Karnataka High Court
Shri.Raju Allabhaksha Pendari @ ... vs The State Of Karnataka on 25 March, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF MARCH, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.100417/2019
BETWEEN:
SHRI.RAJU ALLABHAKSHA PENDARI @ JAMADAR,
AGE: 24 YEARS, OCC: MECHANICAL,
R/O: SHIVAYOGI NAGAR,
ATHANI, TQ: ATHANI,
DIST: BELAGAVI.
...PETITIONER
(BY SRI.S.R.KAMAT, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD,
THROUGH ATHANI POLICE STATION,
DIST: BELAGAVI.
...RESPONDENT
(BY SRI.PRAVEEN K UPPAR, HCGP)
THIS PETITION IS FILED UNDER SECTION 439 OF CR.P.C.
SEEKING TO ENLARGE THE PETITIONER/ACCUSED ON BAIL IN
ATHANI P.S. CRIME NO.477/2018, DATED 19.11.2018 FOR THE
OFFENCES P/U/S 363, 376(2)(N) OF IPC AND 4 & 6 OF POCSO
ACT, IN S.C.NO.17/2019.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
2
ORDER
Heard the petitioner's counsel and the learned HCGP.
2. The factual matrix of the case is that the complainant had lodged the complaint stating that on 17.11.2018 at 8.30 a.m. he dropped his daughter to the college as there was an examination and she was not returned to home till evening and on enquiry, he came to know that she has not attended the college and not appeared for the exam and in spite of searching, she was not found and hence, when he contacted his relatives, one of the relative informed that she was found along with this petitioner and hence, he lodged the missing complaint against the petitioner herein. Based on the complaint, the police have registered Crime No.477/2018 for the offence punishable under Section 363 of IPC and after the investigation case also registered for the offence punishable under Section 3 376(2)(N) of IPC and Sections 4 and 6 of POCSO Act and this petitioner was arrested on 20.11.2018 and he is in judicial custody.
3. The petitioner's counsel would submit that 164 statement of the victim discloses that there was no any allegation against this petitioner and he is the only son and he is mechanic by profession and he is in custody from last three months and he is having permanent abode and hence, he may be enlarged on bail.
4. Per contra, the learned HCGP would submit that the medical evidence disclose that hymen is not intact and she was subjected to sexual act and apart from that she is aged about 17 years and the question of consent does not arise and the contention of the petitioner that there was no any injury cannot be 4 accepted and hence, prayed this Court to reject the petition.
5. Having heard the petitioner's counsel and the learned HCGP, the main contention of the petitioner is that the factual aspects discloses that both of them loving each other and hence, this Court can exercise discretion in favour of the petitioner. In support of his contention, the counsel has relied upon the order of this Court passed in Crl.Pet.No.100080/2018 and contend that in the similar set of facts this Court has enlarged the accused and hence, this petitioner is also entitled for bail.
6. Having considered the factual aspects and also 164 statement of the victim, no doubt she has not made any allegation against the petitioner and on perusal of the medical examination report which is available before this Court, it discloses that the hymen 5 is not intact and no external injuries and she was subjected to sexual intercourse. The report of the doctor discloses that she is aged between 17-18 years and the Dental examination report discloses that she is aged between 17-19 years and on perusal of her age, she is below the age of 18 years and her date of birth is 30.11.2000 and having taken note of her age which is mentioned in the transfer certificate and SSLC Marks Card she is aged about 17 years and having taken note of the offence invoked under Sections 4 and 6 of POCSO Act and the offence invoked under Section 376 of IPC, the special enactment prevails and not the general law. Under the special enactment if the child is below the age of 18 years she is a minor and the question of consent does not arise. Having taken note of the material on record that the hymen is not intact and she is subjected to sexual assault and she being a minor, I am of the opinion that it is not a fit case to exercise powers under 6 Section 439 of Cr.P.C. and though this Court granted discretionary relief in favour of the accused in the other case is not a ground to exercise discretion in favour of this petitioner. Having taken note of the factual aspects of the case and also particularly, the age of the victim, I do not find any force in the contention of the petitioner's counsel to enlarge the petitioner on bail.
7. In view of the above discussions, this Court proceed to pass the following:
ORDER The petition is rejected.
Sd/-
JUDGE sh