- 1 - NC: 2025:KHC-D:3991 CRL.P No. 103706 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.103706 OF 2024 [439(CR.PC)/483(BNSS)] BETWEEN: SANJEEV S/O. SHANTAPPA AMBIGER, AGE: 21 YEARS, OCC. COOLIE, R/O. HUVINAKOPPA VILLAGE-577429, TQ. SORAB, DIST. SHIVAMOGGA. … PETITIONER (BY SRI CHETAN MUNNOLI, ADVOCATE) AND: 1. THE STATE OF KARNATAKA THROUGH THE POLICE INSPECTOR, HANAGAL P.S., REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH. 2. SMT.SEETHA W/O. MAILARI KABBER, AGE: 36 YEARS, OCC. LABOURER, R/O. GANGA NAGAR, HANAGAL TOWN-581104, TQ. HANAGAL, DIST. HAVERI. … RESPONDENTS (BY SRI JAIRAM SIDDI, HCGP FOR R1; R2-NOTICE SERVED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 483 OF BNSS, SEEKING TO ENLARGE THE PETITIONER/ACCUSED IN SPL.SC.NO.80/2024, CRIME NO.199/2024 HANAGAL POLICE STATION, ON THE FILE OF ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-I, HAVERI REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 137(2), 87, 64 (2)(m) OF BNS, 2023 AND SECTIONS 4, 6, 8 AND 12 OF POCSO ACT, 2006, UNDER SECTION 9 OF PROHIBITION OF CHILD MARRIAGE ACT. MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.03.01 12:38:05 +0530 - 2 - NC: 2025:KHC-D:3991 CRL.P No. 103706 of 2024 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 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 ( ‘BNSS’ for short,) for grant of regular bail in Crime no.199/2024 by Hangal Police Station for offences punishable under Sections 137 (2), 87 and 64 (2) (m) of Bharatiya Nyaya Sanhita, 2023 (‘BNS’, for short), under Sections 4, 6, 8 and 12 of Protection of Children from Sexual Offices Act, 2012 (‘POCSO’ for short) and Section 9 of Prohibition of Child Marriage Act, 2006 (‘PCM Act’ for short) by sole accused (petitioner). 2. Sri Chetan Munnoli, learned counsel for petitioner submitted case of prosecution was that a complaint was filed by Smt.Seetha w/o Mailari Kabber on 24.07.2024 stating that she was married to Mailari and had a daughter (victim) with whom they were residing at Ganga Nagar in Hangal. While complainant worked at Garment factory at Bankapur, her son - 3 - NC: 2025:KHC-D:3991 CRL.P No. 103706 of 2024 worked at Bengaluru, her husband went to Hubballi for coolie work. On 21.07.2024 when she came back from work at 7:00 p.m., victim was found missing. After searching nearby and enquiry with relatives at different places and not finding victim, complaint was filed suspecting petitioner may have kidnapped victim. Based on complaint Crime no.199/2024 (supra) was registered for offences as mentioned above. 3. It was submitted based on complaint, investigation was completed and after tracing victim, her statement was got recorded under Section 164 of CrPC, wherein she did not state anything about forcible sexual intercourse. She merely stated being forced about forcible marriage. It was further submitted petitioner was arrested on 09.08.2024 and while he was in custody, investigation was completed and charge sheet filed on 25.09.2024. It was submitted since conclusion of trial was likely to be delayed and further presence of petitioner may not be required for custodial interrogation, he was entitled for bail. It was submitted as on date of incident, victim was almost 18 years admitted to be in love with petitioner. Therefore - 4 - NC: 2025:KHC-D:3991 CRL.P No. 103706 of 2024 arraignment for offences of kidnap, rape and under POCSO could not sustain. On above ground sought grant of bail. 4. On other hand Sri Jairam Siddi, learned HCGP for respondent – State opposed petition. It was submitted nature of offences alleged against petitioner were heinous and victim had implicated petitioner in her statement recorded under Section 164 of CrPC. There was prima facie case in support of prosecution case and that charge sheet filed on 25.09.2024 was based on statements of 42 witnesses. It was submitted merely on ground that victim had admitted to be in love with petitioner would not absolve petitioner of offences as consent of minor would not be valid. On above ground sought for rejection of petition. 