- 1 - NC: 2025:KHC-D:1695 CRL.P No. 100025 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.100025 OF 2025 [439(CR.PC)/483(BNSS)] BETWEEN: SHRIDHAR S/O. NINGAPPA SARAVAND, AGE: 32 YEARS, OCC. COOLIE, R/O. GUDDADBEVINHALLI, NOW R/AT. KAGINELE, TQ. BYADAGI, DISTRICT: HAVERI-581110. … PETITIONER (BY SRI V. M. BANAKAR, ADVOCATE) AND: 1. THE STATE OF KARNATAKA, THROUGH HAVERI WOMEN P.S, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD-580011. 2. IRANAGOUDA S/O. SHANKARAGOUDA KAREGOUDRA, AGE: 55 YEARS, OCC. AGRICULTURE, R/O. DEVAGIRI-YALLAPUR, NEAR KALMESWAR TEMPLE, TQ/DIST. HAVERI-581110. … RESPONDENTS (BY SRI JAIRAM SIDDI, HCGP FOR R1; SRI N.M.PATIL, AMICUS CURIAE FOR R2.) THIS CRIMINAL PETITION IS FILED U/SEC. 483 OF BNSS, 2023 (U/SEC. 439 OF CR.P.C) SEEKING TO ENLARGE THE PETITIONER/ACCUSED NO.1 ON BAIL, IN CONNECTION WITH HAVERI WOMEN POLICE STATION CRIME NO.59/2023, PENDING ON THE FILE OF ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-1 HAVERI, IN SPL. SC NO. 85/2023, REGISTERED FOR THE OFFENCES P/U/SEC. 363, 366, 109 AND 376(2)(N) R/W. 34 OF IPC AND U/SEC. 4, 6 AND 17 OF POCSO ACT 2012. MANJANNA E Digitally signed by MANJANNA E Date: 2025.01.30 10:16:49 +0530 - 2 - NC: 2025:KHC-D:1695 CRL.P No. 100025 of 2025 THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) This petition is filed under Section 439 of Criminal Procedure Code (‘CrPC’ for short) for grant of regular bail in Crime no.59/2023 by Haveri Women Police Station for offences punishable under Sections 363, 366, 109 and 376(2)(n) read with 34 of Indian Penal Code, 1860 (‘IPC’ for short) and Sections 4, 6 and 17 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ for short) by accused no.1 (petitioner). 2. Sri V.M.Banakar, learned counsel for petitioner submitted case of prosecution was that Iranagouda Karegoudra filed complaint on 16.10.2023 stating that his daughter (victim) who left home at 9:30 a.m., on 13.10.2023 stating that she was going to college for last exam and did not returned till 2:45 p.m., he enquired with Principal, who informed that victim had not visited college that day and all exams had concluded previous day, he along with relatives searched nearby and also enquired with relatives over phone. Unable to trace her and - 3 - NC: 2025:KHC-D:1695 CRL.P No. 100025 of 2025 suspecting someone might have kidnapped her, complaint under Section 363 of IPC was registered as Crime No.59/2023. 3. At outset, it was submitted there was delay of three days in filing complaint. Relying on decision of this Court in case of Shri Nagappa alias Nagaraj vs. The State of Karnataka and Another reported in 2022 (4) KCCR 3865, it was submitted this Court had granted bail on ground of delay in filing complaint, even where offences alleged were under POSCO. It was further submitted, on 19.10.2023 victim was found, her statement recorded under Section 161 of CrPC on same day wherein she stated that she became acquainted with petitioner during relative’s wedding 3 to 4 years earlier. Since then they were in love with each other. And on 13.10.2023 at 9:30 a.m., she left home on false pretext of attending last exam, went to Kaginele at 11:30 a.m. and informed petitioner that she had left home. She further stated, that he promised to marry her and took her to Hubballi and from there they went to house of his friend Vishwanath at Tarihal and during their stay from 13.10.2023, petitioner had sexual intercourse with her repeatedly until she was found by Police. - 4 - NC: 2025:KHC-D:1695 CRL.P No. 100025 of 2025 4. It was submitted, medical examination report of victim though showed rupture of her hymen, it did not reveal any injuries which would be indicative of use of physical force or violence. It was submitted, her statement under Section 164 of CrPC was recorded on 03.11.2023 wherein she reiterated about her romantic involvement with petitioner. 