BUILDING,
BENGALURU - 560 001.
2. KUM. VANI MARUTHI KARLEKAR,
MAJOR, FATHER NAME NOT KNOWN,
Digitally signed by AGED ABOUT 30 YEARS,
CHANDRASHEKAR GOVT. OFFICIAL NON-GAZEETED
LAXMAN
KATTIMANI ANGANAVADI SUPERVISOR,
Location: HIGH KEREKODIHATTI VILLAGE,
COURT OF OFFICE OF THE CDPO,
KARNATAKA
HULIYAR ROAD, HIRIYUR TOWN,
CHITRADURGA DISTRICT -577 599.
...RESPONDENTS
(BY SRI. RAHUL RAI K., HCGP)
THIS CRL.P IS FILED U/S 439 OF CR.PC PRAYING TO ENLARGE
THE PETITIONER ON BAIL IN THE CR.NO.545/2023 REGISTERED IN
HIRIYUR RURAL POLICE STATION, CHITRADURGA DISTRICT, FOR
THE OFFENCE P/U/S 376(2)(n) OF IPC AND U/S 9 OF PROHIBITION
OF CHILD MARRIAGE ACT AND U/S 4, 6, 5(J)(II), 5(L) OF POSCO
ACT, 2012, PENDING ON THE FILE OF THE COURT OF SPECIAL II
ADDL. DISTRICT AND SESSIONS JUDGE, CHITRADURGA.
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NC: 2024:KHC:17537
CRL.P No. 4335 of 2024
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The petitioner-accused is before this Court seeking grant of bail under Section 439 of Cr.P.C. in Crime No.545/2023 of Hiriyur Rural Police Station, initially registered for the offence punishable under Section 376(2)(n) of the Indian Penal Code (for short 'IPC'), Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short "the POCSO Act") and under Section 9 of the Child Marriage Restraint Act, 1929 (for short "the CMR Act") on the basis of the first information lodged by the informant, Kumari Vani Maruti Karlekar and the charge sheet is filed for the offences punishable under Sections 376(2)(n) of IPC, Sections 4, 6, 5(j)(ii) and 5(L) of POCSO Act and Section 9 of the CMR Act in Spl.Case No.23/2024 pending on the file of Special II Additional District and Sessions Judge, Chitradurga.
2. Heard Sri. V.B. Siddaramaiah, learned Counsel for the petitioner and Sri. Rahul Rai K., learned High Court Government Pleader for the respondent -State. Perused the materials on record.
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NC: 2024:KHC:17537 CRL.P No. 4335 of 2024
3. It is the case of the prosecution that the petitioner herein stated to have married the victim before she completes the age of 18 years. She had been to hospital for regular check up and disclosed her age as 17 years to the hospital authority. The hospital authority after taking into consideration the said age, informed the CDPO, who is the complainant herein has lodged a complaint before the jurisdictional police. The jurisdictional police have registered a case against the petitioner for the offence punishable under Sections 376(2)(n) IPC, Sections 4, 5(j)(ii)(1) and 6 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act. The jurisdictional police after conducting investigation, submitted the charge sheet. The petitioner is in judicial custody since 23.02.2024.
4. It is the submission of learned counsel for the petitioner that there is a custom prevailed in the community that the girls in the community should marry, soon after they attained 18 years. The petitioner herein married the victim after having confirmed that the victim has completed 18 years. Even assuming that the victim has not completed 18 years, as on the date of marriage, she had completed 17 years. -4-
NC: 2024:KHC:17537 CRL.P No. 4335 of 2024 Therefore, Section 376 of IPC would not attract against the petitioner.
5. It is further submitted that there is an exception - II appended to Section 375 of IPC. As per the said exception, if a man commits sexual intercourse with his own wife, she being not less than 15 years, it is not an offence. Therefore, the said exception is applicable to the case on hand and moreover the provisions under the POSCO Act will have to be looked into on humanitarian ground. Having submitted thus, the learned counsel for the petitioner prays to allow the petition.
6. Per contra, learned High Court Government Pleader vehemently opposed the bail petition and submits that the offence is committed against a minor and now she has given birth to a baby. Since the petitioner committed heinous offence, the petitioner is not entitled for bail. Hence, the learned HCGP prays for dismissal of the petition.
7. After having heard learned counsel for the respective parties and also on perusal of the averments made in the charge sheet, it is noticed that allegations made against the petitioner are serious in nature. Further, it appears that -5- NC: 2024:KHC:17537 CRL.P No. 4335 of 2024 the petitioner married the victim when she was below 18 years and their marriage was solemnized in the presence of elders. As per the learned counsel for the petitioner, it is an arranged marriage. Therefore, it is appropriate at this stage to refer Section 375 exception (2) of IPC, which reads thus:
"Exception 2 - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
8. On careful reading of the above said provision shows that Section 376(2)(n) of IPC does not attract against the petitioner, since the petitioner-accused is the husband of the victim. Therefore, the petitioner is entitled for bail. Accordingly, I proceed to pass the following:
ORDER The petition is allowed.
The petitioner is ordered to be enlarged on bail in Crime No.545/2023 of Hiriyur Rural Police Station in Spl.Case No.23/2024 pending on the file of Special II Additional District and Sessions Judge, Chitradurga on the following conditions: -6-
NC: 2024:KHC:17537 CRL.P No. 4335 of 2024
i) The petitioner shall execute personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with one surety for the likesum to the satisfaction of the jurisdictional Court.
ii) The petitioner shall not threaten the prosecution witnesses.
iii) The petitioner shall appear before the Trial Court on all dates of hearing.
iv) The petitioner shall not leave the jurisdiction of the Court till disposal of the case.
If in case, the petitioner violates any of the bail conditions as stated above, the prosecution will be at liberty to seek for cancellation of bail.
Sd/-
JUDGE BMC :
List No.: 1 Sl No.: 4