- 1 - NC: 2025:KHC-D:5342 CRL.P No. 100828 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL PETITION NO.100828 OF 2025 (439(CR.PC)/483(BNSS)) BETWEEN: SHARMATALI S/O. REHAMANSAB KHANAVAR, AGE: 24 YEARS, OCC. GOUNDI, R/O. NAVALEHAL VILLAGE, TQ. CHANNAGIRI, DIST. DAVANAGERE-577544. …PETITIONER (BY SRI H.N. HANCHINAMANI, ADVOCATE) AND: 1. THE STATE OF KARNATAKA RATTIHALLI POLICE STATION, R/BY. ITS PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD-580011. 2. HUSENSAB S/O. BUDENSAB KHANAVAR, AGE: 40 YEARS, OCC. COOLIE, R/O. NAVALEHAL VILLAGE, TQ. CHANNAGIRI, DIST. DAVANAGERE, PIN CODE- 577544. …RESPONDENTS (BY SMT.GIRIJA S. HIREMATH, HCGP FOR R1; R2-NOTICE SERVED) THIS CRIMINAL PETITION IS FILED U/S.483 OF BNSS 2023, PRAYING TO DIRECT THE RATTIHALLI POLICE STATION TO RELEASE THE PETITIONER/ACCUSED ON BAIL IN SPL.S.C. NO.10/2024 (RATTIHALLI P.S. CRIME NO.82/2023) THE ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-I, HAVERI U/SECTIONS 363, 376 (2) (n), 376 (2) (f), 506 OF IPC AND SECTIONS 4, 6 AND 12 OF POCSO ACT. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:5342 CRL.P No. 100828 of 2025 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) 1. Heard Sri.H.N.Hachinamani, learned counsel for the petitioner and Smt.Girija S. Hiremath, learned High Court Government Pleader for respondent No.1-State. 2. Bail request by accused No.1 with the following prayer: “To direct the Rattihalli Police Station to release the petitioner/accused on bail in Special.S.C. No.10/2024 (Rattihalli P.S. Crime no.82/2023) the Additional District and Sessions Judge, FTSC-I, Haveri under Sections 363, 376 (2) (n), 376 (2) (f), 506 of IPC and Sections 4, 6 and 12 of POCSO Act.” 3. A complaint came to be lodged with Rattihalli Police Station, Hirekeruru circle, Haveri District by father of the victim girl contending that on 13.07.2023 at about 3:00 PM., his wife telephone to him and intimated that her daughter (victim girl) left the house without informing and she is not traceable. - 3 - NC: 2025:KHC-D:5342 CRL.P No. 100828 of 2025 3.1 Thereafter, parents of the victim girl searched for the victim girl in the relatives and friends houses but their attempts was in vain. Therefore, they lodged a missing complaint with Rattihalli Police Station on 14.07.2023. 4. Police after registering the case, thoroughly investigated the matter and they were able to apprehend the petitioner and the victim girl. The statement of victim girl was recorded. Based on the statement of the victim girl, police registered the case and police filed the charge sheet against the accused for the offence punishable under Sections 363, 376(2) (n), 376(2)(f) and 506 of the Indian Penal Code (for short, ‘the IPC’) and Sections 4, 6 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’). 5. Learned special Judge took cognizance and accused is now in judicial custody. Trial has commenced and victim girl has examined. She has supported the case of the prosecution, in toto in her deposition including the forcible sexual intercourse. - 4 - NC: 2025:KHC-D:5342 CRL.P No. 100828 of 2025 6. Attempts made by the petitioner to seek grant of bail is turned down by the learned special Judge. Thereafter, petitioner is before this Court. 7. Sri.H.N.Hachinamani, learned counsel for the petitioner reiterating the grounds urged in the petition, vehemently contended that it is a case of consensual sex and for the sake of maintaining the dignity of the family in the society, parents of the victim girl are instrumental in getting the false case foisted against the petitioner resulting in miscarriage of justice and sought for enlarging the petitioner on bail. 8. Per contra, Smt.Girija S. Hiremath, learned High Court Government Pleader for respondent No.1-State opposes the bail grounds and sought for rejection of the petition. 9. She would further contend that very fact that the victim girl is a minor, her consent, if any, is of no significance as consent by the minor is not a legal consent. Therefore, having regard to the reverse burden placed on the accused in the form of Sections 29 and 30 of the - 5 - NC: 2025:KHC-D:5342 CRL.P No. 100828 of 2025 POCSO Act, it is for the accused to place rebuttal evidence and there is rebuttal evidence placed on record except pleading and thus sought for rejection of the petition. 10. Respondent No.2-de facto complainant served with the notice of the bail petition, but remained absent. 11. Having heard the arguments of both sides, this court perused the material on record meticulously. On such perusal of the material on record, it is crystal clear that admittedly, the victim girl is a minor. 12. Missing complaint ultimately resulted in filing charge sheet for the aforesaid offences. Victim girl has not only given the statement before the trial Magistrate under Section 164 of the Cr.P.C. but also supported the case of the prosecution. Accused was found in the company of the victim girl in Nandoor village of Gulbarga District. Thereafter, they were apprehended and brought to Rattihalli Police Station. 13. Sri.H.N.Hachinamani, however tried to impress upon the Court that under the Muslim personal law, age of puberty is the age of marriage and therefore, it is a - 6 - NC: 2025:KHC-D:5342 CRL.P No. 100828 of 2025 consensual act that has taken place between the petitioner and the victim girl, which has been ignored by the learned special Judge. 14. Law on the point is no longer res integra. Hon’ble Apex Court in the case of Independent Thought Vs. Union of India ad Another1, did consider the interplay between the special enactment and the personal law of Mohammedan. 15. While considering the interplay, Hon’ble Apex court in the above decision ruled that a special enactment in the form of POCSO Act, would prevail upon the general and personal law of Mohammedans. Therefore, until and unless the victim is of 18 years, consent if any, obtained from such victim girl cannot be treated as a consent in the eye of law and therefore, the objections raised on behalf of the prosecution is well founded. 16. Taking note of the factual aspects of the matter especially victim girl supporting the case of the 1 AIR 2017 SC 4904 - 7 - NC: 2025:KHC-D:5342 CRL.P No. 100828 of 2025 prosecution in her deposition, this Court is of the considered opinion that at least at this stage the petitioner is not entitled for grant of bail by resorting to the special powers vested in this Court under Section 439 of the Cr.P.C. 17. Accordingly, the following order is passed. ORDER Criminal petition is rejected. SD/- (V.SRISHANANDA) JUDGE AC CT:PA LIST NO.: 1 SL NO.: 16