This petition is filed by the petitioner - accused No.1

under Section 439 of Cr.P.C. for grant of bail in Crime

No.190/2023 registered by the Shahapur Police Station,

for the offences punishable under Sections 323, 376 (3)

and 114 read with Section 149 of IPC and under Sections

4 of the POCSO Act and under Sections 9, 10 and 11 of

the Prevention of Child Marriage Act, 2006.

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02. Heard the learned counsel for the petitioner,

the learned High Court Government Pleader for the

respondent No.1 - State and the learned counsel for the

respondent No.2 - complainant.

03. The case of the prosecution is that on the

complaint of respondent No.2, the police have registered

the FIR against the petitioner and others who are the

parents of the petitioner and said to be performed a

marriage of a victim girl who is aged about 16 years and

minor. Subsequently, the petitioner has sexually assaulted

on her. After registering the FIR, the police have arrested

this petitioner on 25.08.2023, he was remanded to the

judicial custody. His bail petition came to be rejected.

Hence, the petitioner is before this Court.

04. The

learned

counsel

for

the

petitioner

contended that the petitioner is said to be a mohammaden

and the victim also mohammaden community. Under the

personal law of the mohammaden the girl who is aged

about 16 years the marriage is permissible. After the

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marriage, the petitioner being the husband said to be

committed sexual assault on her. Therefore, it cannot be

considered as an offence under the IPC or the POCSO Act.

The petitioner is in judicial custody for more than 05

months. The investigation is completed and the charge

sheet has been filed. Hence, prayed for granting the bail.

05. Per contra, the learned High Court Government

Pleader for the respondent No.1 - State and the learned

counsel for the respondent No.2 – complainant objected

the petition contending that the personal law cannot be

over-read the special act i.e., the POCSO Act and the IPC.

The age of the victim is below 16 years and her consent

and willingness is immaterial.

06. Having heard the arguments and on perusal of

the records, it reveals that the petitioner has already

married the victim. Thereafter, the marital ceremonies

have been arranged by the parents of the petitioner,

accordingly, he has sexually assaulted. Of course in the

statement under Section 164 of Cr.P.C. of the victim,

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wherein she has not stated anything about the sexual

assault made by this petitioner. The medical report also

reveals that there is no recent sexual intercourse with the

victim except the hymen was ruptured. The petitioner is in

judicial

custody

for

more

than

05

months.

The

investigation is completed long back and the charge sheet

has been filed. It is well settled that the personal law

cannot over-read the special Act which is POCSO Act and

the IPC. Of course the Hon’ble Supreme Court has

recommended that there is union for making necessary

amendment. However, this Court has already in a similar

case rejected the bail petition in Mr. Pasha @ Nayaz

Pasha s/o Chotu Sab vs. the State of Karnataka and

another Crl.P.No.1173/201 dated 16.06.2021.

07. Considering the facts and circumstances of the

case, it reveals that the victim has not stated about sexual

assault in the statement under Section 164 of Cr.P.C. and

medical report also not reveals any recent sexual

intercourse on the victim. The investigation is completed

long back and the charge sheet has been already filed.

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08. Considering the facts and circumstances of the

case, I am of the view that, by imposing certain stringent

conditions, if bail is granted to the petitioner, no prejudice

will be caused to the prosecution. Accordingly, I proceed

to pass the following;

O R D E R

The petition is allowed.

The Trial Court is directed to release the petitioner -

accused No.1 on bail, in Crime No.190/2023, registered by

Shahapur Police Station, for the offences punishable under

Sections 323, 376 (3)