- 1 - NC: 2025:KHC-D:1559 CRL.P No. 103580 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.103580 OF 2024 [439(CR.PC)/483(BNSS)] BETWEEN: HAJARATSAB S/O. ISMAILSAB KOTI, AGED ABOUT 25 YEARS, OCC. COOLIE, RESIDENT OF BELAGALPETE, KANCHI NEGALUR, HANGAL TALUK, DIST. HAVERI-581104. … PETITIONER (BY SMT. SARVAMANGALA B.C., ADVOCATE FOR SRI M. R. HIREMATHAD, ADVOCATE) AND: 1. STATE OF KARNATAKA BY PSI HANGAL POLICE STATION, HANGAL TALUK, DIST. HAVERI-581104. Represented BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, DHARWAD-580011. 2. MAOULALI MAHARAJAPETI AGE: 52 YEARS, OCC. PRIVATE WORK, R/O. YALAVATTI VILLAGE, HANGAL TALUK, DIST. HAVERI-581104. … RESPONDENTS (BY SMT.GIRIJA S.HIREMATH, HCGP FOR RESPONDENTS) THIS CRIMINAL PETITION IS FILED UNDER SECTION 483 OF BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 (UNDER SECTION 439 OF CR.P.C.), SEEKING TO ALLOW THE PETITION AND GRANT THE REGULAR BAIL TO THE PETITIONER/ACCUSED IN SPL.SC.NO.87/2024 PENDING ON THE FILE OF ADDL.DISTRICT AND SESSIONS JUDGE FTSC-I, HAVERI (HANGAL P.S. FIR CRIME NO.0185/2024), FOR THE OFFENCES PUNISHABLE U/S. 376(2)(N), 376(F) AND 506 OF IPC AND SECTION 4, 6, 8, 12 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT 2012. MANJANNA E Digitally signed by MANJANNA E Date: 2025.01.29 14:35:29 +0530 - 2 - NC: 2025:KHC-D:1559 CRL.P No. 103580 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.185/2024 by Hangal Police Station for offences punishable under Sections 376 (2) (n), 376 (f) and 506 of Indian Penal Code (‘IPC’ for short) and Sections 4, 6, 8 and 12 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ for short) by accused. 2. Smt.Sarvamangala B.C. learned counsel for petitioner submitted, as per prosecution case, complaint was filed by victim stating that her brother married Sajidanur in year 2022, petitioner was Sajidanur’s brother and since two years, they were in love with each other, speaking over phone daily and also going together to parks etc. without anyone’s knowledge. About one and half years earlier, petitioner had taken her behind bench in park on outskirts of Hangal and inspite of opposition stating that she was minor, petitioner had sexual intercourse with her on promise of marriage. He also - 3 - NC: 2025:KHC-D:1559 CRL.P No. 103580 of 2024 had sexual intercourse with her about three months earlier at Gotagodi park and repeated same 4 to 5 times and 2 to 3 times at her house. 3. When she got engaged to Mallikrehan Naaranpur and family members intended to perform their marriage in November, 2024, petitioner called her and forced her to disclose their relationship to her fiancé and insist on marrying petitioner, otherwise, he would send her photographs to everyone and spoil her reputation. Under such threat, she sent their photos to Jamaat of Belagalpet, which led to cancellation of her engagement. Thereafter when she asked him to marry her, he turn down by stating, if he married her, his family reputation would suffer and switched off his mobile. Based on said complaint, Hangal Police registered Crime no.185/2024 (supra). 4. It was submitted, even as per complaint, victim had stated about being in love with petitioner. It was submitted complaint was filed alleging occurrence of incident repeatedly since one and half years earlier. Non-filing of complaint immediately would indicate tacit approval of victim. It was submitted complaint was filed only after alleged refusal by - 4 - NC: 2025:KHC-D:1559 CRL.P No. 103580 of 2024 petitioner to marry her. It was submitted, as per Birth Certificate, victim would be 19 years, 2 months and 27 days old as on date of complaint i.e. 08.07.2024. Hence, allegation of incident about 1 ½ years earlier was with intention to implicate petitioner for offences under POCSO. It was further submitted, medical examination reports did not reveal any other injuries indicative of violence or perversion and merely stated about rupture of her hymen. It was submitted, reading of entire complaint victim would indicate voluntary involvement of victim especially as they were romantically associated. 5. It was submitted, in similar circumstances indicative of sexual intercourse with consent, this Court had granted bail and sought to rely on decisions of this Court in case of Ganesha v. State of Karnataka and another. (Crl.P.no.7332/2023 disposed of on 09.11.2023) and Mr.Ranganatha v. State of Karnataka (Crl.P.no.8559/20244 disposed of on 22.10.2024). 6. It was further submitted, petitioner was law abiding citizen, working as coolie having age old parents and he is only bread earner of his family. Further as petitioner was resident of Belagalpete, while victim was resident of Yelavatti village, there - 5 - NC: 2025:KHC-D:1559 CRL.P No. 103580 of 2024 was no possibility of petitioner tampering with or influencing prosecution witnesses/material. On above grounds, prayed to allow petition on any conditions. 