5. It was submitted, charge-sheet was filed on 12.12.2023 showing reliance on 39 witnesses by prosecution. It was submitted, petitioner was around 29 years of age and in custody for more than one year. It was also submitted that, he was permanent resident of Guddadbevinhalli, Byadagi Taluk, having age old parents with movable and immovable properties. It was submitted that, petitioner is without any criminal antecedents and was falsely implicated. Further as petitioner and victim were from different villages, more than 40 Kms apart, there would no basis for apprehension of prosecution about petitioner tampering with prosecution witnesses. On above grounds, sought for regular bail on any conditions. - 5 - NC: 2025:KHC-D:1695 CRL.P No. 100025 of 2025 6. On other hand, Sri Jairam Siddi, learned HCGP for respondent no.1-State opposed petition. It was submitted, victim was minor aged 16 years 16 days as on date of incident whereas accused was aged 32 years indicating large age gap. In her statement given before Police under Section 161 of CrPC, before Doctor at time of medical examination as well as in statement recorded under Section 164 of CrPC, victim consistently stated about petitioner indulging in sexual intercourse with victim who was minor. As per decision of Hon’ble Supreme Court in Independent Thought vs. Union of India reported in (2017) 10 SCC 800, in case of offences under POCSO, defence of sexual intercourse with consent, would not be available. 7. Sri N.M.Patil, learned Amicus Curiae appointed for respondent no.2 also opposed petition. It was submitted, there was sufficient explanation for delay in complaint namely about time spent searching nearby and enquiry with relatives. It was submitted, in her statement recorded under Section 161 of CrPC as well as under Section 164 of CrPC, victim stated about petitioner having repeated sexual intercourse with her during her age of minority, under promise of marriage, corroborated - 6 - NC: 2025:KHC-D:1695 CRL.P No. 100025 of 2025 by medical examination reports thereby substantiating offences alleged. It was submitted, under similar circumstances, this Hon’ble Court in case of SR Bujji A K A Babu G vs. State of Karnataka & Another in Crl.P.No.12080/2022 disposed of on 14.03.2023 had rejected bail petition, considering age of victim. It was submitted, in case petitioner was enlarged on bail, there was likelihood of he threatening prosecution witnesses. On above grounds, sought for rejection of petition. 8. Heard learned counsel. From above, point that arises for consideration is: “Whether petitioner is entitled for regular bail with conditions?” 9. This petition is for regular bail by sole accused, in Crime no.59/2023 by Haveri Women Police Station for offences punishable under Sections 363, 366, 109, 376 (2) (n) read with 34 of IPC and Sections 4, 6 and 17 of POCSO. 10. While Section 363 of IPC is for offence of kidnapping, Section 366 of IPC is for offence of kidnapping with intention to compel her to marry. Section 109 of IPC is about offence of abetment, petitioner is also accused to have - 7 - NC: 2025:KHC-D:1695 CRL.P No. 100025 of 2025 committed offence of repeated rape. Above offences attract maximum punishment of 10 years may extend up to imprisonment for life with fine. Offences alleged are grave and serious. 11. Prima facie examination of prosecution material would reveal that victim had left home on her own and went to petitioner’s village. Though she has stated that petitioner promised to marry her and thereafter they went to house of accused no.2 at Tarihal, where petitioner is stated to have indulged in sexual intercourse with her, despite her opposition. 12. As rightly pointed out, though Medical Examination Reports of victim show rupture of hymen and that she was used to act like sexual intercourse, there are no injuries found on any other parts indicating violence or physical force. Prosecution has completed investigation and recorded statements of various persons. However, whether prosecution would be able to establish offences as alleged would be matter for trial. Until then, accused (petitioner) would be deemed innocent. - 8 - NC: 2025:KHC-D:1695 CRL.P No. 100025 of 2025 13. Insofar as applications for bail involving offences under POCSO Act, Hon’ble High Court of Delhi in case of Dharmendra Singh v. The State (Govt of NCT Delhi) reported in 2020 SCC Online Delhi 1267, identified several factors to be taken into account as follows: “77. Though the heinousness of the offence alleged will beget the length of sentence after trial, in order to give due weightage to the intent and purpose of the Legislature in engrafting section 29 in this special statute to protect children from sexual offences, while deciding a bail plea at the post- charge stage, in addition to the nature and quality of the evidence before it, the court would also factor in certain real life considerations, illustrated below, which would tilt the balance against or in favour of the accused: a. the age of the minor victim : the younger the victim, the more heinous the offence alleged; b. the age of the accused : the older the accused, the more heinous the offence alleged; c. the comparative age of the