- 1 - NC: 2025:KHC-D:2314 CRL.P No. 103725 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.103725 OF 2024 [439(CR.PC)/483(BNSS)] BETWEEN: NAGARAJA S/O. SANNA HALAKUNDI, AGE: 22 YEARS, OCC. DRIVER, R/O. S.C. COLONY, TEGGINABUDIHAL VILLAGE, DIST. BALLARI-583102. … PETITIONER (BY SRI RAJA RAGHAVENDRA V.NAIK, ADVOCATE) AND: 1. THROUGH P.D.HALLI POLICE STATION REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, AT DHARWAD-580001. 2. RAVI S/O. WATTERI MAREPPA, AGE: 43 YEARS, OCC. LABOURER, S.C. COLONY, NEAR MAREMMA TEMPLE, TEGGINABUDIHAL VILLAGE, DIST. BALLARI-583102. … RESPONDENTS (BY SMT. GIRIJA S.HIREMATH, HCGP FOR R1; R2-NOTICE SERVED) THIS CRIMINAL PETITION IS FILED U/S. 483 OF BNSS, PRAYING TO GRANT BAIL TO THE PETITIONER/ACCUSED NO.1 IN SPL.S.C. NO.977/2024 PENDING BEFORE THE ADDITIONAL DISTRICT AND SESSION JUDGE FTSC-I, BALLARI REGISTERED FOR THE OFFENCES PUNISHABLE U/S. 137(2), 87 AND 64 OF BNS, 2023 AND SECTION 87, 64 OF BNS 2023, SECTION 4 AND 6 OF POCSO ACT, 2012 BEFORE P.D. HALLI POLICE STATION IN CRIME NO.85/2024. MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.02.07 14:21:30 +0530 - 2 - NC: 2025:KHC-D:2314 CRL.P No. 103725 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.85/2024 by P.D. Halli Police Station for offences punishable under Sections 137 (2), 87 and 64 of Bharatiya Nyaya Sanhita, 2023 (‘BNS’ for short) and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ for short) by sole accused (petitioner). 2. Sri Raja Raghavendra V. Naik, learned counsel for petitioner submitted case of prosecution was that on 19.08.2024 at 8:30 p.m., Ravi s/o Watteri Mareppa (informant) had approached P.D. Halli Police Station to inform that his minor daughter (victim) studying in 10th standard and who had gone to shop at 10:00 a.m., had not returned home even by 12:00 p.m. While they were searching petitioner, a driver by profession had called Manju son of informant stating that he had taken victim along with him to Ballari and asked him to come to Ballari and he would bring her. But failed to bring her. But failed to bring her. - 3 - NC: 2025:KHC-D:2314 CRL.P No. 103725 of 2024 Informant further stated that on earlier occasion when there was issue about petitioner and victim being in love with each other, same was sorted out by elders, as victim was still a minor. Therefore Petitioner was asked to restore custody of minor victim to her parents on assurance that no complaint would be filed. Even then he had failed. Hence he had approached police. But as informant was unwilling to lodge complaint, a suo-motu complaint in Crime no.85/2024 was registered under Section 137 (2) of BNS. 3. It was submitted, victim was found at petitioner’s elder uncle’s house at Obalapura on 20.08.2024. Her statement under Section 180 of BNSS was recorded on 21.08.2024, wherein she stated that she was in love with petitioner, but her parents were forcing her to stop same. Therefore, she and petitioner had decided to get married and left village on 19.08.2024 at 12:00 p.m. Petitioner took her to his younger uncle’s house in Ballari. And there petitioner slept with her once and touched her private part. 4. It was submitted, victim had not specifically stated about petitioner having sexual intercourse with her. But, in her statement recorded under Section 183 of BNSS, she had stated - 4 - NC: 2025:KHC-D:2314 CRL.P No. 103725 of 2024 that petitioner had sexual intercourse with her even after she refused her consent. Thereafter they went to his elder uncle’s house at Obalapura. It was submitted, Medical Examination Report of victim would show an ‘old’ tear of hymen. Though seminal discharge was stated, none of victim’s clothes were found stained with semen as per FSL report. It was therefore submitted, victim’s statement about going along with petitioner voluntarily to his younger uncle’s house at Ballari, and thereafter stating to have accompanied him without any allegation of threat or force, to his elder uncle’s house at Obalapura would indicate that offences alleged were result of afterthought. 