7. On other hand, Smt.Girija S. Hiremath, learned HCGP opposed petition on behalf of both respondents. It was submitted offences alleged against petitioner namely Sections 376 (2) (n) (f) and 506 of IPC and Sections 4, 6, 8 and 12 of POCSO were grave and heinous in nature, with highest among them punishable with imprisonment of not less than 10 years and upto imprisonment to life etc. It was also submitted, petitioner had indulged in physical relationship on promise of marriage which was also a serious offence similar punishment as Section 376 (2) (n) of IPC. 8. Admittedly, petitioner was brother of victim’s sister- in-law i.e. within relation and could not claim not to have known about her age of minority. It was submitted, even if victim had attained age of majority on date of complaint, incidents narrated by her had occurred during her age of minority. Especially when victim had stated that petitioner had indulged in sexual intercourse repeatedly while she was minor. Further she had implicated petitioner not only in her complaint - 6 - NC: 2025:KHC-D:1559 CRL.P No. 103580 of 2024 but also in her statement recorded under Section 183 of BNSS. And as per decision of Hon'ble Supreme Court in Independent Thought v. Union of India reported in 2017 (10) SCC 800, ground of consent would not be available in case offences alleged were under POCSO and said ratio would override decisions relied on. On said ground sought rejection of petition. 9. Heard learned counsel. 10. Hence, only point that would arise for consideration is: “Whether petitioner is entitled for regular bail on conditions?” 11. This petition for regular bail is by sole accused in Crime no.185/2024 by Hangal Police Station registered for offences punishable under Sections 376 (2) (n) and (f) and 506 of IPC and Sections 4, 6, 8 and 12 of POCSO. 12. Offences under both sub clauses are Sub-Section (2) of Section 376 of IPC punishable with imprisonment for not less than 10 years and which may be extended to imprisonment for life. And in case of offences under POCSO, punishment ranged from not less than 3 years with maximum - 7 - NC: 2025:KHC-D:1559 CRL.P No. 103580 of 2024 of imprisonment for life, indicating petitioner was involved in severe and heinous offences. 13. Prima facie as per complaint petitioner had repeated sexual intercourse with victim during age of her minority on promise of marriage even after her refusal. He is also alleged to have forced her to send their photographs to her fiancé when she was engaged to marry another, and refusing to marry her after said engagement broke. 14. But in her medical examination report, complaint as well as her statement recorded under Section 164 of Cr.PC, she had admitted that petitioner and victim were in love with each other. And her age (referring to birth certificate) as on date of complaint was 19 years 2 months 27 days. Victim had alleged that first incident of sexual intercourse was 1 ½ years earlier. Though same would place said incident during her age of minority, fact that she had not mentioned exact date of occurrence would require consideration. Same would also reveal filing of complaint would be 1 ½ years after first incident without victim either disclosing about it to anyone or complaining to anyone. Further, as stated complaint is filed - 8 - NC: 2025:KHC-D:1559 CRL.P No. 103580 of 2024 after refusal to marry victim. Above facts hint at tacit approval in fact. 15. High Court of Delhi in Dharmander Singh Vs. State (Government of NCT of Delhi) reported in 2020 SCC OnLine Del 1267, identified several factors to be taken into account while considering application for bail in case of offences alleged under POCSO. Age of petitioner being 24 years and that of victim about 17 ½ years with reference to first incident would not indicate any abnormal difference suggestive of perversion. Though petitioner and victim are related, there is no apparent perversion in same. They are also residents of two different villages and there is nothing suggestive of petitioner being in dominating position. And there is no apparent involvement of anyone other than petitioner. 16. Further, even fact that charge sheet is filed and conclusion of trial was likely to be delayed, taking note of fact that Hon'ble Supreme Court had granted bail to accused awaiting trial in Deshraj @ Musa vs. State of Rajasthan reported in 2024 SCC OnLine SC 2709, petitioner could be granted bail by imposing stringent conditions. Hence, point for - 9 - NC: 2025:KHC-D:1559 CRL.P No. 103580 of 2024 consideration is answered in affirmative. Consequently following: ORDER Petition is allowed. Petitioner/accused is released on bail in Spl.SC.no.87/2024 before Addl. District and Sessions Judge- FTSC-1 at Haveri (in Crime no.185/2024 of Hangal Police Station) for offences punishable under Sections 376 (2) (n), (f) and 506 of IPC and Sections 4, 6, 8 and 12 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 said Court. b) He shall not contact victim or any other prosecution witnesses either directly or indirectly either through any device or in- person. c) He shall be regular in attending Court proceedings. d) He shall not leave jurisdiction of said Court without prior permission. e) He shall not indulge in any criminal activities. - 10 - NC: 2025:KHC-D:1559 CRL.P No. 103580 of 2024 f) It is clarified that views expressed are prima facie for purposes of this order and shall not influence final outcome after trial. SD/- (RAVI V.HOSMANI) JUDGE GRD/EM CT:PA LIST NO.: 1 SL NO.: 13