- 1 - NC: 2025:KHC-D:3894 CRL.P No. 100320 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.100320 OF 2025 [439(CR.PC)/483(BNSS)] BETWEEN: SMT.SANGEETA W/O. SURAJ SALUNKE, AGE: 25 YEARS, OCC. COOLIE, R/AT. NIPPANI, TQ. CHIKKODI, DIST. BELAGAVI. … PETITIONER (BY SRI MRUTYUNJAY TATA BANGI, ADVOCATE) AND: 1. THE STATE OF KARNATAKA THROUGH POLICE INSPECTOR, VIDYAGIRI POLICE STATION, R/BY. S.P.P. HIGH COURT OF KARNATAKA, DHARWAD-590001. 2. SMT.SUSHEELA W/O. VINOD SALUNKE, AGE: 35 YEARS, OCC. BUSINESS, R/AT. 4TH BLOCK, RAJUGANDHI BELLAD NAGAR, DHARWAD-590007. … RESPONDENTS (BY SMT.GIRIJA S. HIREMATH, HCGP FOR R1; SRI V.P.VADAVI, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 483 OF BNSS (READ WITH UNDER SECTION 439 OF CR.P.C.) SEEKING TO GRANT BAIL TO THE PETITIONER IN VIDYAGIRI CRIME NO. 229/2024 PENDING BEFORE II ADDL. DISTRICT AND SESSIONS JUDGE-FTSC-I, AT DHARWAD FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 137(2), 64 AND 87 OF BNS AND SECTIONS 4 AND 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT- 2012. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.02.27 15:55:09 +0530 - 2 - NC: 2025:KHC-D:3894 CRL.P No. 100320 of 2025 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) This petition is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’ for short) for grant of regular bail in Crime no.229/2024 by Vidyagiri Police Station for offences punishable under Sections 137 (2), 64 and 87 of Bharatiya Nyaya Sanhita, 2023 (‘BNS’ for short) and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ for short) by sole accused (petitioner). 2. Sri Mrutyunjay Tata Bangi, learned counsel for petitioner submitted case of prosecution was that on 13.12.2024, Smt.Susheela Salunke (complainant) filed complaint stating that she was doing cloth business and residing with her husband Vinod and daughter (victim no.1) aged 14 years at Rajiv Gandhinagar, Dharwad. She further stated victim no.2 and 3 were children of her sister-in-law Smt.Geetha who was residing at no.14, Bellad nagar, Rajiv Gandhinagar. And that petitioner had come to stay with her since one month. At 10:00 a.m., on 12.12.2024, complainant went for her business leaving victim no.1 at home. On returning at 7:00 p.m., she found her missing. On enquiry, - 3 - NC: 2025:KHC-D:3894 CRL.P No. 100320 of 2025 Smt.Geeta told her that victim no.1 had gone with victim no.2 and 3 with petitioner for buying them clothes. But, when she tried calling petitioner on her mobile phone, it was switched off. Alleging petitioner had kidnapped victims, she filed complaint. Same was registered as Crime no.229/2024 for offences punishable under Section 137 (2) of BNS. 3. During course of investigation at about 2:30 p.m. on 16.12.2024, Investigating Officer traced victims with petitioner at Savantwadi. On enquiry, victim no.2 stated that about 20 days earlier, petitioner forcibly had sexual intercourse with him, which she repeated several times later. And that on 12.12.2024, petitioner told him that she would marry him. She told other victims that she would take them on a trip for few days and took them. When they were in Sankeshwar, victim asked to be taken back home. But they were forcibly taken to Savantwadi, from where they were rescued by police. Based on said statement, complaint was enlarged for offences under Sections 64 and 87 of BNS as well as Sections 4 and 6 of POCSO. 4. It was submitted, petitioner was relative of victim had taken them to buy clothes. Therefore, there was no basis - 4 - NC: 2025:KHC-D:3894 CRL.P No. 100320 of 2025 for offence of kidnapping. Though initially only kidnapping was alleged, addition of other offences was totally unjustified that too based on vague statement of victim no.2 that it was ‘since 20 days’ and without recording statements of victims no.1 and 3 who had accompanied petitioner and victim no.2. It was submitted, petitioner and respondent no.2 being relatives were engaged in same business. Therefore for past dispute as well as business rivalry, petitioner was falsely implicated. 5. It was submitted, though incident occurred on 12.12.2024, complaint was filed on 13.12.2024 with delay of one day. Even said aspect would establish that complaint was filed on afterthought to harass petitioner. It was submitted, except mere statement of victim no.2, there was no other corroborative material to implicate petitioner. 6. It was submitted, petitioner’s husband had passed away in year 2024, leaving behind three children without any one to look after them and who were since placed in childcare center. It was submitted, petitioner was law abiding citizen and permanent resident of Nippani Taluk and was falsely implicated. It was submitted, petitioner was arrested on 16.12.2024. - 5 - NC: 2025:KHC-D:3894 CRL.P No. 100320 of 2025 Therefore, petitioner was made to languish in jail without justification. 