IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.8650/2018 BETWEEN :
Surya S/o Venkatesh Aged about 19 years R/at No.114, 4th Cross, Venkataswamappa Layout Chamundinagara, R.T. Nagar Bengaluru-560 032.
(By Sri N. Nagaraja, Advocate) AND :
State of Karnataka by R.T. Nagar Police Station Bengaluru-560 032 Represented by Government Pleader High Court of Karnataka Bengaluru-560 001.
… Petitioner … Respondent (By Smt. Namitha Mahesh B.G., HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.267/2018 (Spl. C.C.No.761/2018) of R.T.Nagar Police Station, Bengaluru City for the offences punishable under Sections 363, 376 of Indian Penal Code and Sections 4 and 6 of POCSO Act, 2012.
This Criminal Petition coming on for orders this day, the Court made the following:-
O R D E R This petition is filed by the accused under Section 439 of Cr.P.C. praying to release him on bail in Special CC.No.761/2018 (Crime No.267/2018 of RT Nagar Police Station) for the offences punishable under Sections 363, 376 of IPC and Sections 4 and 6 of POCSO Act.
2. I have heard the learned counsel for the petitioner and the learned HCGP for the respondent- State. Though the notice has been served on the complainant, she has remained absent.
3. Before going to consider the submissions made by the learned counsel appearing for the parties, it is necessary to state the facts of the case in brief. The complainant is the mother of the victim girl. She is working as Security in Ambedkar Medical College. It is alleged in the complaint that the victim is pursuing her studies in Vidya Vani School. On 8.9.2018 early morning she was found missing from the place where she was sleeping and as such a missing complaint was filed. Subsequently during the course of investigation, she was traced and accused was also apprehended. After completion of investigation the charge sheet has been filed against the accused for the offences punishable under Sections 363, 376 of IPC and Sections 4 and 6 of POCSO Act.
4. It is the submission of the learned counsel for the petitioner that the petitioner is innocent and there is a delay in lodging the complaint. By drawing my attention to the statement of the victim recorded under Section 164 of Cr.P.C by the learned Magistrate, he submitted that the said statement does not disclose any allegation of sexual assault said to have been committed by the petitioner. He further submitted that the medical records which have been produced also do not substantiate the case of the prosecution. He submitted that on medical examination, other organs of the victim found to be normal and there is no recent sexual assault on her. He further submitted that the accused and the victim were loving with each other and on the date of the alleged incident, they were talking during the intervening night and by seeing her brother-in-law, the victim went along with the accused voluntarily without there being any force. He further submitted that the charge sheet has already been filed and the accused is not required for the purpose of investigation or interrogation. He further submitted that as there are so many mitigating factors, petitioner is entitled to be released on bail. In order to substantiate his contention, he has relied upon a decision in the case of Sunil Mahadev Patil Vs. the State of Maharashtra in Bail Application No.1036/2015 decided on 3.8.2015. He further submitted that the age of the victim girl is more than 15 years and she is capable of giving consent for sexual intercourse. On these grounds, he prayed to allow the petition.
5. Per contra, the learned HCGP vehemently argued and submitted that the school records disclose that as on the date of the alleged incident, the victim girl was 14 years one month and she is not major so as to give consent for sexual intercourse. Though there was a consent, consent is of no consequence. In order to substantiate the said contention, she has relied upon a decision of the Hon’ble Apex Court in the case of State of H.P. vs. ShreeKant Shekari, reported in (2004)8 SCC 153. She further submitted that the statement of the victim was recorded under Section 164 of Cr.P.C. wherein she has clearly stated that when they were in the room, though she resisted for sexual intercourse, the accused had sexual assault on her. She further submitted that at the time when the victim was taken by the accused, she has also been sexually assaulted and the said sexual assault was without there being any consent and therefore it cannot be held as a consensual sexual assault. Under the said facts and circumstances, she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. On perusal of the records, it indicates that on 8.9.2018 when the complainant saw the victim, she was not there in the house and as such missing complaint was registered under Section 363 of IPC. Thereafter the victim and the accused were traced and thereafter during the course of investigation, she came to know that the victim has been sexually assaulted and as such other provisions of POCSO Act are added. Though it is contended by the learned counsel for the petitioner that there is no allegation of sexual assault in the statement of the victim recorded under Section 164 of Cr.P.C., in the last line of the said statement, the victim girl has stated that though she refused for sexual intercourse, the accused committed sexual assault on her. Victim is 14 years and one month. Even though there is consent, it is not considered to be consensual act since she being the 14 years of age and she is not able to give consent. As held by the Hon’ble Apex Court in the case State of H.P. vs. ShreeKant Shekari (quoted supra) the question of consent is of no consequences. Under the said facts of circumstances, there is a prima facie material to show that accused has committed the alleged offence which is considered to be serious. Under such circumstances, the petitioner has not made out any case to release him on bail.
Hence, petition stands dismissed.
Sd/- JUDGE *ck/-