Dismissed

Bashasab S/O Mabusab Mudagal v. the State of Karnataka

Karnataka HC20 Jul 2022CRL.P/101856/2022

Case brief

AI extract

What is this about?

In a bail petition under Section 439 Cr.P.C. involving offences under IPC and POCSO, the High Court dismissed the petition pending receipt of the FSL report, holding that the minor victim's consent is immaterial and granting bail posed a threat to witnesses.

What did the court decide?

The petition for regular bail was dismissed pending the receipt of the FSL report.

Bashasab S/O Mabusab Mudagal Vs the State of… — Child Sexual Offences (POCSO) | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^TH DAY OF JULY 2022

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL PETITION NO. 101856 OF 2022

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BETWEEN:

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BASHASAB, S/O. MABUSAB MUDAGAL, AGE: 20 YEARS, OCC: STUDENT, R/O. GUDADURUKAL VILLAGE, TQ: KUSHTAGI, DIST: KOPPAL – 584121.

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… PETITIONER

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(BY SHRI. VIDYASHANKAR G.DALWAI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, ITS P.S.I., HANUMASAGAR POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD – 011.

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SMT. SHARANAMMA, W/O. SHARANAPPA ADAVI, AGE: 50 YEARS, OCC. AGRICULTURE AND HOUSEHOLD WORK, R/O. GUDADURUKAL VILLAGE, TQ: KUSHTAGI, DIST: KOPPAL – 584121.

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... RESPONDENTS

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(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1;

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SHRI. GANAPATI M.BHAT, ADV. FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. SEEKING TO ALLOW THE PETITION FILED U/S 439 OF CR.P.C., AND ENLARGE THE PETITIONER ON REGULAR BAIL IN SPL.SC.POCSO NO.20/2022 (FIR IN CRIME NO.11/2022 OF HANUMASAGAR P.S.) FOR OFFENCES PUNISHABLE U/S 363, 343, 376, 376(2)(i) OF IPC AND SECTIONS 4 AND 6 OF POCSO ACT, 2012, WHICH IS PENDING ON THE FILE OF COURT OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-1, AT KOPPAL, WITH SUCH CONDITIONS WHICH THIS HON’BLE COURT DEEMS FIT TO BE IMPOSED IN THE CIRCUMSTANCES OF THE CASE.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This petition is filed by the petitioner/accused under Section 439 of Cr.P.C., seeking for grant of bail in Crime No.11/2022 of Hanumasagar Police Station for the offences punishable under Sections 363, 343, 376, 376(2)(i) of Indian Penal Code (for short ‘IPC’) and Sections 4 and 6 of Protection Of Children From Sexual Offences Act, 2012 (for short ‘POCSO’).

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Heard the arguments of learned counsel for the petitioner, learned High Court Government Pleader for the respondent No.1-State and learned counsel for respondent No.2.

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The case of the prosecution is that on the complaint of the mother of the victim-respondent No.2 herein filed the complaint before the Police on 07.02.2022, alleging that her daughter went to the land where her father was working on 02.07.2022 at about 10.30 a.m. to give lunch to her father. After returning to home the complainant asked about her daughter to her husband and he said that the victim told him that she is going to bank for drawing some money. After searching her everywhere, they lodged the missing complaint to the Police under Section 363 of IPC. Subsequently, during the investigation, the Police traced the victim when she near the Kushtagi bus stand. The Police arrested the petitioner on 08.03.2022 and subject to the medical examination and remanded him to judicial custody. The petitioner approached before the Sessions Judge for grant of bail, which came to be rejected. Hence, the petitioner is before this Court.

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The learned counsel for the petitioner contended that

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the petitioner is innocent of the alleged offences. The age of the victim is 17 years 07 months almost nearing 18 years. The victim herself went along with the petitioner to Bengaluru for one month and stayed along with him. After knowing the filing of missing complaint by victim’s parents, the petitioner himself brought her back and left in the village. The accused was neighbor, staying in the same village. The victim girl and petitioner both of them fell in love affairs. The investigation is completed and charge sheet has been filed. Hence, he prayed for grant of bail.

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Per contra, the learned High Court Government Pleader seriously objected the petition and contended that the victim is minor girl aged below 18 years. The consent of the victim is immaterial and the victim statement recorded under Section 164 of Cr.P.C. clearly reveals that the accused committed rape and sexual assault on her. If the accused is granted bail, he will threaten the prosecution witnesses and commit the similar offence which cannot be ruled out. Hence, she prayed for dismissing the petition.

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Learned counsel for respondent No.2 also objected the bail petition and contended that victim is below 18 years and the accused insisted her to marry him and commit sexual assault on her which attracts Sections 4 and 6 of POCSO Act and Section 376 of IPC. If the accused granted bail, there is every possibility of threatening the prosecution witnesses which cannot be ruled out. He further contended that the FSL report still not yet received. Hence, he prayed for dismissing the petition.

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Heaving heard the arguments and perused the records.

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Of course the age of the victim is 17 years 07 months on the date of incident and near to completion of 18 years and as per the statement of victim recorded under Section 164 of Cr.P.C. reveals that the accused forced her to live with him about two years back to the incident. Subsequently on 02.02.2022 the victim girl met the accused and the accused asked her to came to the bus stand that both of them went to Bengaluru and stayed there. The accused said to be committed forcibly sexual assault on her against her will and after knowing about the missing complaint filed by the parents of the victim he brought her back.

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Considering the statement of the victim which reveals

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that the accused sexually assaulted her against her will and consent. The will or consent of victim girl is immaterial who is below the age of 18 years under Section 376 of IPC. The medical examination report reveals that the accused committed sexual assault on her and there is no extra injuries found on the body of the victim. The FSL report not yet received. Though there is consent of the victim but she is minor. Hence the consent is immaterial under the law. Therefore, pending consideration of receipt of FSL report, the petitioner is not entitled for grant of bail and the petition is liable to be dismissed.

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10. Accordingly, the petition is hereby dismissed.

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Sd/JUDGE

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SMM

Bashasab S/O Mabusab Mudagal v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Bashasab S/O Mabusab Mudagal v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

Parties & counsel

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