Karnataka High Court
Shri Arun S/O Nagoji Kolhal vs The State Of Karnataka on 9 December, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 103719 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 103719 OF 2022
BETWEEN:
SHRI. ARUN S/O NAGOJI KOLHAL
AGE. 28 YEARS, OCC. BUSINESS,
R/O. AMBEWADI, TQ. CHANDAGAD,
DIST. KOLHAPUR, PIN-416509,
PRESENTLY RESIDING AT KRANTINAGAR,
GANESHPUR, TQ. AND DIST. BELAGAVI,
DIST. BELAGAVI, PIN-591108.
...PETITIONER
(BY SRI. S M MUCHHANDI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THE POLICE INSPECTOR,
CAMP POLICE STATION, BELAGAVI,
TALUK AND DIST. BELAGAVI,
PIN-590001.
REPRESENTED BY ITS,
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA,
AT DHARWAD BENCH,
PIN-580011.
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CRL.P No. 103719 of 2022
2. SHRI. MAHESH JAYAWANT KADOLKAR
AGE. 45 YEARS, OCC. CENTERING WORK,
R/O. H. NO.1718, LAXMI NAGAR,
HINDALAGA, TQ. AND DIST. BELAGAVI,
PIN-591108.
...RESPONDENTS
(BY SRI. PRASHANTH V. MOGALI, HCGP FOR R1;
SRI. S. S. MUTNAL, ADV. FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 439 OF CR.P.C.,
SEEKING TO THE PETITION BE ALLOWED AND THE
PETITIONER/ACCUSED MAY BE ENLARGED ON REGULAR BAIL
IN CAMP P.S. CRIME NO.54/2022 U/S 366(A), 344, 376(2)(n)
OF IPC AND SECTION 4 AND 6 OF POCSO ACT, PENDING TRIAL
IN SPL.CASE NO.258/2022, ON THE FILE OF ADDITIONAL
DISTRICT AND SESSIONS JUDGE, FTSC-I, BELAGAVI.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS TH IS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed by the sole accused under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.54/2022 of -3- CRL.P No. 103719 of 2022 Camp Police Station registered for the offences punishable under Sections 366(A), 344, 376(2)(n) of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Sections 4 and 6 of Protection of Children from Sexual Offence Act, 2012 (hereinafter referred to as the 'POCSO Act' for brevity), pending in Spl. Case No.258/2022 on the file of learned Additional District and Sessions Judge FTSC-I, Belgavi.
2. The case of the prosecution is that, the father of the victim girl has filed the complaint stating that her minor daughter victim girl studying in 10 t h class and the petitioner who is working in fast food was loving her and complainant advised both of them. That on 15.07.2022 the complainant and his wife had gone for work and they returned at 12 O'clock and saw that the victim girl was missing. They made -4- CRL.P No. 103719 of 2022 search for her but she was not traced. They also search for the petitioner and he was also missing and his phone number was switched off. They suspected that the petitioner might have kidnapped their daughter. The said complaint came to be registered in Crime No.54/2022 of Camp Police Station for the offence punishable under Section 363 of IPC against the petitioner/accused.
The victim girl appeared before the police on 29.08.2022 and gave statement. The police after completing the investigation have filed charge sheet against the petitioner for the offences punishable under Sections 366(A), 344, 376(2)(n) of IPC and Sections 4 and 6 of POCSO Act. The petitioner came to be arrested on 30.08.2022 and he is in judicial custody. The petitioner filed Criminal Miscellaneous No. 1332/2022 seeking bail and the same came to be rejected by the learned -5- CRL.P No. 103719 of 2022 Additional District and Sessions Judge FTSC-I, Belagavi by order dated 07.10.2022. Therefore, the petitioner/accused is before this Court seeking bail.
3. Heard the arguments of learned counsel appearing for petitioner, learned High Court Government Pleader for respondent No.1 and learned counsel appearing for respondent No.2.