7. It was submitted, in view of order passed by this Court in Kum.Shilpa N., v. State of Karnataka and Anr. (Criminal Petition no.2236/2024 disposed of on 08.04.2024), offences under Sections 3 and 4 of POCSO Act would not be attracted, as words “he” was used in Section 3 of POCSO. On above grounds sought for allowing petition. 8. On other hand, Smt.Girija S. Hiremath, learned HCGP for respondent no.1 – State opposed petition. It was submitted, offences alleged against petitioner were under Sections 4 and 6 of POCSO apart from Sections 137 (2), 87 and 64 of BNS, which were punishable with imprisonment of upto 20 years and therefore heinous. It was submitted, age of victims was only 14, 15 and 16 years respectively, and petitioner being a relative had not only taken minor victims away from lawful custody of their guardian without permission and committed penetrative sexual assault on victim no.2. 9. It was submitted, when complaint was filed, complainant was unaware of other offences until tracing of victims and recording statement of victim no.2, which disclosed - 6 - NC: 2025:KHC-D:3894 CRL.P No. 100320 of 2025 commission of other offences. It was submitted, statement contained specific overt acts for offences alleged. It was submitted, investigation was in progress, if petitioner was granted bail, same would hamper investigation and she would also likely to destroy evidence. Therefore, sought for rejection of bail petition. 10. Sri VP Vadavi, learned counsel for complainant opposed petition. It was submitted, petitioner had kidnapped victims who were minors, from lawful custody of their natural guardians, and forcibly had penetrative sexual intercourse with victim no.2. Therefore offences alleged were substantiated. It was submitted, fact that victim no.2 was just 16 years of age, while petitioner was 25 years old married woman by taking advantage of his age, would indicate gravity of offence. It was submitted, decision in Kum.Shilpa’s case (supra) was clearly distinguishable on facts. In any case, provisions of POCSO Act were gender neutral and did not discriminate and exclude women from their ambit. Therefore, there was no merit in petition and sought for rejection. 11. Heard learned counsel and perused available material. - 7 - NC: 2025:KHC-D:3894 CRL.P No. 100320 of 2025 12. From above, only point that arises is: “Whether petitioner is entitled for regular bail on conditions?” 13. This petition is for regular bail by sole accused, in Crime no.229/2024 for above mentioned offences. It is seen, offences under Sections 137 (2), 87 and 64 of BNS and Sections 4 and 6 of POCSO. While offences of kidnapping under Section 137 (2) and kidnapping for compelling marriage against will under Section 87 of BNS would be punishable with imprisonment of upto 10 years, offences of rape under Section 64 of BNS and offences of penetrative/aggravated penetrative sexual assaults under Sections 4 and 6 of POCSO would be punishable with not less than 10 years and upto imprisonment for life, would indicate nature of offences as heinous. 14. Though several grounds are urged in support of prayer for grant of bail, since offences alleged include offences under POCSO, it would be appropriate and relevant to examine claim in light of factors identified in Dharmender Singh 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 - 8 - NC: 2025:KHC-D:3894 CRL.P No. 100320 of 2025 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; - 9 - NC: 2025:KHC-D:3894 CRL.P No. 100320 of 2025 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.” 15. Testing submissions of parties in light of above factors, petitioner is married woman aged 25 years, while victim no.2 is aged 16 years. Thus apart from grave difference of age, petitioner being married and relative of victim would be suggestive of perversion, regardless of consent of victim, in view of ratio laid down in Independent Thought v. Union of India and Another, reported in (2017) 10 SCC 800. In - 10 - NC: 2025:KHC-D:3894 CRL.P No. 100320 of 2025 addition, in case, petitioner had taken victims for buying clothes, absence of any effort by petitioner to inform guardians of victims and obtaining permission would be another factor going against petitioner. 16. At same time, petitioner is resident of different village than victim, offence was not committed in group and absence of even allegation of physical violence would be in favour of petitioner. 17. On overall consideration of above factor and taking note of fact that matter is still under investigation, it would not be appropriate to grant bail to petitioner at this stage. Hence, point for consideration is answered in negative. Consequently following: ORDER Petition is dismissed. SD/- (RAVI V.HOSMANI) JUDGE GRD CT:PA LIST NO.: 1 SL NO.: 14