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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
V SRISHANANDA, J.
Sr Bujji A K A Babu G, S/o Gangadharappa – Appellant
Versus
The State Of Karnataka – Respondent
Criminal Petition No. 12080 of 2022
Decided on : 14-03-2023
Indian Penal Code, 1860 - Section 363, 363, 372(2) (n), 375, 344 - Protection of Children from Sexual Offences Act, 2012 - Sections 4 and 6 - Prohibition of Child Marriage Act, 2006 - Section 9 and 10 – Criminal Procedure Code, 1973 - Section 164, 439 - Kidnapped - Forcible sexual intercourse - Grant of bail - Victim girl had been to church and at that juncture, petitioner kidnapped her – Courts across Country have often either enlarged an accused on bail owing to accused contracting marriage with rape victim or cases where FIR has been quashed on account of subsequent marriage - Para 39.
Finding of the Court: There is an allegation that there was a love affair, such cases must stand on a different footing - However, even in such cases, having regard to age prescribed to call a person as a child under 18 years, love affair may be permissible, but not definitely physical relationship having regard to object of act - Otherwise, very object of enactment would render useless and registering a case and investigation and trial would all become empty formality - Hon’ble Apex Court in sensitive matters, Trial Court and sometimes High Court is often required to deal with plea of settlement/compromise; especially in matter involving sexual assault offences/where that accused is ready to marry the victim and therefore, the accused be granted bail or the complaint be quashed - Court is of the considered opinion that the argument put forward on behalf of the petitioner that the petitioner if enlarged on bail, would make sincere efforts to marry the victim girl cannot be countenanced in law.
Result: Ordered accordingly.
ORDER :
1. Heard Sri. Tigadi Veeranna Gadigeppa, learned counsel appearing for the petitioner and learned High Court Government Pleader for the respondent-State.
2. Respondent No.2, who is the complainant, though served with the notice of the petition, remained absent before this Court.
3. Brief facts of the case are as under: A complaint came to be lodged by the second respondent with Bagepalli Police, Chikkaballapura District which was registered in Crime No.179/2022 on 27.04.2022, initially for the offence punishable under Section 363 of Indian Penal Code (for short ‘IPC’).
4. Gist of the complaint averments reveal that the complainant belongs to Schedule Caste community and was the resident of 13th ward in Bagepalli Town along with her family members. She has a daughter (victim girl) aged 16 years. On 02.04.2022, the victim girl had been to church and at that juncture, the petitioner kidnapped her. Despite best efforts, the victim girl was not traced and therefore, the complainant approached the jurisdictional police with a missing complaint.
5. Police registered a case as aforesaid and investigated the matter. During the course of investigation, the investigating Agency was successful in tracing the victim girl and the accused/petitioner. After recording the statement of the victim girl, charge sheet came to be filed against the petitioner for the offences punishable under Sections 4 and 6 of POCSO Act and also under the provisions of Section 9 and 10 of the Prohibition of Child Marriage Act, 2006. Apart from the offence under Sections 363, 372(2) (n) and Section 344 of IPC.
6. Gist of the charge sheet material would go to show that the accused/petitioner cajoled the victim girl and took her with him on 14.02.2022 in the guise of valentine’s Day. Thereafter, near the entrance of Nandi Hills, the petitioner took her into a lonely place and had forcible sexual intercourse with the victim girl. Again on 02.04.2022 he took the victim girl to one of his relative’s house representing the victim girl as a major and obtained premises on rent and started residing there. On 03.04.2022 at about 9 a.m., the petitioner took the victim girl to Anjaneya Swamy Temple and married her. On 11.05.2022, the petitioner had sexual intercourse with the victim girl and the victim girl being aged 16 years. The Police filed charge sheet against the petitioner for the aforesaid offences.
7. During the course of investigation, the petitioner has been apprehended by the Police along his elder sister Sujata and her husband. Accused Nos.2 and 3 were successful in getting bail but insofar as the petitioner is concerned, the learned Special Judge, Chikkaballapura by order dated 24.11.2022 rejected the bail request in Criminal Misc. No.811/2022.
8. Thereafter, the petitioner is before this Court and sought for grant of bail on the following grounds:
• There are no reasonable grounds to believe that the Petitioner/Accused has committed the offences alleged against him.
• The offences alleged against the Petitioner/Accused are not exclusively punishable with death or imprisonment for life.
• The Petitioner/Accused is aged about 23 years old, earning lively hood by following avocation of bar bender and is the only earning members in his family consisting of his ailing old aged mother.
• The Petitioner/Accused is in custody from the date of his arrest on 25.07.2022.
• The Petitioner/Accused is in Judicial Custody; hence the detention of Petitioner/Accused is not necessary for the purpose of Investigation.
• The Petitioner is the only earning member in his family. His mother require immediate medical treatment. If the Petitioner is not granted Bail his mother may not be in position to take treatment.
• The Petitioner/Accused owns movable and immovable properties and has deep roots in the society; hence there is no apprehension of their abscondance.
• The Petitioner/Accused undertakes that he shall not absc
Sections 3 of Protection of Children from Sexual Offences Act, 2012 reads as penetrative sexual assault.
(1) A child cannot be a consenting party.(2) Heinous offences like suicide, murder and rape etc., can neither be quashed nor compounded.
Consent immaterial for penetrative sexual assault on minor under 18; conviction upheld on unrebutted presumptions, medical/forensic evidence despite romantic claim; distinguished from marriage/progen....
Kidnapping and rape of girl child – Children are deemed to be incapable of consent and consent is no defence to offences punishable under POCSO Act.
(1) Any act of sexual assault or sexual harassment to children should be viewed very seriously.(2) Child needs extra protection – No leniency can be shown to an accused who has committed offences und....
Sexual Autonomy encompasses both, right to engage in wanted sexual activity and right to be protected from unwanted sexual aggression – Only when both aspects of adolescent’s rights are recognized, h....
The consent of a minor for sexual intercourse is of no consequence under POCSO Act and IPC 375, and the absence of enticement or inducement is crucial in determining the offence of kidnapping under I....
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