Heard Sri. Giri Kumar S.V., learned counsel for the

petitioner and Sri. S.Vishwamurthy, learned HCGP for the

respondent-State and perused the records.

2.

Present petition is filed under Section 438 of Cr.P.C.

with the following prayer:

<Wherefore, the petitioner most humbly

prays that this Hon9ble Court may be pleased

to grant anticipatory bail and direct the

respondent No.1-police to enlarge him on bail,

in the event of his arrest in Cr.No.43/2021

registered by respondent No.1-police station

and registered as Spl. Case No.115/2021

against

the

Petitioner

for

the

offences

registered under Sections 366, 376(2)(n),

354(D), 363 read with Section 34 of IPC and

Sections 6 and 12 of POCSO Act and Section 9

of Prohibition of Child Marriage Act, in the

interest of justice and equity=.

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3.

The brief facts of the case are as under:

The complaint came to be filed by Smt. Lakhmi wife of

Venkateshachari contending that her daughter aged about 15

years 5 months has been eloped by the accused herein on

24.02.2021 and on 03.03.2021 at about 6.00 am, he married

her and had sexual intercourse with her. The victim girl has

been traced by the police and she was produced before the

Jurisdictional Magistrate. Her statement was recorded by the

Jurisdictional Magistrate under Section 164 of Cr.P.C. While

making statement before the Jurisdictional Magistrate, the

victim girl has narrated that, she had a love affair with the

accused and her parents were looking for a separate alliance

to her. In order to marry the accused, she went with the

accused from hind side of the door and eloped her on the

scooter and thereafter, he took her to Channarayapattana

and kept her in a room and married her and thereafter, they

had physical relationship on every day. She has stated that

she become one and half month pregnant. Based on the

same, the police filed charge sheet against the accused for

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the offences punishable under Sections 366, 376(2)(n),

354(D), 363 read with Section 34 of IPC and Sections 6 and

12 of POCSO Act and Section 9 of Prohibition of Child

Marriage Act.

4.

The request made by the petitioner seeking grant of

anticipatory bail is turned down by the learned District Judge

in C.Mis.No.1051/2021 by order dated 25.10.2021. Though

FIR dated 28.02.2021 is filed, till today, the petitioner is not

available to the investigation agency. Thereafter, the

petitioner is before this Court seeking grant of anticipatory

bail.

5.

Learned

counsel

for

the

petitioner

vehemently

contended that in view of the love affair that the victim girl

and the petitioner had, which turned down into a marriage in

a Ganapathi temple on 03.03.2021 and thereafter, they lived

like husband and wife and therefore, no offences as alleged

by the prosecution has taken place in the case on hand. He

also pointed out that it is the voluntary act of the victim girl

who have physical relationship with the petitioner and

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therefore, there is no material on record which would indicate

that the petitioner had forcible sexual intercourse with the

petitioner and thus, sought for grant of anticipatory bail.

6.

Per contra, learned HCGP opposes the bail petition on

the ground that the theory of consent argued by the learned

counsel for the petitioner cannot be countenanced in law. In

the case on hand inasmuch as the victim girl is aged about

15½ years and her consent cannot be treated as a consent in

the eye of law.

He also pointed out that from the date of

petition, the petitioner is absconding and absconding charge

sheet came to be filed against the petitioner and therefore,

the petitioner cannot be treated as a law abiding citizen and

sought for dismissal of the claim petition.

7.

This Court perused the material on record in the light

of the rival contentions of the parties.

8.

Admittedly, the victim girl is aged about 15½ years as

per the complaint averments. Statement made before the

Jurisdictional Magistrate under section 164 Cr.P.C., by the

victim girl reveals that because of the