- 1 - NC: 2025:KHC-D:3325 CRL.P No. 100218 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.100218 OF 2025 [439(CR.PC)/483(BNSS)] BETWEEN: MR.KHADARABASHA S/O. DAVALASABA OLEKARA @ VALIKARA, AGE: 22 YEARS, OCC. COOLIE, R/O. BUKANATTI VILLAGE-583231, TQ. YELBURGA, DIST. KOPPAL. … PETITIONER (BY SRI NEELENDRA D.GUNDE, ADVOCATE) AND: 1. STATE OF KARNATAKA BY MUNIRABAD POLICE STATION, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD-580001. 2. SRI DEVAPPA S/O. MAREGOUDA GOUDRA, AGE: 44 YEARS, OCC. LABOURER, R/O. GOURIPUR VILLAGE-583231, TQ. KANAKAGIRI, DIST. KOPPAL. … RESPONDENTS (BY SMT.GIRIJA S.HIREMATH, HCGP FOR R1; SRI R.M. JAVED, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. (READ WITH UNDER SECTION 483 OF BNSS ACT), SEEKING TO GRANT BAIL TO THE PETITIONER IN CRIME NO.64/2024 PENDING ON THE FILE OF ADDL.DISTRICT AND SESSIONS JUDGE, FTSC-I AT KOPPAL IN SPL.SC.POCSO 31/2024, REGISTERED WITH MUNIRABAD POLICE STATION, REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 363, 376(2)(n), 344 OF IPC AND SECTION 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT-2012. MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.02.19 17:27:54 +0530 - 2 - NC: 2025:KHC-D:3325 CRL.P No. 100218 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) by accused for grant of regular bail in Crime no.64/2024 by Munirabad Police Station for offences punishable under Sections 363, 376 (2) (n), 344 of Indian Penal Code (‘IPC’ for short) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ for short). 2. Sri Neelendra D. Gunde, learned counsel for petitioner submitted case of prosecution was that a complaint was filed by Devappa Goudra stating that he was from Gouripur, Tq. Kanakagiri and had four children. Elder daughter Nagamma was married and residing at Ramdurg. And since 7-8 years he along with his wife were residing at Baputota in Malpe, Udupi and doing coolie work. They were visiting their village once every two-three months. After failing SSLC exams in 2022, their second daughter (victim) stayed home along with - 3 - NC: 2025:KHC-D:3325 CRL.P No. 100218 of 2025 other two children, cooking and managing household, in absence of parents. 3. It was further stated, while returning to Udupi after last Diwali, they left their two youngest children with their uncle and took victim along with them. But, when they often found her speaking to someone using complainant’s mobile phone. Therefore, on 04.04.2024 they sent her to Hale Lingapur village along with their nephew Ramesh Talkal. On 07.04.2024 at 3:30 p.m., they received call from Hale Lingapur informing them that since 3:00 p.m., victim was missing. When she was not traced even after they came there and searched everywhere nearby, suspecting her to have been kidnapped, filed complaint. Same was registered as Crime no.64/2024 by Munirabad Police Station for offence under Section 363 of IPC. 4. It was submitted, complaint was filed only for offence of kidnapping, even though victim had come along with him voluntarily, without any threat or force. It was submitted even when during investigation victim was traced on 24.04.2024 and statement recorded under Section 161 of CrPC, she had stated about befriending, Khadarbasha (petitioner) while she was residing with her parents at Baputota, in nearby - 4 - NC: 2025:KHC-D:3325 CRL.P No. 100218 of 2025 room. She had also stated about going with petitioner on his motorcycle to Kanakagiri on 14.11.2023 at 2:30 p.m. It was submitted, though she had stated about her refusal for having sexual intercourse, fact that she had not complained about it to anyone even in absence of any threat etc. clearly indicated her consent. Even subsequent incident of victim accompanying petitioner to Mysore was voluntary without any threat. 5. It was submitted, in her statement recorded under Section 164 of CrPC, on 04.05.2024, victim stated about her acquaintance with petitioner while they were at Baputota, her going with him on his motorcycle to Basirhal village, having sexual intercourse with him in a field there, without any allegation that same was against her wish. It was submitted, her further statement that she had accompanied petitioner to go to Doddakane village in Mysore, staying with petitioner there for fifteen days and having sexual intercourse with him five to six times, was also without any mention of threat or force. It was submitted, as per School Certificate, date of birth of victim was 24.12.2006 and as on date of incident she would be about 17 years 3 months and able to know about consequences of her actions. It was further submitted, Medical Examination Report - 5 - NC: 2025:KHC-D:3325 CRL.P No. 100218 of 2025 of victim did not indicate any other injuries which would indicate use of physical force/violence. 6. Such being case, petitioner was arrested on 25.04.2024 and prosecution filed charge-sheet on 13.06.2024 for offences under Sections 344, 363, 376 (2) (n) of IPC and Section 6 of POCSO. Thus, petitioner was innocent and had not committed any offences as alleged. It was submitted, none of offences in any case were punishable with death or imprisonment for life. Moreover, fact that same was consent of victim, would indicate that petitioner was wrongfully arraigned. 7. It was further submitted, since charge-sheet was already filed, petitioner would not be needed for custodial interrogation. And rejection of his bail application in SPC.SC.POCSO no.31/2024 by Addl. District and Sessions Judge, FTSC-1 at Koppal was on wholly untenable considerations. On above grounds sought for allowing petition. 