The High Court rejected a petition for anticipatory bail filed by an accused in a POCSO and rape case. The court held that the petitioner's presence was required for medical examination and DNA testing to ascertain paternity, thereby denying bail.
Anticipatory bail petition filed under Section 438 Cr.P.C. is rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC-D:11083 CRL.P No. 101933 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL PETITION NO. 101933 OF 2023
BETWEEN:
SHASHIKUMAR S/O SHIVAMURTHINAYAK LAMANI, AGE: 23 YEARS, OCC: COOLIE, R/O. HALENIDANEGILU, TQ: HIREKERUR, DIST: HAVERI-581111
…PETITIONER
(BY SRI. AVINASH BANAKAR, ADVOCATE)
AND:
CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Date: 2023.09.23 16:36:31 +0530
…RESPONDENTS (BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1, NOTICE TO R2 SERVED)
THIS CRIMINAL PETITION IS FILED U/SEC. 438 OF CR.P.C., PRAYING THIS COURT, ALLOW THIS PETITION AND ENLARGE THE PETITIONER ON ANTICIPATORY BAIL IN CRIME NO.68/2023 REGISTERED BEFORE HIREKERUR POLICE, FOR AN OFFENCE PUNISHABLE U/S. 363, 376 OF IPC AND U/S. 4 AND 6 OF POCSO ACT, 2012, AGAINST THE PETITIONER SET ASIDE THE ORDER DATED 30.08.2023 PASSED BY THE TRIAL COURT
NC: 2023:KHC-D:11083 CRL.P No. 101933 of 2023
IN CRL.MISC.NO.364/2023 ON THE FILE OF ADDL. DISTRICT AND SESSIONS JUDGE, FTSC-I HAVERI.
THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner who is the sole accused has filed this petition u/sec.438 Cr.P.C. to grant him anticipatory bail, contending that he is not at all involved in the commission of the alleged offence and he has been falsely implicated with the malafide intention. Since the provisions of Sec.376 IPC are not attracted the Sessions Court ought to have granted him anticipatory bail. There are no eye witnesses to the alleged incident. The prosecutrix is aged about 17 years and in love with him. For this reason also, petitioner is entitled for bail and prays to allow the petition.
that complainant is the mother of prosecutrix. About one week prior to the filing of the complaint, prosecutrix complained of stomach ache and omitting sensation. Though she was given treatment at Gundagatti Hospital, Masuri, there was no relief. Therefore, she was taken to Government Hospital, Shikaripura where after examination and scanning, doctors revealed that prosecutrix is 6 weeks pregnant. On enquiry, prosecutrix disclosed that since 2 years petitioner is in love with her and on 03.03.2023, while she was alone in the house he took her to his house
and had sexual intercourse. As on the date of incident, prosecutrix was aged 17 years 3 months, a minor.
3.1 Based on the complaint, case is registered in Crime No.68/2023 for the offences p/u/s 363, 376 IPC and Sections 4 and 6 of POCSO Act and investigation is taken up. From the date of complaint, petitioner has absconded. As per the decision of the medical board, prosecutrix has undergone abortion and the samples are collected and sent for DNA test. The statement of prosecutrix is
recorded u/sec.164 Cr.P.C. The custodial presence of the petitioner is required for medical examination inasmuch as for DNA testing to ascertain the paternity of the fetus and prays to dismiss the petition.
As on the date of incident, she was aged 17 years 3 months. The fact of sexual assault by the petitioner has come to light only when the prosecutrix complained her stomach ache and was examined by the doctors and the scan report revealed that she was 6 weeks pregnant. As per the decision of the medical board, the pregnancy was terminated. The samples are collected and sent for DNA test. Having regard to the specific allegations made against the petitioner, his medical examination and collection of blood sample for DNA testing to ascertain the paternity of the fetus is necessary to prove the allegations against the petitioner. In the circumstances, this Court is
of the considered opinion that petitioner is not entitled for
anticipatory bail and accordingly the following:
ORDER
The petition filed u/sec.438 Cr.P.C. is
rejected.
Sd/JUDGE
CLK List No.: 1 Sl No.: 8
2 issues framed by the court
Whether the petitioner is entitled to anticipatory bail under Section 438 Cr.P.C. in a case involving sexual offence under IPC and POCSO where the prosecutrix was a minor and pregnancy was alleged.
Whether the need for the petitioner's presence for DNA testing and medical examination precludes the grant of anticipatory bail.
5 provisions across 3 enactments
SHASHIKUMAR S/O SHIVAMURTHINAYAK LAMANI
THE STATE OF KARNATAKA, THROUGH HIREKERUR PS
PREMABHAI W/O NAGANAYAK LAMANI
J.M.KHAZI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
J.M.KHAZI
Parties & counsel
