IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.4562/2017 BETWEEN:
Premkumar H.M @ Swamy S/o Late Manjunath Aged about 23 years, R/at 6th Hoskote Village, Hebbale, Kushalnagara, Virajpet Taluk, Kodagu – 571216. ... Petitioner (By Sri.D.P.Prasanna, Advocate) AND:
State of Karnataka By Kushalnagara Police, Kodagu PIN – 571234 Represented by SPP High Court Building, Bengaluru – 560 001. ...Respondent (By Sri.Chetan Desai, HCGP) This Criminal Petition is filed under Section 439 Cr.P.C praying to enlarge the petitioner on bail in Crime No.156/2016 of Kushalanagar Rural Police Station, Kodagu for the offence punishable under Section 363, 376(2)(I) and (n) of IPC and Section 6 of POSCO Act.
This Criminal Petition coming on for Orders this day, the Court made the following:
ORDER This petition is filed by the petitioner/accused under Section 439 of Cr.P.C. seeking his release on bail for the offence punishable under Section 366(A), registered in respondent – police station Crime No.156/2016. After completion of investigation, charge sheet came to be filed for the alleged offences punishable under Sections 363, 376(2) (I) (n) of IPC and also under Section 6 of POSCO Act.
2. Father is the complainant in this case who lodged the complaint on 19.12.2016 stating that his daughter who went out of the house stating that she will bring her brother has not at all come back and that she was studying in 9th standard in Government school at Gonimaruru and due to the study leave she has not attended the school since one month and she was staying in the house of her grandmother and on 14.12.2016 when his son had been to put the battery for charging in the house of his grandmother, he informed to his mother that his sister is missing. Hence, she enquired with the relatives and as she did not find her, lodged a complaint with the respondent police on 19.12.2016 suspecting that it is the petitioner who is responsible for the said incident. On the basis of the said complaint, case came to be registered firstly for the offence alleged under Section 366A of IPC and after investigation, charge sheet came to be filed for other offences also.
3. Heard the arguments of the learned counsel appearing for the petitioner/accused and also the learned High Court Government Pleader appearing for the respondent-State.
4. The learned counsel for the petitioner made the submission, looking into statement of the victim girl which is recorded under Section 164 of Cr.PC, that she has clearly stated that she was in love with the petitioner and as the parents of other family members were not supporting the victim girl, she herself left the house and went along with the petitioner. She has also stated in her statement that according to her will and volition there was sexual intercourse between them and thereafter they went to the house of sister of the petitioner and thereafter they went to the house of mother-in-law of the petitioner for Sankranti festival. Therefore, in her statement she has stated that the petitioner has not committed any offence and she herself went along with him. The learned counsel submitted that in view of her statement there is no prima facie material as against the present petitioner for the alleged offence and hence the counsel submitted that the petitioner may be enlarged on bail by imposing reasonable conditions.
5. Per contra, learned High Court Government Pleader made submission that in the statement recorded under Section 164 of Cr.P.C she herself has stated that number of times there was sexual intercourse between the two. He also made submission that age of the victim girl is 14 years 9 months hence, he submitted that even if there is a consent for the act, it is rape and also the provisions of POSCO Act are attracted. Hence, submitted that the petitioner is not entitled for grant of bail.
6. I have perused the grounds urged in the bail petition, FIR, charge sheet and other materials placed on record.
7. The statement of the victim girl was recorded by the learned Magistrate, Somawarpet under Section 164 of Cr.P.C. Looking to this statement also, it is seen the victim girl is aged 14 years but according to prosecution material placed on record, it was stated 14 years 10 months and in the statement under Section 164 Cr.P.C she herself has stated that when she went along with the petitioner they stayed for a period of one week in one small house they had sexual intercourse with each other. The statement of the victim girl goes to show that there was a sexual intercourse between the two. When the girl is aged 14 years 10 months even if it is consent it is immaterial. The statute itself says that it is a rape. The provision of Section 6 of the POSCO Act is also there for the alleged offences. Therefore, considering these aspects of the matter, I am of the opinion that there is a prima facie case made out by the prosecution regarding involvement of the petitioner. Hence, it is not a fit case to exercise discretion in favour of the petitioner.
Hence, petition is hereby rejected.
Further the learned counsel for the petitioner made a submission that since from the date of arrest the petitioner is in custody. Therefore, the concerned Sessions Court is hereby directed to take up the matter on priority basis and to dispose of the same as early as possible but not later than six months from the date of receipt of copy of this order.
Registry is directed to send the copy of this order to the concerned Sessions Court immediately.
Sd/- JUDGE UN