4. The learned counsel for the petitioner would contend that as per the statement of victim girl she is having love affair with this petitioner and she eloped with him, where the petitioner alleged to have sexual intercourse with her. The victim girl stayed with the petitioner from 15.07.2022 to 29.08.2022. The statement of the victim girl recorded under Section 164 of Cr.P.C., where there is no allegation of sexual intercourse. The doctor who examined the victim girl has noted -6- CRL.P No. 103719 of 2022 that her hymen is intact and there is no evidence of recent sexual intercourse. Therefore, the offence punishable under Sections 4 and 6 of POCOS Act is not attracted against the petitioner. As the charge sheet is filed the petitioner is not required for custodial interrogation. With this, he prayed to allow the petition.
5. Per contra, learned High Court Government Pleader would contend that as per the school records the date of birth of the victim girl is 02.11.2006 and she was aged less than 16 years as on the date of alleged incident. It is his further submission that the statement of the victim girl has been recorded by the police wherein, she has stated that this petitioner had forcible sexual intercourse with her. The statements of the father and mother of the victim girl have been recorded under Section 164 of Cr.P.C. wherein, they have stated that this petitioner is married man having -7- CRL.P No. 103719 of 2022 wife and children. The voluntary statement of the petitioner has been recorded wherein, he has stated that he is married man. It is his further submission that the charge sheet material shows prima facie case against the petitioner for the offences alleged against him. With this, he prayed to reject the petition.
6. Learned counsel for respondent No.2 would contend that the petitioner is in habit of inducing the girls and on earlier two occasions he has induced two girls and now being a married man has kidnapped the victim girl and kept her with him for more than one month. It is his further submission that the petitioner inspite of being a married man to satisfy his lust has kidnapped the victim girl and had sexual intercourse with her. If the petitioner is granted bail there is threat to the complainant, victim girl -8- CRL.P No. 103719 of 2022 and other prosecution witnesses. With this, he prayed to reject the petition.
7. Having regard to the submissions made by learned counsel for the petitioner, learned High Court Government Pleader for respondent No.1 and learned counsel for respondent No.2, this Court has gone through the charge sheet records and the order passed by the Sessions Court.
8. The date of birth of the victim girl as per her school records is 02.11.2006 and she is aged 15 years 08 months as on the date of alleged offence. As per the statement of the victim girl recorded by the police she is having love affair with this petitioner and he induced her to come with him as he intended to marry her and she went with him and he kept her in his house and had sexual intercourse with her 3-4 times. Thereafter, he refused to marry her and brought her back to -9- CRL.P No. 103719 of 2022 Belagavi. The statement of the victim girl has been recorded under Section 164 of Cr.P.C. wherein, she has also stated that she is having love affair with this petitioner. The family member have advised her and warned her and also beaten her, as she was beaten by her parents she on 15.07.2022 eloped with this petitioner to Kolhapur, Maharashtra and the petitioner kept her in a room of his friend and they stayed there for 1 ½ month. There is no allegation of sexual intercourse in the said statement. The doctor who examined the victim girl has noted that her hymen is intact and there is no evidence of recent sexual intercourse. Learned counsel for the petitioner has contended that in view of the said opinion of the doctor, the offence punishable under Section 376(2)(n) of IPC and Sections 4 and 6 of POCSO Act are not attracted against the petitioner. As per the statements of the parents of the victim girl
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CRL.P No. 103719 of 2022 recorded under Section 164 of Cr.P.C., this petitioner is married man having wife and two children. The voluntary statement of the petitioner is recorded wherein, he has stated that he is married man having wife and children. Even though, the said argument of learned counsel for the petitioner is accepted that the offence punishable under Section 376(2)(n) of IPC and Sections 4 and 6 of POCSO are not attracted against the petitioner, but he has kidnapped the victim girl and kept her for 1 ½ month promising to marry her even inspite of he being a married man. Therefore, considering the said aspect, there is a prima facie case against the petitioner for the offences punishable under Sections 366(A) and 344 of IPC. If the petitioner is granted bail, there is threat to the victim girl, complainant and other prosecution witnesses. Therefore, the petitioner is
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CRL.P No. 103719 of 2022 not entitled for grant of bail. Hence, the petition is dismissed.
The Trial Court shall not be influenced by the observations made by this Court while passing this order.
Sd/-
JUDGE SMM