- 1 - NC: 2025:KHC-D:2475 CRL.P No. 102551 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO. 102551 OF 2024 [439(CR.PC)/483(BNSS)] BETWEEN: RAJU S/O. JAYAPPA ARIKATTI, AGE: 23 YEARS, OCC. COOLIE, R/O. HIREBUDHIAL, TQ. HIREKERUR, DIST. HAVERI-581111. … PETITIONER (BY SRI RAM P. GHORPADE, ADVOCATE) AND: 1. THE STATE OF KARNATAKA REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD-11. THROUGH HASABHAVI P.S. 2. DHARMAPPA S/O. HANUMANTAPPA JADAKAR, AGE: 48 YEARS, OCC. AGRICULTURE, R/O. HIREBUDIHAL, TQ. HIREKERUR, DIST. HAVERI-581111. … RESPONDENTS (BY SMT. GIRIJA S.HIREMATH, HCGP FOR R1; R2-NOTICE SERVED) THIS CRIMINAL PETITION IS FILED U/SEC.439 OF CR.P.C. SEEKING TO ENLARGE HIM ON BAIL WHO IS ACCUSED NO.1 PETITIONER IS SPL.SC AND ST NO.29/2024 WHICH IS PENDING BEFORE THE ADDITIONAL DISTRICT AND SESSIONS JUDGE FTSC-I HAVERI FOR THE OFFENCE U/SEC.363 OF IPC IN (HANSBHAVI POLICE REGISTERED THE CASE IN CRIME NO. 11/2024) FOR THE ALLEGED OFFENCES 363, 376(2)(N), 109, 114 OF IPC AND SEC. 4, 6, 17 POCSO ACT 2012 AND ALSO SEC.3 (2) (VA), SC AND ST ACT 2015. BHARATHI H M Digitally signed by BHARATHI H M Date: 2025.02.10 14:40:18 +0530 - 2 - NC: 2025:KHC-D:2475 CRL.P No. 102551 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 (for short, ‘BNSS’) for grant of regular bail in Crime no.11/2024 by Hansabhavi Police Station, Haveri, for offence punishable under Section 363, 376 (2) (n), 109, 114 of Indian Penal Code, 1860 (for short, ‘IPC’); Sections 4, 6 and 17 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short); Section 9 of Prohibition of Child Marriage Act, 2006 (‘PCM Act’ for short) and also Sections 3(2)(va) and 3(1)(w)(1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (‘SC/ST PoA Act’ for short) by accused no.1 (petitioner). 2. Sri Ram P. Ghorpade, learned counsel for petitioner submitted prosecution case was based on complaint filed by Dharmappa Jadaker on 27.01.2024 stating that he was residing at Hirebudihal Taluk, Hirekerur District along with his wife and children. At 1:30 a.m. on 27.01.2024 he woke-up to find - 3 - NC: 2025:KHC-D:2475 CRL.P No. 102551 of 2024 backdoor of his house opened and his younger daughter (victim) missing. When she could not be found, he suspected someone may have kidnapped her and filed complaint. Same was registered as Crime no.11/2024 by Haunsabhavi Police Station. 3. It was submitted, after tracing victim at Tumminakatti village on 07.04.2024, her statement was recorded under Section 161 of Code of Criminal Procedure, 1973 (‘CrPC’ for short) in which she implicated petitioner. But in her statement recorded under Section 164 of CrPC on 30.04.2024, she merely stated that she was in love with petitioner since three years on Instagram and on 26.01.2024, went with him to Bengaluru, got married at his aunt’s home on 12.02.2024 and stayed there. After some time, when she felt ill and went to hospital, she was found to be pregnant. As doctor asked for her Aadhar Card, they came back to Tumminakatti and resided at a rented house. 4. It was submitted, in history column of Medical Examination Report (‘MER’ for short) of victim conducted on 10.04.2024, she had stated that she was in love with - 4 - NC: 2025:KHC-D:2475 CRL.P No. 102551 of 2024 petitioner, went to Bengaluru with him on 27.01.2024, stayed his aunt’s house and got married on 12.02.2024. Thereafter, they had sexual intercourse multiple times and came back to Tumminakatti village on 01.04.2024 and stayed there in rented house. It was submitted, MER did not record any external or other injuries indicating involvement of physical force/violation. 5. It was submitted, there was delay in filing complaint and victim had not supported prosecution in her statement recorded under Section 164 of CrPC. It was submitted, charge-sheet was filed on 10.06.2024, wherein prosecution relied upon certificate issued by School Headmaster which was not acceptable as authentic for proving age of victim. 6. It was submitted, petitioner was 23 years old, working as coolie and permanent resident of Hirebudihal. He was arrested on 09.04.2024 and was in custody since then. As investigation was completed and charge-sheet filed, there would be no further requirement of custodial interrogation. On above grounds, sought for grant of bail. - 5 - NC: 2025:KHC-D:2475 CRL.P No. 102551 of 2024 7. 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 363, 376(2) (n), 109 and 114 of IPC read with Sections 4, 6 and 17 of POCSO Act and Section 9 of PCM Act and also Sections 3(2)(va) and 3(1)(w)(1) of SC/ST (POA) Act, attracting maximum punishment of imprisonment from 10 to 20 years etc therefore heinous and grave. 