5. Heard learned counsel and perused material available on record. 6. From above, only point that would arise for consideration is: “Whether petitioner is entitled for regular bail with conditions?” - 5 - NC: 2025:KHC-D:3991 CRL.P No. 103706 of 2024 7. This petition is for regular bail by sole accused for offences of kidnap under Section 137 (2), kidnapping for compelling marriage under Section 87, repeated rape on same woman under Section 64 (2) (m) of BNS, aggravated penetrative sexual assault and sexual harassment under provisions of POCSO, apart from adult male marrying a child under Section 9 of PCM Act. Among above offences those under Sections 87 and 64 (2) (m) of BNS and Sections 4 and 6 of POCSO attracted punishment in excess of 10 years upto life. Therefore nature of offences would be heinous. Though prosecution seeks to rely on statements of 42 witnesses to substantiate offences, it is seen that there is delay of 3 days in filing complaint giving rise to possibility of improvisation and implication of petitioner on afterthought. Further in her statement recorded under Section 164 of CrPC victim does not state about forcible sexual intercourse. But she makes clear statement that victim was in love with petitioner. 8. Though consent of victim when she is aged below 18 years would not be a valid ground for seeking for bail as held by Hon’ble Supreme Court in case of Independent Thought - 6 - NC: 2025:KHC-D:3991 CRL.P No. 103706 of 2024 Vs. Union of India and another reported in (2017) 10 SCC 800. High Court of Delhi, in case of Dharmender Singh Vs. State (Government of NCT of Delhi) reported in 2020 SCC OnLine Del 1267, has held tacit approval in fact could be taken into account while considering application for bail in cases involving offences under POCSO. Age of petitioner is 21 years while that of victim is a little shy of age of majority i.e., 17 years, 11 months and 4 days as on 21.07.2024. Even medical examination report does not indicate any injury as would be indicative of use of physical violence. In fact, in history column, it is recorded that victim willingly went with petitioner and had sexual intercourse without any force or pressure. 9. Though in her statement recorded under Section 164 of CrPC victim has stated about being threatened into marriage, same would support offence under Section 9 of PCM Act, attracting punishment upto two years only. That apart, after petitioner’s arrest on 09.08.2024, prosecution has completed investigation and filed charge sheet on 25.09.2024. Therefore, there would be no requirement of petitioner’s presence for - 7 - NC: 2025:KHC-D:3991 CRL.P No. 103706 of 2024 custodial interrogation. Taking note of decision of Hon’ble Supreme Court in case of Deshraj @ Musa vs. State of Rajasthan reported in 2024 SCC OnLine SC 2709, wherein petitioner alleged to have committed offences under POCSO granted bail awaiting trial, point for consideration is answered in affirmative subject to following conditions by clarifying that observation are on prima facie consideration for purpose of this order and would not bind trial Court at time of final disposal. Hence this, ORDER Petition is allowed. Petitioner/accused is released on bail in Crime no.199/2024 of Hngal Police Station for offences punishable under Sections 137 (2), 87 and 64 (2) (m) of BNS, under Sections 4, 6, 8 and 12 of POCSO and Section 9 of PCM Act, subject to following conditions: a) Petitioner/accused shall execute a personal bond for a sum of Rs.50,000/- with one sureties for likesum satisfaction of Court. - 8 - NC: 2025:KHC-D:3991 CRL.P No. 103706 of 2024 b) He shall not attempt to contact, intimidate victim or any other prosecution witnesses either directly or indirectly. c) He shall be regular in attending trial. d) He shall forthwith inform any change of his residence to Investigating Officer. SD/- (RAVI V.HOSMANI) JUDGE EM CT:PA LIST NO.: 1 SL NO.: 8