Point of law : Rape offence - Even if the minor girl gives 'no objection' to release the accused in an heinous crime like rape on a minor girl and granting bail to the accused is nothing but giving license to the offender to commit similar offences which would dilute the Special Act enacted by the Parliament for protecting the children from sexual offences and also deviating the provisions of Sections 9 and 10 of Child Marriage Restraint Act apart from the provisions of Section 375 of IPC and it will send a wrong message to the Society.

ORDER :

1. This petition is filed by the petitioner-accused No.1 under Section 439 of Cr.P.C., for granting regular bail in Crime No.126/2020 registered by Tiptur Town Police for the offences punishable under Sections 363, 342, 114, 506, 376 read with Section 34 of IPC, Sections 4, 6, 17, 18 of the Protection of Children from Sexual Offences Act and Sections 9 and 10 of the Child Marriage Restraint Act.

2. Heard learned counsel for the petitioner as well as the learned High Court Government Pleader for respondent No.1.

3. The case of the prosecution is that on the complaint of one Shahinabanu, the mother of the victim, filed a complaint to the Police on 05.10.2020 alleging that her daughter, the victim girl, aged about 15 years was abducted by petitioner-accused No.1. The petitioner being the neighbour used to speak with her daughter whenever she goes to her tailoring class. That on 27.09.2020 at about 11.00 p.m., her daughter was sitting by holding the mobile phone. Thereafter from 28.09.2020, she was missing from the house. Then she searched for her daughter, but could not find her anywhere. On 03.10.2020, at about 2.00 p.m., the victim girl came back by weeping. When she enquired her, the victim informed her mother that on 27.09.2020, when she was sitting with her mobile phone, the petitioner forcibly abducted her by gagging her with napkin and took her in his Goods Vehicle 407 to his relative’s house, kept her for three days and not allowed her to talk with anybody. He has also threatened her. Later, in the night hours, the petitioner took her to a lonely place and obtained her signature. Thereafter, on 01.10.2020, at about 12.00 p.m., the wife of the accused took the victim and left her in a house where the petitioner is said to have sexually assaulted her. On 03.10.2020, at about 5.00 p.m., the victim escaped from the custody of the petitioner. After registering the case, the Police arrested the petitioner and remanded him to judicial custody. Therefore, the petitioner approached the Sessions Judge for bail, which came to be rejected. Hence, the petitioner is before this Court.

4. Learned counsel for the petitioner contended that the petitioner and the victim fell in love with each other. Both of them eloped and married in the presence of Mutavali and the marriage is a registered marriage. A copy of the marriage certificate is also produced. Though the petitioner is a married man, accused No.2 is the wife of the petitioner and the victim is presently residing in the house of the petitioner-accused No.1. Learned counsel for the petitioner further submits that the medical records reveal that there is no sexual assault on the victim. She has given history to the doctor that she has not stated anything about the sexual assault. Therefore, he contended that the petitioner-accused No.1 is entitled for bail.

5. Learned High Court Government Pleader seriously objected the bail petition.

6. Notice was served to respondent No.2, the complainant. Respondent No.2 appeared through the advocate. He has filed the affidavit of the victim showing the age of the victim as 17 years and the victim has stated that she has married the accused on 01.10.2020 and her mother was not happy with the marriage and without her consent, she went along with the petitioner-accused. Therefore, she prayed for allowing the bail petition.

7. Upon hearing the arguments and perusal of the records reveal that admittedly the age of the victim is 15 years as on the date of the incident as her date of birth is 27.09.2005. It is also pertinent to note that accused No.2 is none other than the wife of the petitioner. She is also involved by abetting accused No.1 while committing the offence. The marriage certificate is said to be issued by some Mosque by its Secretary or Mutavali, wherein the signature of the victim was obtained and the marriage was performed showing the age of the victim as 19 years. By suppressing the fact that the victim is a minor girl, the petiti