IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO.7552/2019 BETWEEN:
SRI DILIP KUMAR S/O MUNIKRISHNAPPA AGED ABOUT 25 YEARS RESIDING AT: LIBRARY ROAD KANAKAPURA MAIN ROAD BENGALURU-560 096.
(BY SRI: RUDRAPPA.P., ADV.,) AND:
THE STATE OF KARNATAKA BY THALAGHATTAPURA POLICE STATION BENGALURU RURAL DISTRICT BENGALURU-560 087.
REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU-560 087.
(BY SRI: HONNAPPA, HCGP) ...PETITIONER ..RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.99/2019 (SPL.C.NO.302/2019) REGISTERED BY THALAGHATTAPURA POLICE STATION, BENGALURU, FOR THE OFFENCE P/U/S 376(3) AND 506 OF IPC AND SECTION 4,5(L) AND 6 OF POCSO ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel for the petitioner and the learned HCGP for respondent-State. Perused the records.
2. The petitioner is the sole accused in the Special Case No. 302/19 on the file of the Principal District and Sessions Judge, Bengaluru Rural District, Bengaluru registered for the offence punishable under Sections 376(3), 506 of IPC, and Sections 4, 5(L) and 6 of POCSO Act.
3. It is the case of the prosecution that the victim girl has come in contact with the petitioner during November 2018. The petitioner started loving her and also forced her to love him. The victim girl has stated that she is only aged about 16 years and hence should not get into love at this stage. Even-though, the petitioner asked her to love him forcibly, the victim girl asked the petitioner that they shall stay as friends and he agreed for the same. In-spite of agreeing for the same, the petitioner took the victim girl outside and promised to marry her. The victim girl replied that after completion of 18 years of age, she can consider his request. In the above said background, it is said that the petitioner wants to see the house of victim girl and she took him to her house and had forcible sexual intercourse with the victim girl against her wishes and also assuring that he would like to marry her. The said physical relationship continued between each other. Now in the month of May 2019, she came to know that she became pregnant. Only then, the parents of the victim girl enquired her and she disclosed the relationship between herself and the petitioner.
5. During the course of investigation, the statement of the victim girl was also recorded under Section 164(5) of Cr.P.C. She reiterated the allegations made against the petitioner. The documents secured by the Police also show that the victim girl was less than 16 years as on the date of alleged incident.
6. The learned counsel for the petitioner strenuously contended and relied upon the decision of this Court passed in Criminal Petition No.1195/2017 dated 13.07.2017 wherein, this Court has made an observation on the provisions of Section 35(1) of POCSO Act, containing the validity of the statement which was not recorded within thirty days. Therefore, the Court has granted bail to the petitioner in the said case. But on perusal of the said provisions of Section 35(1) of POCSO Act, though it is the mandatory procedure to be followed by the jurisdictional police in view of the statement recorded under Section 164(5) of Cr.P.C. within thirty days under the said provisions and though it is in the nature of mandatory provision, the said procedural irregularity if any, found during the course of investigation itself is not sufficient to absolve the entire materials on record so as to dismiss the case of prosecution. Therefore, in my view, the decision of this Court cited above is binding on this case.
7. Looking to the above said facts and circumstances, the statement of the victim girl under Section 161 of Cr.P.C. which was recorded at the earlier point of time, the statement of other witnesses and the statement of the victim girl under Section 164(5) of the Cr.P .C. recorded before the jurisdictional Magistrate, it is seen that, there are serious allegations made against the petitioner.
8. In the above said facts and circumstances, I do not find any strong reason to enlarge the petitioner on bail. Though the learned counsel for the petitioner tried to convince this Court stating that the said victim girl was loving some other boy by name Vasanth and the victim girl has also crossed 17 years, the materials available on record shows that the victim girl was not crossed 16 years.
The petition is devoid of merits and the same is liable to be dismissed and accordingly it is dismissed.
Sd/- JUDGE SSD