5. It was submitted, petitioner was law abiding citizen and permanent resident of Tegginabudihal village, Ballari and was falsely implicated. It was submitted, investigation was completed and charge sheet filed on 24.09.2024. Petitioner was arrested on 21.08.2024 and conclusion of trial was likely to be delayed. Therefore, petitioner was entitled for bail. On above grounds sought for allowing petition. 6. On other hand, Smt.Girija S. Hiremath, learned HCGP for respondent no.1 – State opposed petition. It was - 5 - NC: 2025:KHC-D:2314 CRL.P No. 103725 of 2024 submitted, offences alleged against petitioner were under Sections 4 and 6 of POCSO apart from Sections 137 (2), 87 and 64 of BNS which were heinous and punishable with imprisonment of upto 20 years. It was submitted, Medical Examination Report indicated breach of hymen of victim. Her school admission register showed date of birth as 25.12.2009. Consequently, as on date of incident i.e. 19.08.2024, age of victim would be 14 years, 7 months and 25 days. It was submitted, as per decision of Hon’ble Supreme Court in case of Independent Thought v. Union of India reported in (2017) 10 SCC 800, ground of consent would not be available in case of offences alleged under POCSO. Further, she had supported prosecution case in her statement recorded under Section 183 of BNSS. Therefore, sought for rejection of bail petition. 7. Heard learned counsel. 8. From above, point that arises for consideration is: “Whether petitioner is entitled for regular bail with conditions?” 9. This petition is for regular bail by sole accused, in Crime no.85/2024 for offences under Sections 137 (2), 87 and 64 of BNS and Sections 4 and 6 of POCSO. Though perusal of - 6 - NC: 2025:KHC-D:2314 CRL.P No. 103725 of 2024 complaint and column 17 of charge sheet would indicate charges alleged were heinous and serious, committed against a minor just a little over 14 and half years of age, prima facie examination of her statements indicate variation. Medical Examination Report would disclose one episode of sexual intercourse about 1 to 7 days prior to date of examination conducted on 21.08.2024. 10. Though victim stated about penetrative sexual intercourse with seminal ejection, FSL report does not appear to support same. No seminal stains were found on her clothes. In Medical Examination Report, there is no medical opinion about recent sexual activity. 11. Indeed, no conclusion can be given on material at this stage and prosecution be provided opportunity to establish commission of offences by petitioner during trial. Further, though charge sheet is filed, commencement/conclusion of trial is likely to be delayed due to number of witnesses to be examined. Even applying factors as in Dharmander Singh v. State (Government of NCT of Delhi), reported in 2020 SCC OnLine Del 1267, material at this stage appears to indicate tacit approval in fact, though not in law as held in - 7 - NC: 2025:KHC-D:2314 CRL.P No. 103725 of 2024 Independent Thought (supra). In view of above, point for consideration is answered in affirmative. Consequently following: ORDER Petition is allowed. Petitioner/accused is released on bail in Crime no.85/2024 of H.D. Halli Police Station for offences punishable under Sections 137 (2), 87 and 64 of BNS and Sections 4 and 6 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 Addl. District and Sessions Judge-FTSC-1 at Ballari. b) He shall not contact victim either directly or indirectly either through any device or in- person. c) He shall not threaten or tamper with any prosecution witnesses either directly or indirectly. d) He shall not indulge in any criminal activities. e) He shall be regular in attending Court proceedings. 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 CLK_CT:PA LIST NO.: 1 SL NO.: 5