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CRL.P No. 12513 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL PETITION NO. 12513 OF 2022
BETWEEN:
PRADEEP KUMAR
S/O MALLA SHETTY
AGED ABOUT 25 YEARS,
R/AT BELLIJAGALI MOLE
VILLAGE,
MALAVALLI TALUK,
MANDYA 571 430.
…PETITIONER
(BY SRI. JAVEED S., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY HANUR POLICE STATION,
KOLLEGALA SUB DIVISION,
CHAMARAJANAGAR DISTRICT
REPT. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE 560001
2. SMT. POORNIMA C
AGED ABOUT 42 YEARS,
IN CHARGE OFFICER
GOVT OFFICIAL NON GAZETTE CHILD WELFARE
COMMITTEE,
CHAMARAJANAGAR OFFICE
KOLLEGAL TOWN,
CHAMRAJANAGAR 571 439
…RESPONDENTS
(BY SRI.VINAYAKA V.S., HCGP FOR R-1; R-2 SERVED)
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CRL.P FILED U/S.439 CR.P.C BY THE ADVOCATE FOR THE
PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY
BE PLEASED TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.165/2021 OF HANUR P.S., CHAMARAJANAGAR DISTRICT FOR THE OFFENCE P/U/s 9,,10,11 OF PROHIBITION OF CHILD
MARRIAGE ACT AND SEC.376(3) OF IPC AND SEC.4 OF POCSO
ACT IN SPL.C.NO.NO.23/2022 PENDING BEFORE THE COURT
OF THE PRL. DISTRICT AND SESSIONS JUDGE,
CHAMARAJANAGAR.THE PRL. DISTRICT AND SESSIONS JUDGE,
CHAMARAJANAGAR HAS REJECTED THE BAIL PETITION ON
03.02.2022 IN CR.NO.165/2021.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Javeed S., learned counsel for the petitioner and Sri. Vinayaka V.S., learned High Court Government Pleader for respondent No.1-State.
2. Respondent-No.2 who is the complainant though served with the notice, remained absent.
3. Present petition is filed under Section 438 of Cr.P.C. with the following prayer:
"Wherefore, it is humbly prayed before this Hon'ble Court that, in light of the foregoing submission, this Court may be pleased to allow this petition and grant regular bail to the petitioner in Spl.Case No.23/2022, pending before the Court of the Principal District and
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Sessions Court, Chamarajanagar for the offences punishable u/s 9, 10, 11 of Prohibition of Child Marriage Act and u/s 376(3) of IPC and u/s 4 of POCSO Act, in the interest of justice. Pending in Hanur Police in Crime No.165/2021."
4. The brief facts of the case are as under:
Upon complaint lodged by respondent No.2 who is the Official of Child Welfare Committee, Charamajanagar, Hanur Police registered a case in Crime No.165/2021 on 15.12.2021, for offences punishable under Sections 9, 10, 11 of Prohibition of Child Marriage Act and under Section 376(3) of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for short), and under Section 4 of Protection of Children from Sexual Offences Act, 2012.
5. The gist of the complaint averments reveal that the victim girl being a minor got married with Pradeep Kumar (petitioner) at Mudukutore Ganesh Temple, T. Narasipura. Admittedly, it is a child marriage and after marriage there is physical relationship. Therefore, police have invoked the provisions of POCSO Act.
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6. After registering the case, the police are investigating the matter and during the course of investigation apprehended the petitioner. The attempt made by the petitioner to seek grant of bail is turned down by the learned District Judge by order dated 3.2.2022. Thereafter, the petitioner is before this Court.
7. Sri. Javeed S., learned counsel for the petitioner reiterating the grounds urged in the petition vehemently contended that petitioner married the victim girl and at the most, it is a case of marital rape and not at all a child abuse so as to invoke the provisions of POCSO Act and sought for grant of bail.
8. Per contra, the learned HCGP opposes the bail grounds by contending that the provisions of the POCSO Act are stringent enough to include the act of sexual intercourse with a minor girl even in case a minor girl is married to the accused, are punishable having regard to the specific provisions envisaged under the POCSO Act and sought for dismissal of the petition.
9. Perused the material on record.
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10. According to the complaint averments itself, it is seen that the victim girl is aged about 16 years at the time of complaint. It is found from the complaint averments that the marriage of the petitioner has taken place with the victim girl at Mudukutore Ganesha Temple, T. Narasipura.
11. In the case on hand, not only there are violations of Child Marriage Act, but, also having regard to the fact that there is sexual relationship between petitioner and victim girl, provisions of the POCSO Act has been invoked by the Investigating Agency and rightly so having regard to the object of enacting the POCSO Act.
12. Suffice to say that mere marriage of the petitioner with the victim girl would not itself grant a licence for the petitioner to have a physical relationship with the minor girl in view of the object that is sought to be achieved by enacting the POCSO Act. Whether at all, the act of the accused would amount to aggravated penetrative sexual assault as is defined under Section 5 of the POCSO Act or not, cannot be decided by this Court at this stage by holding a mini trial.
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13. Suffice to say, having regard to the stringent conditions carved out in the POCSO Act, this Court is of the opinion that prima-facie materials are sufficient enough to hold that petitioner is not entitled to have an order of grant of bail under Section 439 of Cr.P.C. in view of the proposition of law enunciated by the Hon'ble Apex Court in Independent Though .vs. Union of India and another reported in AIR
2017 SC 4904.
14. It is always open for the petitioner to approach this Court with a successive bail petition if there is a positive changed circumstance in favour of the petitioner during trial after examination of the victim girl.
15. It is also found from the records that the accused is in custody from 16.12.2021 and therefore, it is expedient to direct the trial Court to expedite the trial and conclude the same as early as possible.
16. Accordingly, the following:
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ORDER
The criminal petition is rejected.
Sd/-
JUDGE
GPG/ALB
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