- 1 - NC: 2025:KHC-D:2317 CRL.P No. 100202 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.100202 OF 2025 [439(CR.PC)/483(BNSS)] BETWEEN: SANJEEV S/O. ARJUNAPPA KELUR, AGE: 23 YEARS, OCC. MASON, R/O. H. AREGOPPA, TQ. HANGAL, DISTRICT. HAVERI, PIN CODE-581104. … PETITIONER (BY SRI B.S.KUKANAGOUDAR, ADVOCATE) AND: 1. THE STATE OF KARNATAKA THROUGH HANGAL POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, S.P.P. OFFICE, DHARWAD BENCH, DHARWAD-580011. 2. SMT. RENUKA W/O. CHANDRAPPA MADIWALAR, AGE: 45 YEARS, OCC. AGRICULTURE, R/O. H. AREGOPPA, TQ. HANGAL, DISTRICT. HAVERI, PIN CODE-581104. … RESPONDENTS (BY SRI JAIRAM SIDDI, HCGP FOR R1; R2-NOTICE SERVED) THIS CRIMINAL PETITION IS FILED U/S. 439. OF CR.P.C.,1973, SEEKING TO ALLOW THIS CRIMINAL PETITION AND PASS AN ORDER RELEASING THE PETITIONER/ACCUSED NO.1 ON BAIL, IN SPL.S.C.NO.76/2024 (HANGAL P.S. CRIME NO.159/2024) REGISTERED FOR THE OFFENCES PUNISHABLE U/S. 363, 366, 342, 376, 201 OF IPC, U/S. 4, 6, 8, 12, 17 OF POCSO ACT, 2012, AND U/S. 9, 10 OF THE PROHIBITION OF CHILD MARRIAGE ACT, 2006, PENDING ON THE FILE OF THE ADDL.DISTRICT AND SESSIONS JUDGE, FTSC-I, HAVERI. THIS PETITION, COMING ON FOR ORDERS, THIS ORDER WAS MADE THEREIN AS UNDER: MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.02.07 16:36:12 +0530 - 2 - NC: 2025:KHC-D:2317 CRL.P No. 100202 of 2025 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) This petition under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’ for short) is seeking for regular bail in Crime no.159/2024 of Hangal Police Station for offences punishable under Sections 363, 366, 342, 376, 201 of Indian Penal Code, 1860 (‘IPC’ for short); Sections 4, 6, 8, 12 and 17 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ for short) and Sections 9 and 10 of Prohibition of Child Marriage Act, 2006 (‘PCM Act’ for short), by accused no.1 (petitioner). 2. Sri BS Kukanagoudar, learned counsel for petitioner submitted case of prosecution was, Smt.Renuka Madiwalar (complainant) filed complaint on 20.06.2024 stating that after death of her husband - Chandrappa, she was residing with her daughter (victim) aged 17 years 7 months and her son by doing agriculture. On 19.06.2024, when she left home at 7:00 a.m. and came back from work at 5:00 p.m., she did not find victim at home. On enquiry, her son informed that victim had left home at 12:00 p.m. to get groceries from society. But, had not returned. Even after searching nearby with her son and enquiring with relatives, complainant was unable to trace - 3 - NC: 2025:KHC-D:2317 CRL.P No. 100202 of 2025 victim. Therefore, she apprehended that victim was either missing or petitioner to have kidnapped her. 3. It was submitted, initially complaint was registered as Crime no.159/2024 by Hangal Police Station under Section 363 of IPC against petitioner only. In course of investigation, Investigating Officer (‘IO' for short), secured victim and recorded her statement under Section 161 of CrPC., on 17.07.2024. Victim stated that while she was studying PUC, she became acquainted with petitioner, who was from her village and they fell in love with each other. During March when she was at home and called petitioner with her brother’s phone, he informed her about going to Maharashtra for livelihood. On 18.06.2024, when she met him, they decided to elope and get married. And on 19.06.2024 at 11:00 a.m. she left home met petitioner and they went to Hubballi by Bus and then to Yallamma Temple at Soundatti, where they exchanged garlands and petitioner tied sacred thread on her neck in presence of Vinayak (Accused no.6). Thereafter, they went to Maharashtra. On 20.06.2024, petitioner took her to a place where he was working earlier and stayed in a room. At night, petitioner told her that their marriage would be accepted if they have children. On that pretext he had sexual intercourse with her. Thereafter - 4 - NC: 2025:KHC-D:2317 CRL.P No. 100202 of 2025 on 21.06.2024, they returned to Belagavi and spent time at Bus stand and Railway station and on 24.06.2024, petitioner asked his brother Manju to come to Shiggaon. On reaching Shiggaon at 7:00 p.m. petitioner told victim that he would go to Kerala for livelihood and asked her to stay with Manju. Thereafter, Manju took her to house of petitioner’s uncle accused no.3 at Hale Bankapur and left her. On 17.07.2024, IO found her there. 