- 1 - NC: 2025:KHC-D:1933 CRL.P No. 103503 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 31ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.103503 OF 2024 [439(CR.PC)/483(BNSS)] BETWEEN: SHRI MALLIKARJUNA @ MALLIK C S/O. RUDRAPPA, AGE: 25 YEARS, OCC. FARMER, R/O. 4TH WARD, BEHIND JUMMA MASJID, DEVASAMUNDRA VILLAGE-583129, TQ: KAMPLI, DIST: BALLARI. … PETITIONER (BY SRI J.BASAVARAJ, ADVOCATE) AND: 1. THE STATE OF KARNATAKA (THROUGH KAMPLI P.S. ) REPRESENTED BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, AT DHARWAD-580001. 2. SMT. LALITHAMMA W/O. LATE NAGARAJ, AGE: 22 YEARS, OCC. HOUSEHOLD WORK, R/O. 4TH WARD, DEVASAMUNDRA VILLAGE, TQ: KAMPLI, DIST: BALLARI-583129. …RESPONDENTS (BY SRI JAIRAM SIDDI, HCGP FOR R1; R2-NOTICE SERVED) THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. (483 OF BNSS), SEEKING TO ALLOW THIS PETITION AND ENLARGE THE PETITIONER ON BAIL IN SPL.C.NO.887/2024 (CRIME NO.81/2024 OF KAMPLI POLICE STATION) NOW ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-I, BALLARI FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376 (2) (n) OF IPC 1860 AND UDNER SECTIONs 6 AND 8 OF POCSO ACT 2012. MANJANNA E Digitally signed by MANJANNA E Date: 2025.02.01 16:03:19 +0530 - 2 - NC: 2025:KHC-D:1933 CRL.P No. 103503 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.81/2024 by Kampli Police Station for offence punishable under Section 376 (2) (n) of Indian Penal Code, 1860 (‘IPC’ for short) and under Section 6 and 8 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ for short) by accused (petitioner). 2. Sri J. Basavaraj, learned counsel for petitioner submitted case of prosecution was that a complaint was filed by victim on 10.07.2024 stating that she was residing along with her mother and brothers at her house in Ward no.4, Waddar colony, Devasamudra village of Kampli taluk. Her father had died 12 years earlier. That she was acquainted with Mallikarjun (petitioner), who was residing close by. In 2019, when she in PUC-I, petitioner told her that he would marry her and sought intimate relationship. As she liked him, she agreed. And on - 3 - NC: 2025:KHC-D:1933 CRL.P No. 103503 of 2024 10.08.2019, when petitioner asked her to come to his house as he would be alone. As even her mother had gone for work, she went there around midnight and they had sexual intercourse. Thereafter, she returned home. Later on they had sexual intercourse repeatedly, at either of their houses whenever they were alone. When she became pregnant while she was in PUC- II, he got her a tablet, which caused abortion. 3. And since three years, she was residing with her mother and brothers at Kamalapura. Last time she had sexual intercourse with petitioner was on the night of 22.09.2022 at her house. Even thereafter they were speaking to each other over phone and since one year, she had been asking him to marry her, but petitioner had refused. As petitioner had sexual intercourse with victim on promise of marriage, but refused marriage later, she sought for taking action against him. Based on complaint, Crime no.81/2024 (supra) was registered. 4. Learned counsel submitted, even as per complainant, date of incident was from 10.08.2019 till 22.09.2022, whereas complaint was filed on 10.07.2024 which was filed after enormous delay. Secondly, victim had clearly - 4 - NC: 2025:KHC-D:1933 CRL.P No. 103503 of 2024 admitted about being in love with petitioner, both in complaint as well as her statement recorded under Section 164 of Cr.PC. It was further submitted medical examination report of victim did not note any injuries, which would reinforce petitioner’s contention that sexual intercourse if any was with her consent. It was further submitted, there was some contradiction insofar as date of birth of victim, which should have a bearing on tenability of offences alleged against petitioner. It was submitted petitioner was arrested on 12.07.2024 and in meanwhile charge sheet was filed on 21.08.2024. Therefore presence of accused for custodial interrogation would not be necessary. Moreover, as prosecution was relying on 25 witnesses, conclusion of trial was likely to be delayed. 