victim and the accused : the more their age difference, the more the element of perversion in the offence alleged; d. the familial relationship, if any, between the victim and the accused : the closer such relationship, the more odious the offence alleged; e. whether the offence alleged involved threat, intimidation, violence and/or brutality; f. the conduct of the accused after the offence, as alleged; - 9 - NC: 2025:KHC-D:1695 CRL.P No. 100025 of 2025 g. whether the offence was repeated against the victim; or whether the accused is a repeat offender under the POCSO Act or otherwise; h. whether the victim and the accused are so placed that the accused would have easy access to the victim, if enlarged on bail : the more the access, greater the reservation in granting bail; i. the comparative social standing of the victim and the accused : this would give insight into whether the accused is in a dominating position to subvert the trial; j. whether the offence alleged was perpetrated when the victim and the accused were at an age of innocence : an innocent, though unholy, physical alliance may be looked at with less severity; k. whether it appears there was tacit approval-in- fact, though not consent-in-law, for the offence alleged; l. whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise; m. other similar real-life considerations.” (emphasis in original) 14. Applying same herein, it is seen as on date of incident, victim was aged about 16 years, while petitioner was 33 years as per prosecution and 29 years as per petitioner, indicating that indulgence between parties cannot be stated to have occurred during age of innocence. There are no familial - 10 - NC: 2025:KHC-D:1695 CRL.P No. 100025 of 2025 relation between them. Though there is allegation of petitioner inducing victim on promise of marriage, she has stated about they being in love with each other, which would be indicative of tacit-approval-in-fact. Petitioner is not a repeated offender and allegations are alleged to have been committed by petitioner alone. Though respondents have alleged possibility of petitioner influencing prosecution witness, fact that petitioner and victim reside in different villages would favour consideration. 15. Besides, petitioner was arrested on 19.10.2023 and has been in custody as undertrial for more than one year even before commencement of trial. As 39 witnesses are cited, conclusion of trial in any case is likely to be delayed. Due to completion of investigation, there would be no further need of petitioner for custodial interrogation. 16. Hon’ble Supreme Court in case of Deshraj @ Musa vs. State of Rajasthan reported in 2024 SCC OnLine SC 2709 has granted bail to accused facing charges under POCSO, awaiting trial, while in case of Sanjay Chandra v. Central Bureau of Investigation reported in 2012 (1) SCC 49, it held purpose of bail is only to secure presence of petitioner - 11 - NC: 2025:KHC-D:1695 CRL.P No. 100025 of 2025 during trial and not as a measure of punishment of undertrial. Therefore petitioner could be granted bail by imposing appropriate conditions. Hence, point for consideration is answered in affirmative. Accordingly following: ORDER Petition is allowed. Petitioner/accused is released on bail in Crime no.59/2023 of Haveri Women Police Station, pending before Addl. District and Sessions Judge, FTSC-1, Haveri in Spl.S.C.no.85/2023 for offences punishable under Sections 363, 366, 109 and 376 (2) (n) read with 34 of IPC and Sections 4, 6 and 17 of POCSO, subject to following conditions: a) Petitioner/accused no.1 shall execute a personal bond in a sum of Rs.1,00,000/- with two sureties for likesum to satisfaction of Court. b) He shall not leave jurisdiction of said Court without prior permission. c) He shall not contact or influence victim or any of prosecution witness either directly or indirectly either through any device or in- person. d) He shall not indulge in any criminal activities. - 12 - NC: 2025:KHC-D:1695 CRL.P No. 100025 of 2025 e) He shall be regular in attending Court proceedings. f) He shall mark his attendance with Investigation Officer once a month on any Sunday between 9:00 am to 4:00 p.m. g) It is clarified that views expressed are prima facie for purposes of this order and shall not influence final outcome after trial. h) Appreciation for services rendered by learned Amicus Curiae is placed on record, a direction is issued to Legal Services Authority to pay Rs.15,000/- towards services rendered. SD/- (RAVI V.HOSMANI) JUDGE RH CT:PA LIST NO.: 1 SL NO.: 8