1. Heard Sri Madhukeshwar Deshpande, learned counsel for the petitioner and learned High Court Government Pleader for the respondent - State. Perused the records.

2. The present petition is filed under S.439 of Cr.P.C. with the following prayer : -
"To enlarge the petitioner / accused no.1 on bail in Special Case No. 125/2022 before the Additional District and Sessions Judge - FTSC - 1 U.K. Karwar (Special Court for trial of cases filed under POSCO) Act registered for the offence punishable u / S.363, S.376 of IPC and S.3 and S.4 of POCSO Act 2012 and S.9 of the Prohibition of Child Marriage Act 2006, by the respondent Haliyal Police Station in Crime No.148/2022."

3. The brief facts of the case are as under : -
A complaint came to be lodged by father of the victim girl with Haliyal Police on 19.08.2022 which was registered in Crime No.148/2022 initially for the offence punishable U / S.363 IPC. Gist of the complaint averments reveal that the daughter of the complainant aged about 15 years 7 months and a student was found missing and despite best efforts she could not traced. After registering the case, police investigated the matter and traced the victim girl and also the accused. Based on the statement recorded by the Investigation Officer of the victim girl, accused was charge sheeted for the offences under the provisions of POCSO Act as well apart from 376 IPC. The petitioner was also charge sheeted for the offence U / S.9 of the Prohibition of Child Marriage Act. After the charge sheet, the matter is pending before the Special Court for trial. In the meantime, petitioner approached the District Court for grant of bail which was turned down by order dated 28.12.2022 in Special Case No.125/2022 by the learned Special Judge, Uttara Kannada. Thereafter petitioner is before this Court.

4. Reiterating the grounds urged in the petition, learned counsel for the petitioner vehemently contended that the petitioner and the victim girl had a love affair and in turn there was a physical relationship and the statement of the victim girl before the jurisdictional Magistrate when her statement was recorded U / S.164 Cr.P.C. clearly shows that there was a love affair and therefore, the alleged act is consensual in nature.

5. He also pointed out that the medical records do not make out a case of forcible sexual intercourse in the absence of any external injuries and the finding that there is no evidence to establish the recent sexual intercourse and sought for grant of bail.

6. Per contra, learned HCGP opposes the bail grounds by contending that admittedly the victim girl is a minor and material on record would go to show that petitioner had forcible sexual intercourse with the victim girl. She also pointed out that mere absence of any evidence of availability of spermatozoa etc., in the virginal swab of the victim girl would not ipso facto result in an inference that there was no physical relationship at all. More so, when the victim girl had taken bath soonafter the intercourse. Absence of hymen pre - supposes there was a sexual intercourse.

7. She also pointed out that having regard to the age of the victim girl, consent if any is immaterial and therefore petitioner has not made out any grounds for grant of bail and sought for rejection of bail.

8. In view of the rival contentions of the parties, this Court perused the material on record meticulously.

9. On such perusal, it is seen that the victim girl was found in the company of the petitioner and she has been rescued by the police based upon the missing complaint lodged by the father of the victim girl. The statement recorded by the police and also the statement of the victim girl before the Magistrate U / S.164 Cr.P.C. would prima facie attract the ingredients of the offences alleged against the accused.

10. This Court at this stage cannot hold a mini trial to find out the merits or demerits of the case as the same would prejudice the case of the parties during the trial one way or th