8. On other hand, Smt.Girija S. Hiremath, learned HCGP appearing for respondent no.1 – State opposed petition. At outset, it was submitted as per Certificate issued by school where victim studied, her date of birth was 24.12.2006. Thus, - 6 - NC: 2025:KHC-D:3325 CRL.P No. 100218 of 2025 as on date of incident, she would be 17 year 3 months and 13 days of age. As offences alleged against petitioner were repeated rape on victim, punishable under provisions of 376 (2) (n) as well as under Section 6 of POCSO with imprisonment of more than 10 years and upto imprisonment for life, nature of offences were heinous. It was submitted, initially complaint was for offence of kidnapping, but after tracing of victim on 24.04.2024 and recording of her statement under Section 161 of CrPC and collecting material during investigation, petitioner was charged with commission of offences under Section 344 of IPC also. It was submitted, said statement of victim contained specific overt acts against petitioner, which would constitute offences alleged. It was further submitted in view of ratio laid down by Hon'ble Supreme Court in case of Independent Thought v. Union of India and Anr., reported in (2017) 10 SCC 800, ground of consent by victim who was below age of 18 years would not be available in case of offences under POCSO. 9. It was further submitted, though charge-sheet was filed and matter was committed for trial before Addl. District and Sessions Judge, FTSC-1 at Koppal, if petitioner were to be - 7 - NC: 2025:KHC-D:3325 CRL.P No. 100218 of 2025 enlarged on bail before recording deposition of victim, there was every possibility of petitioner threatening or tampering with prosecution witnesses. On said grounds, sought for rejection of petition. 10. Heard learned counsel and perused available material. 11. From above, point that arises for consideration is: “Whether petitioner is entitled for regular bail on conditions?” 12. This petition is for regular bail by sole accused, in Crime no.64/2024 by Munirabad Police for offences under Sections 344, 363, 376 (2) (n) of IPC as well as Section 6 of POCSO. Offence of repeated rape of same woman under Section 376 (2) (n) of IPC and Section 6 of POCSO were punishable with imprisonment in excess of 10 years upto imprisonment for life and therefore heinous in nature. 13. Since, offences alleged against petitioner include offences under POCSO, it would be relevant to refer to factors identified by High Court of Delhi in case of Dharmender Singh - 8 - NC: 2025:KHC-D:3325 CRL.P No. 100218 of 2025 v. State (Government of NCT of Delhi) reported in 2020 SCC OnLine Del 1267, as follows: “77. 13. Since, offences alleged against petitioner include offences under POCSO, it would be relevant to refer to factors identified by High Court of Delhi in case of Dharmender Singh - 8 - NC: 2025:KHC-D:3325 CRL.P No. 100218 of 2025 v. State (Government of NCT of Delhi) reported in 2020 SCC OnLine Del 1267, 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; 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; - 9 - NC: 2025:KHC-D:3325 CRL.P No. 100218 of 2025 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.” 14. Age of petitioner is 22 years, while that of victim 17 years 3 months 13 days, which would not indicate any case of grave perversion. There appears to be no previous familial or other relation between petitioner and victim. Prima facie, perusal of complaint, statement of victim recorded under Section 161 as well as Section 164 of CrPC would not appear to indicate any threat, coercion or inducement by petitioner against victim. Petitioner and victim are from same village or community as would place petitioner in dominating position qua victim. Medical Examination Report also does not reveal any injuries as would indicate use of violence or physical force while - 10 - NC: 2025:KHC-D:3325 CRL.P No. 100218 of 2025 perpetrating alleged offences. On other hand, there appears to be tacit-approval-in-fact though same would not constitute consent. Further investigation is completed and charge sheet is filed while petitioner was in custody. Therefore, there would be no requirement of custodial interrogation. Taking note of fact that Hon’ble Supreme Court in case of Deshraj @ Musa v. State of Rajasthan, reported in 2024 SCC OnLine SC 2709, granted bail to accused awaiting trial, and concerns of prosecution could be addressed by imposing stringent conditions. Hence point for consideration is answered in affirmative. Accordingly following: ORDER Petition is allowed. Petitioner/accused is released on bail in Crime no.64/2024 of Munirabad Police Station for offences punishable under Sections 344, 363, 376 (2) (n) of IPC and Section 6 of POCSO, subject to following conditions: a) Petitioner/accused shall execute a personal bond in a sum of Rs.1,00,000/- with two sureties for likesum to satisfaction of Addl. District and Sessions Judge-FTSC-1 at Koppal. b) He shall not leave jurisdiction of said Court without prior permission. - 11 - NC: 2025:KHC-D:3325 CRL.P No. 100218 of 2025 c) He shall not attempt to contact victim, threaten or intimidate her or any other prosecution witnesses, either through any device or in-person. d) He shall not threaten or tamper with any prosecution witnesses either directly or indirectly. e) He shall not indulge in any criminal activities. f) He shall be regular in attending Court proceedings. g) It is clarified that views expressed herein are on prima facie consideration for purposes of this order and shall not influence final outcome after trial. SD/- (RAVI V.HOSMANI) JUDGE GRD CT:PA LIST NO.: 1 SL NO.: 7