4. It was submitted, in her statement recorded under Section 164 of CrPC, victim merely stated that she was in love with petitioner since four years and with intention to marry him, she went with him to Hubballi – Dharwad on 19.06.2024 and got married. Thereafter, they went to Maharashtra via Belagavi for two days and returned to Bankapur via Hubballi, to be traced by Police. She specifically stated she willingly had sexual intercourse and there was no threat/force by petitioner. 5. It was submitted, in view of victim’s assertion in her statement recorded under Section 164 of CrPC, that she was in love with petitioner went with him voluntarily and got married thereafter they had sexual intercourse with consent, victim herself would appear to have turned hostile to prosecution case. With entire thrust of prosecution case being dissolved, - 5 - NC: 2025:KHC-D:2317 CRL.P No. 100202 of 2025 petitioner would be entitled for bail. Factors such as petitioner was law abiding citizen holding immovable property and there being no criminal antecedents would also prompt consideration. 6. Sri Jairam Siddi, learned HCGP for respondent no.1 - State opposed petition. It was submitted, victim was 17 years and 7 months of age at time of incident. As per victim, petitioner was acquainted with her since several years and would have known that she was a minor. Despite same, petitioner took her away from home and had sexual intercourse with her. As per decision of Hon'ble Supreme Court in case of Independent Thought v. Union of India, reported in 2017 (10) SCC 800, consent of victim would be irrelevant where she was aged below 18 years. After completion of investigation, prosecution had filed charge-sheet alleging several heinous offences. It was submitted, trial was to commence and therefore it was not an appropriate case for grant of bail. 7. Heard learned counsel and perused material on record. 8. From above, point that arises for consideration is: “Whether petitioner is entitled for regular bail with conditions?” - 6 - NC: 2025:KHC-D:2317 CRL.P No. 100202 of 2025 9. This petition is for grant of regular bail in Crime no.159/2024, for offences under Sections 363, 366, 342, 376, 201 of IPC; Sections 4, 6, 8, 12 and 17 of POCSO and Sections 9 and 10 of PCM Act. Though offences invoked against petitioner were heinous, it was apparent that prosecutrix had not supported prosecution case. In her statement recorded under Section 164 of CrPC, she stated that she went with petitioner voluntarily got married him and thereafter had sexual intercourse with her consent. Indeed, as per ratio in Independent Thought’s case (supra), consent by a person below 18 years of age would not be valid defence against charges under POCSO, High Court of Delhi in Dharmendar Singh v. The State (Govt. of NCT Delhi), reported in 2020 SCC Online Delhi 1267, tacit approval in fact would be one of factors which could be considered while weighing bail applications. 10. As victim had stated about being in love with petitioner and had sexual intercourse with consent and without any threat/physical force etc., and there being no other factors indicating grave case of perversity, point for consideration is answered in affirmative. Hence, following: - 7 - NC: 2025:KHC-D:2317 CRL.P No. 100202 of 2025 ORDER Petition is allowed. It is ordered that petitioner/accused no.1 is ordered to be enlarged on bail in Crime no.159/2024 of Hangal Police Station for offences punishable under Sections 363, 366, 342, 376, 201 of IPC; Sections 4, 6, 8, 12 and 17 of POCSO and Sections 9 and 10 of PCM Act, subject to following conditions: a) He shall execute a personal bond in a sum of Rs.1,00,000/- with two sureties for likesum to satisfaction of trial Court. b) He shall appear before Investigating Officer for purpose of investigation as and when required and co-operate with investigation. c) He shall not threaten, tamper with or influence prosecution witnesses, either directly or indirectly. d) He shall not leave jurisdiction of above Court without prior permission, until completion of trial. e) He shall not indulge in any criminal activities. f) It is clarified that all observation herein would be prima facie and not binding on trial Court. SD/- (RAVI V.HOSMANI) JUDGE GRD CT:PA LIST NO.: 1 SL NO.: 0