8. It was submitted, as per petitioner as well as victim, they got married on 12.02.2024, as on said date, age of victim would be 17 years 6 months. MER would indicate she got pregnant before attaining age of majority. In her statement recorded under Section 161 of CrPC, victim had clearly implicated petitioner stating that he married her against her wish and thereafter had sexual intercourse with her multiple times against her consent. It was further submitted, since petitioner and victim as well as prosecution witnesses were from same village, in case petitioner is released on bail, there was likelihood of petitioner attempting to tamper prosecution witnesses. On above grounds, sought rejection of petition. - 6 - NC: 2025:KHC-D:2475 CRL.P No. 102551 of 2024 9. Heard learned counsel. 10. Respondent no.2 served remained absent. 11. From above, point that arises for consideration is: “Whether petitioner is entitled for regular bail with conditions?” 12. This is a petition for regular bail filed by accused no.1 for offences under Section 376 (2) (n) of IPC and Sections 4 and 6 of POCSO Act which attract punishment from 10 years to 20 years. Therefore, nature of offence are grave and heinous. Though complaint was initially filed alleging only kidnap, after tracing of victim and recording of her statement, petitioner is arraigned for offences as stated above. 13. High Court of Delhi in case of Dharmendra Singh v. The State (Govt of NCT Delhi) reported in 2020 SCC Online Delhi 1267 has identified various factors that could be taken into account while considering application for bail in case of offences alleged under POCSO. As per prosecution, victim was minor aged 17 years 4 months at time of alleged marriage on 12.02.2024. She also got pregnant before she was traced at Tumminakatti on 07.04.2024. This would indicate that victim - 7 - NC: 2025:KHC-D:2475 CRL.P No. 102551 of 2024 had become pregnant due to sexual intercourse between petitioner and victim during said period. Applying ratio in Dharmendra Singh (supra), when age of petitioner was 23 years while that of victim 17 years and 4 months same would not indicate any case of grave perversion. There is no previous familiar relationship, but petitioner and victim had known each other over instagram, which would also not be suggestive of any perversion. MER of victim does not indicate any other injury as would be indicative of use of physical force or violence. Though victim is claimed to have implicated petitioner in her statement recorded under Section 161 of CrPC, but in her statement recorded under Section 164 of CrPC, she has not stated about petitioner indulging in forcible sexual intercourse. 14. Indeed, in view of ratio laid down by Hon’ble Supreme Court in case of Independent Thought v. Union of India reported in (2017) 10 SCC 800, consent of a minor would be immaterial, but observed in Dharmendra Singh (supra), a tacit approval in fact could be taken as a factor for purposes of bail application. There is no allegation of petitioner being repeat offender or of a social standing as would be in a dominating position to subvert trial. This is not a case of gang - 8 - NC: 2025:KHC-D:2475 CRL.P No. 102551 of 2024 rape or anyone else involved insofar as sexual assault is concerned. 15. In view of above and as prosecution has already completed investigation and filed charge sheet on 10.06.2024 and conclusion of trial would likely to be delayed, concerns of prosecution could be met by imposing appropriate conditions. Hence, point for consideration is answered in affirmative. Consequently, following: ORDER Petition is allowed. Petitioner/accused no.1 is ordered to be released on bail in Crime no.11/2024 of Hansabhavi Police Station for offences punishable under Sections Sections 363, 376(2) (n), 109 and 114 of IPC read with Sections 4, 6 and 17 of POCSO Act and Section 9 of PCM Act and also Sections 3(2)(va) and 3(1)(w)(1) of SC/ST (POA) 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 make himself available for purpose of investigation as and when required and co-operate with investigation. c) He shall not contact prosecutrix either directly or indirectly either through any device or in-person. - 9 - NC: 2025:KHC-D:2475 CRL.P No. 102551 of 2024 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) Petitioner shall mark his attendance before IO on once a month i.e. on 2nd Sunday of every month between 9:00 a.m. to 4:00 p.m. till conclusion of trial. h) Violation of any of conditions would entitle cancellation of bail. i) It is clarified that views expressed are prima facie and shall not influence final outcome after trial. SD/- (RAVI V.HOSMANI) JUDGE GRD,CLK CT:PA LIST NO.: 1 SL NO.: 2