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Karnataka High Court

Prakash @ Parashivamurthy vs The State Of Karnataka on 18 May, 2017

                                           Crl.P.No.3226/2017

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF MAY, 2017

                         BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

         CRIMINAL PETITION NO. 3226 OF 2017

BETWEEN:

Prakash @ Parashivamurthy,
(Parashivamurthy.B. @ Prakash)
S/o Basavaiah,
Aged about 30 years,
R/at Hanuru (V),
Hanuru Town, Kollegala Taluk,
Chamarajanagara-571 439.                      .... Petitioner

(By Sri R.K.Mahadeva, Advocate)

AND:

The State of Karnataka,
The Station House Officer,
Ramapura Police Station,
Kollegala Sub-Division,
Chamarajanagar-571 439.

Rep.by State Public Prosecutor,
High Court Building Complex,
Bengaluru-560 001.                         .... Respondent

(By Sri K.Nageshwarappa, HCGP)

     This Criminal Petition is filed Under Section 439
CR.P.C by the Advocate for the petitioner praying that this
Hon'ble Court may be pleased to enlarge the petitioner on
bail in Crime No.122/2016 (SPL.C.No.13/2017) of
                                            Crl.P.No.3226/2017

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Ramapura Police Station, Chamarajanagar for the offence
P/US 419, 366(A), 376(2) (i) (n) and 420 of IPC and Sec.4,
and  of POCSO Act.

     This Criminal Petition coming on for Orders this day,
the Court made the following:


                         ORDER

The petitioner is charge sheeted in crime No.122/2016 of Ramapura Police Station, Kollegal Taluk of Chamarajanagara District for the offences punishable under Sections 4,6 and 8 of Protection of Children from Sexual Offences Act, 2012 (Hereinafter referred to as 'the POCSO Act' for short) and Section 366(A), 376(2)(i)(n), 419 and 420 IPC. The case is now pending in Special Case No.13/2017 before the Principal District and Special Judge, Chamarajanagara.

2. The case of the prosecution in brief is as follows:

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- CW1 is the father of CW2. CW2 is aged 16 years. The petitioner/accused though married and has three children, about 3 years prior to the complaint representing to minor-

CW2 that he is in love with her, promising to marry her sexually abused her. Further, on 14.11.2016 he kidnapped her and on 17.11.2016 he surrendered before the Ramapura Police along with the victim.

3. The petitioner is in judicial custody since 17.11.2016. The Special Court has rejected his bail application.

4. Sri R K Mahadeva, counsel for the petitioner contends that the charge sheet records show that CW2 is the consenting party Crl.P.No.3226/2017 4 to the alleged sexual relationship and accompanying the petitioner. He further contends that the petitioner himself has surrendered before the police and that is a mitigating factor. He further contends that in similar circumstances, this Court has granted bail and produces copies of the orders in Crl.P.Nos.108/2014, 1738/2014 and 200659/2014.

5. As against that Sri K Nageshwarappa, learned HCGP contends that there is sufficient material to show that victim is a minor and the petitioner has sexually abused her and kidnapped her. He further contends that the question of consent does not arise at all and Crl.P.No.3226/2017 5 even assuming so, the consent of the minor is no consent in the eye of law.

6. The charge sheet records contain the date of birth certificate of the victim. As per the said records, she is born on 19.09.1999. The statement of the victim-girl which is recorded on 17.11.2016 shows that the petitioner sexually abused her since 3 years prior to that. Reckoning the age of the victim on that basis, when the petitioner started to abuse her, she was hardly 14 years old. As per her statement, he has continuously sexually abused her since 3 years. The charge sheet records further show that the petitioner though already married and has three children, induced the girl that he is in love with her and sexually exploited her and Crl.P.No.3226/2017 6 kidnapped her from the custody of her lawful guardian.

7. The Parliament has not carved any exception in the POCSO Act to eclipse the criminal liability of the offender under Sections 4,6 and 8 of the POCSO Act on the ground of the consent of the victim. The said Sections are not pari-materia to Section 375 with regard to consent. Even Section 375 IPC states that the sexual act against a woman with or without her consent is the offence of rape, if she is aged below 18 years.

8. Even the consent of the adult woman contemplated under Section 375 is defined in explanation(ii) to Section 375 as unequivocal voluntary agreement of the woman. The Crl.P.No.3226/2017 7 proviso to the said explanation states that the non-resistance of the woman for the act of penetration alone shall not be regarded as consenting to the sexual activity.

9. Exception (ii) to explanation(ii) of Section 375 IPC saves the operation of Section 375 only with respect to the wife aged above 15 years. The word 'agreement' is not defined in the IPC. A reading of Sections 10 and 11 of the Indian Contract Act, 1872, shows that minors are not competent to enter into an agreement/contract. The scheme of the above enactments as can be gathered from the above provisions makes it clear that a safeguard is provided to the minor because, a minor person Crl.P.No.3226/2017 8 is not capable of understanding the implications of his or her acts.

10. If that be the position under the General Law, the POCSO Act is a special enactment to protect the children from sexual abuse, pornography etc. and the matters connected and incidental thereto, on the ground that the existing laws were not sufficient and effective enough to face the challenges of bringing the offenders of such offences against the children to the books and punish them. Therefore, the POCSO Act, has not incorporated any exemption to save a person from the criminal liability if he indulges into the sexual activities against a child on the ground of the consent of such child.

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11. In the eye of law, the consent of the minor is no consent at all. A minor cannot give consent. In the Judgments cited by the learned counsel for the petitioner, it appears the question of validity of the consent was not raised and therefore, that aspect of law is not dealt with. Therefore, the said judgments do not confer any benefit on the petitioner in this case.

12. As per the petitioner himself, the victim voluntarily accompanied him. That shows his influence on her. The trial is yet to be held. Therefore, it can be concluded that if bail is granted there is every likelihood of the petitioner tampering the victim-girl. Looked Crl.P.No.3226/2017 10 from any angle, this is not a fit case to grant bail. Accordingly, petition is dismissed.

Sd/-

JUDGE brn