High Court dismissed a bail petition filed under Section 439 Cr.P.C. by an accused facing charges of rape and kidnapping under IPC and POCSO Acts. The Court held the prosecutrix is a minor and vulnerable, denying bail to prevent tampering.
Petition filed u/s.439 Cr.P.C. is dismissed; accused not entitled for bail.
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NC: 2023:KHC-D:11252 CRL.P No. 101756 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL PETITION NO. 101756 OF 2023
BETWEEN:
SHRI. RAJU S/O HANAMANTH WADDAR, AGE: 24 YEARS, OCC: STUDENT, R/O. CHINCHEWADI VILLAGE, TQ: KHANAPUR, DIST: BELAGAVI.
…PETITIONER
(BY SRI. HANAMANT R. LATUR, ADVOCATE)
AND:
CHANDRASHEKAR LAXMAN KATTIMANI
Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Date: 2023.09.26 10:53:39 +0530
R/O. SHIVTHAN, TAL. KHANAPUR, DIST. BELAGAVI, 591302.
…RESPONDENTS
(BY SMT.GIRIJA S.HIREMATH, HCGP FOR R1; SRI. DAREPPA S. BILAGI AND SRI. SHEKHARAGOUDA M. NAGANURI, ADVS. FOR R2; NOTICE TO R3 SERVED)
THIS CRIMINAL PETITION IS FILED U/SEC. 439 OF CR.P.C. PRAYING THIS COURT TO, SET ASIDE THE ORDER DATED 21TH JULY 2023 PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE FTSC-I, BELAGAVI IN CRL. MISC NO.858/2023 (IN CONNECTION WITH KHANAPUR PS CR NO.231/2022) REJECTING THE BAIL APPLICATION FILED U/S 439 CR.P.C. FOR THE OFFENCES PUNISHABLE U/S 366A, 376(2)(n) AND U/S 4, 6 POCSO ACT AND RELEASE THE PETITIONER ACCUSED NO.1 ON BAIL.
THIS PETITION, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner who is the sole accused has filed this petition u/s.439 Cr.P.C. to release him on bail in Crime No.231/2022 of Khanapur Police Station for the offences p/u/s 366-A, 376(2)(n) IPC and Sec.4 and 6 of POCSO Act, 2012,
and that he has been falsely implicated. Without considering the facts and circumstances, the trial Court has rejected his bail petition. There is delay of 8 days in filing the complaint. He has been taken into custody after prolonged delay of 3 months. As per the Aadhar card of the prosecutrix, her date of birth is 06.09.2003 and as on the date of alleged incident, she was a major. Before the trial Court, the prosecutrix has filed an affidavit stating that she is a major and was in love with the petitioner and she has no objection to grant him bail. Based on the false complaint filed by the brother of prosecutrix, case is registered and investigation is taken up. Having regard to the fact that the prosecutrix is a major, the provisions of POCSO Act are not attracted. Petitioner is ready and willing to abide by any conditions that may be imposed and offer substantial surety to the satisfaction of the trial Court and prays to allow the petition.
respondent No.2 and the de facto complainant i.e. the brother of prosecutrix is arraigned as respondent No.3.
Therefore, he along with his friends Pinto Shivaji Sutar and Yogish Sutar searched for her at Khanapur, Talewadi, Goa, Chinchewadi, Parishwad etc. Their relatives also informed that she has not come to their house. Consequently on 30.11.2022, he filed the missing complaint.
5.1 During investigation, the concerned police found the prosecutrix and accused at Gadag. They were subjected to medical examination. The statement of prosecutrix reveal that she came to be acquainted with the accused while he was visiting her uncle’s house with tractor and they fell in love with each other. While she was alone in the house, petitioner had sexual intercourse with her on several occasion. As a result, she missed her periods for 4 months and with the petitioner she went to the hospital and after examination, doctor informed her that she is pregnant. Petitioner advised her to undergo abortion, but she did not agree and told him that she would commit suicide. Therefore, on the advice of petitioner, she left her home on 22.11.2022 and along
with petitioner they went to Gadag and stayed in a rented house. After coming to know that a missing complaint has been filed, she returned, to request her family members to take back the complaint. The prosecutrix has given birth to a son and both of them are kept in Shruti Open Shelter for Children, Belagavi run by Sri Shivalingeshwar Education Society.
5.2 After completing investigation, chargesheet is filed against the petitioner for the offences p/u/s 366-A, 376(2)(n) IPC and Sec.4 and 6 of POCSO Act, 2012. Charge sheet makes out a strong prima facie case. The prosecutrix is still a minor. If released on bail, there is likelihood of petitioner threatening and tampering with the witnesses especially the prosecutrix. He may also abscond and thereby protract the proceedings and prays to dismiss the petition.
prosecution is to be taken into consideration. The Aadhar card is prepared based on the information given by the parties which may not be authentic and as such, the same cannot be taken into consideration, especially in the presence of the certificate issued by the school authorities, which is based on information furnished at an undisputed point of time.
there is possibility of threatening and tamper her. Though in her statement u/s.164 Cr.P.C. given before the Magistrate, she has indicated that it was a love affair, having regard to the fact that she is still minor, she cannot be left at the mercy of petitioner atleast during her minority. For these reasons, this Court is of the considered opinion that at this stage petitioner is not entitled for bail and accordingly, the following:
ORDER
The petition filed u/sec.439 Cr.P.C. is dismissed.
Sd/JUDGE
CLK
List No.: 1 Sl No.: 13
3 issues framed by the court
Whether bail should be granted to the accused in a POCSO case involving a minor prosecutrix despite the petitioner's claim that she is a major and consensual.
Whether the Aadhar card card date of birth of the prosecutrix is reliable against school certificate evidence regarding her age.
Whether the likelihood of tampering with a vulnerable minor witness justifies denying bail.
4 provisions across 3 enactments
Shri. Raju
Chandrashekar Laxman Kattimani
The State of Karnataka
Smt. Vaishnavi
Vinayak T. Sutar
J.M. Khazi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
