Shri Muttu Alias Mutteppa S/O Basavaraj Kumbar Vs the State of Karnataka

THIS CRIMINAL PETITION IS FILED UNDER SECTION 483 OF BNSS, SEEKING TO GRANT A BAIL TO THE PETITIONER/ACCUSED NO.1 IN SAUNDATTI POLICE STATION IN CRIME NO.428/2023 DATED 14.12.2023 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 366, 376 OF IPC AND 4, 6 OF POCSO ACT PENDING ON THE FILE OF ADDL.DISTRICT AND SESSIONS JUDGE FTSC BELAGAVI IN SPECIAL CASE NO.154/2024.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE V.SRISHANANDA

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

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Heard Sri.Mahantesh S. Hiremath, learned counsel for the

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petitioner and Smt.Girija S. Hiremath, learned High Court Government Pleader for the State/respondent No.1.

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Present petition is filed under Section 439 of Cr.P.C. with the following prayer:

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“WHEREFORE, it is most respectfully prayed that this Hon’ble Court kindly be pleased to grant a bail to the petitioner/accused No.1 in Saundatti Police Station in Crime No.428/2023 dated 14.12.2023 for the offences punishable under Section 366, 376 IPC and 4 6 of POCSO Act pending on the file of Addl. District and Sessions Judge – FTSC Belagavi in Special Case No.154/24 in the interest of justice and equity.”

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Facts in brief which are utmost necessary for

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disposal of the petition are as under:

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3.1. A complaint came to be lodged with Soundatti Police Station by father of the victim girl alleging the commission of the offence under Section 363 of IPC at the first instance which was registered in Crime No.428/2023.

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3.2. Gist of the complaint averments would reveal that the victim girl had been eloped by the petitioner. After registering the case, police conducted detailed investigation inter alia traced the victim girl, recorded her statement and filed the charge sheet for the offence punishable under Section 363 of IPC and also under the provisions of Section 4 and 6 of the Protection of Children from Sexual Offences Act.

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3.3. Charge sheet materials disclose that after eloping the victim girl, petitioner said to have taken her to Bengaluru and made a house and thereafter, he had a forcible sexual intercourse with the victim girl. It also discloses that age of the victim girl is 17 years 06 months. Attempt made by the petitioner to obtain an order of bail is turned down by the learned Special Judge. Thereafter, petitioner is before this Court.

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Sri.Mahantesh S. Hiremath, learned counsel for the petitioner reiterating the grounds urged in the bail petition vehemently contended that victim girl being aged about 17 years 06 months, voluntarily proceeded with the accused and the physical relationship they had was in pursuance of the love affair that existed between the petitioner and the victim girl.

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Therefore, none of the ingredients are attracted so as to proceed against the petitioner for the aforesaid offences and sought for allowing the petition.

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He would further contend that the trial has begun and victim girl has been examined. Therefore, the apprehension of the prosecution that the petitioner may interfere with the true course of the justice is now not available to the prosecution. Therefore, sought for allowing the petition.

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Per contra, Smt.Girija Hiremath, learned High Court Government Pleader orally objects for grant of bail by contending that the theory of consensual physical relationship between the petitioner and the respondent is incorrect inasmuch as the victim girl has supported the case of the prosecution not only at the time of investigation but also when she is examined as a witness before the Trial Court.

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She would invite the attention of this Court to the material placed on record by the petitioner himself in the form of charge sheet materials wherein, it is crystal clear that the material placed on record is sufficient enough to hold that there was a physical relationship between the petitioner and the victim girl.

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She would further contend that at any stretch of imagination, there cannot be any consensual sex between the petitioner and the victim girl as the victim girl is aged below 18 years. Therefore, the consent if any, cannot be termed as legal consent and thus, sought for dismissal of the petition.

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Having heard the parties in detail, this Court

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perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that victim girl is aged about 17 years 06 months. To advance the case of the petitioner that there was a love affair between the petitioner and the victim girl, no material is placed on record.

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On the contrary, call records of mobile telephone of the petitioner and victim girl, placed on record would only go to show that there were frequent calls that has been made by the petitioner to the victim girl. What exactly is the conversation between the petitioner and the respondent is not forthcoming from the call records. Material on record would disclose that the victim girl was residing in Inamagovanakoppa village and from there, they went to Shirasangi bus stand and from there, the victim girl was taken to Bengaluru by the petitioner.

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Admittedly, since the victim girl is a minor, eloping the victim girl from the legal custody of her parents would be sufficient enough to attract the ingredients of offence under Section 363 of IPC.

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Likewise, the victim girl having supported the case of the prosecution before the learned Special Judge by deposing about the forcible physical relationship between the petitioner and the victim girl would be sufficient enough to prima facie establish the offence under Section 4 and 6 of the Protection of Children from Sexual Offences Act.

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Following the dictum of the Hon’ble Apex Court in the case of Independent Though v. Union of India and Another reported in AIR 2017 SC 4904 , the consent of the victim girl if any, is immaterial at least at this stage, while adjudicating the bail petition on merits.

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Expressing any opinion on the merits of the matter by holding the mini trial, would definitely hamper the rights of the parties during the trial one way or the other.

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Thus, desisting from holding a mini trial when the material on record is reappreciated, the theory of consensual sex propounded by the petitioner would not be sufficient enough to enlarge the petitioner on bail by exercising the special powers vested in this Court under Section 439 of Cr.P.C. having regard to the age of the victim girl.

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