Karnataka High Court
Sri.Marutesh S/O Jadiyappa vs State Of Karnataka on 16 December, 2020
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRL.P. NO.101531 OF 2020
BETWEEN:
SRI MARUTESH S/O: JADIYAPPA,
AGE: 23 YEARS, OCC: SHOP EMPLOYEE,
R/O: CHILANAKANAHATTI VILLAGE,
TQ: HOSAPETE, DIST: BALLARI-583101.
...PETITIONER
(BY SRI.SRINAND A.PACHCHAPURE, ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH MARIYAMMANAHALLI POLICE STATION
NOW REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA, DHARWAD.
BENCH AT DHARWAD-580011.
...RESPONDENT
(BY SMT. SEEMA SHIVA NAIK, HCGP)
THIS PETITION IS FILED UNDER SECTION 439 OF
CR.P.C., PRAYING TO GRANT BAIL TO THE
PETITIONER/ACCUSED IN SPL.CASE NO.812/2020 PENDING
ON THE FILE OF COURT OF I ADDL. DISTRCT AND SPECIAL
JUDGE, BALLARI (CRIME NO.73/2020) REGISTERED FOR THE
ALLEGED OFFENCES PUNISHABLE UNDER SECTION 363, 366,
376(f), 376(n) AND 376(3) OF IPC AND UNDER SECTION 4
AND 6 OF POCSO ACT AND UNDER SECTION 9 OF
PROHIBITION OF CHILD MARRIGE ACT, 2006, BY THE
RESPONDENT MARIYAMMANAHALLI POLICE STATION.
2
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 439 of Cr.P.C. to enlarge the petitioner on bail in Crime No.73/2020 of Mariyammanahalli Police Station. On completion of investigation, charge sheet has been filed for offences punishable under Sections 363, 366, 376(f), 376(n) and 376 (2) (3) of IPC and under Sections 4 and 6 of POCSO Act and Section 9 of Prohibition of Child Marriage Act, 2006.
2. It is alleged by the prosecution that the accused petitioner by inducing the minor victim, committed penetrative sexual assault on her and on 15.05.2020 married her against her will in Anjaneyaswamy Temple situated in Kudrimoli of Harovanahalli Village, Ballari. A complaint was lodged on 26.05.2020 by the Child Development Project Officer (CDPO), Hosapete, Ballari, on the 3 basis of which the aforesaid case was registered against the petitioner.
3. Learned counsel for the petitioner contends that both the petitioner and victim girl are related to each other and they had a love affair. He contends that the victim girl is not a minor as alleged by the prosecution. He further contends that under exception 2 to Section 375 of IPC, a sexual intercourse or sexual act by a man with his own wife, the wife not being under 15 years of age, is not rape. He contends that even according to the prosecution, the victim was aged 16 years and therefore the offences alleged are not attracted. He further contends that under Section 9 of the Prohibition of Child Marriage Act, 2006, the maximum punishment prescribed is rigorous imprisonment for 2 years or with fine. He submits that the petitioner is in judicial custody since 28.05.2020. Now the investigation is 4 completed and charge sheet has been filed. Accordingly, seeks to allow the petition.
4. In response, the learned HCGP has vehemently contended that the victim girl was a minor at the time of marriage and as per the material collected by the prosecution, the accused petitioner has committed penetrative sexual assault on her even prior to their marriage. She submits that in the event of release of the petitioner, he may tamper with the prosecution witnesses and thereby hamper the case of prosecution. Accordingly, she seeks to reject the petition.
5. As per the school certificate, the date of birth of the victim girl is 20.05.2004, therefore she is aged about 16 years and she was a minor as on the date of offence. It is seen that as per the medical report, the victim has become pregnant. However, the learned counsel has contended that 5 the victim is not a minor as alleged by the prosecution.
6. According to the prosecution, the petitioner married the victim on 15.05.2020. Learned counsel for the petitioner has drawn the attention of this Court to exception 2 to Section 375 of IPC to contend that any sexual act by a man with his own wife, if she is not under 15 years of age, does not amount to rape. The contention raised by the learned counsel for the petitioner that the offence committed by the petitioner will not attract the offence of rape, cannot be accepted or appreciated at this stage. It is not in dispute that petitioner has married the victim girl. Whether the accused has committed penetrative sexual assault against the minor victim even prior to the marriage or whether victim was not a minor as on the date of commission of offence is a matter which has to be 6 decided in due course. The prosecution has to establish its case after a full fledged trial. Hence, without expressing any opinion on the merits of the case, since the investigation is completed and charge sheet has been filed and also taking into consideration that the accused is in judicial custody from 28.05.2020, I am of the view that by imposing suitable conditions, he can be enlarged on bail. Accordingly, the following;
ORDER
a) Petition is allowed.
b) The petitioner/accused shall be released on bail in Crime No.73/2020 of Mariyammanahalli Police Station, now pending in Spl.Case No.812/2020 on the file of the Court of I Addl. District and Special Judge, Ballari, subject to the following conditions:
i) The petitioner/accused shall execute a bond in a sum of Rs.50,000/- with two sureties for 7 the likesum to the satisfaction of the learned Sessions Judge.
ii) The petitioner shall not tamper the prosecution witnesses and he shall not put any threat or inducement to the victim girl either directly or indirectly.
iii) The petitioner shall furnish proof of his correct residential address and shall inform the Court, if there is change in the address.
iv) The petitioner shall appear before
the trial Court on all dates of
hearing.
Sd/-
JUDGE
MSR