5. It was lastly contended, whether having sexual intercourse on false promise of marriage would attract Section 376 of IPC would itself be a question to be determined, in view of decision of Hon’ble Supreme Court of India in case of Mahesh Damu Khare v. State of Maharashtra and another reported on 2024 SCC OnLine SC 3471. On above grounds sought for allowing of petition. - 5 - NC: 2025:KHC-D:1933 CRL.P No. 103503 of 2024 6. Sri Jairam Siddi, learned HCGP for respondent – State opposed petition. At outset it was submitted, as per school record of victim her date of birth was 29.03.2002. Both in her complaint as well as statement recorded under Section 164 of Cr.PC, she had stated that petitioner had sexual intercourse with her on 10.08.2019, when she would have been about 17 years, 4 months and 12 days old and which was repeated thereafter, thereby attracting provisions of POCSO as well as Section 376 (2) (n) of IPC. It was submitted said offences were punishment of imprisonment of not less than 10 years extending upto 20 years and therefore heinous. . It was submitted, as per decision of Hon’ble Supreme Court in case of Independent Thought Vs. Union of India and another reported in (2017) 10 SCC 800, ground of consent would not be available in case of offences under POCSO. Therefore prayed for rejection of petition. 7. Heard learned counsel. 8. From above, point that arises for consideration is: “Whether petitioner is entitled for regular bail on conditions?” - 6 - NC: 2025:KHC-D:1933 CRL.P No. 103503 of 2024 9. This petition for regular bail is by sole accused for offences under Section 376 (2) (n) of IPC and Section 6 and 8 of POCSO, which carry punishment of not less than 10 years extending upto 20 years and as such grave and serious. 10. As per complaint averments, petitioner is alleged to have had repeated sexual intercourse with victim during her age of minority on promise of marriage, leading to her pregnancy and abortion, and later refusing to marry her. However, complaint was filed on 10.07.2024 in respect of an incident that began from 10.08.2019. Even last incident date of sexual intercourse about 2 years earlier. Prima facie complaint is filed only after refusal to marry her giving an indication about tacit approval even if not consent for sexual intercourse. Further both in complaint as well as statement recorded under Section 164 of Cr.PC, victim admitted that she was in love with petitioner. 11. About factors to be considered while considering application for bail in cases involving offences under POCSO, Hon’ble High Court of Delhi in case of Dharmendra Singh v. - 7 - NC: 2025:KHC-D:1933 CRL.P No. 103503 of 2024 The State (Govt. of NCT Delhi) reported in 2020 SCC Online Delhi 1267, held 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 - 8 - NC: 2025:KHC-D:1933 CRL.P No. 103503 of 2024 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.” 12. It is seen that above decision is rendered by taking note of ratio in Independent Thought’s case (supra). 13. Applying same to instant case, as per date of birth records of petitioner and victim, petitioner would be 20 years, 2 months and 9 days, while victim would be 17 years, 4 months and 12 days old, which would not indicate case of grave perversion. Though, as a neighbour, petitioner would have easy access to victim, complaint averments would indicate that she went to his house when he called, which would indicate that - 9 - NC: 2025:KHC-D:1933 CRL.P No. 103503 of 2024 there was no misuse of position of trust and perversion. Statement of victim as well as medical examination report do not indicate any use of physical force, violence or threat. Indeed allegation is of having sexual intercourse repeatedly, but prosecution has not denied petitioner’s assertion about no criminal antecedents. And this is not a case of group offence. Victim has also stated that since three years she was residing at Kamalapura with her mother and brothers whereas petitioner was residing at Devasamudra village. Besides, prosecution has not made out a case of petitioner being able to dominate or intimidate victim and prosecution witnesses. 14. Under above circumstances, as concerns of prosecution about possibility of petitioners influencing prosecution witnesses or fleeing justice could be addressed by imposing stringent conditions, point for consideration is accordingly answered in affirmative. Hence, following: ORDER Petition is allowed. Petitioner - accused is ordered to be enlarged on bail in Spl.C.No.887/2024 pending on file of Additional District and Sessions Judge, FTSC-I, Ballari (Crime - 10 - NC: 2025:KHC-D:1933 CRL.P No. 103503 of 2024 no.81/2024 by Kampli Police Station) for offence punishable under Section 376 (2) (n) IPC and under Sections 6 and 8 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 Court. b) He shall not attempt or contact, threaten or tamper with victim or any prosecution witness either directly or indirectly. c) He shall not indulge in any criminal activities. d) He shall be regular in attending Court proceedings. e) It is clarified that views expressed are prima facie consideration of this order and shall not influence final outcome after trial. SD/- (RAVI V.HOSMANI) JUDGE EM CT:PA LIST NO.: 1 SL NO.: 7