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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.6097/2022
BETWEEN:
HENSON REYMOND,
S/O HENRY,
AGED ABOUT 33 YEARS,
RESIDING AT FLAT NO.102,
HOUSE NO.345,
LADEDEW RESIDENCY,
HARALURU,
BENGALURU-560 102. ... PETITIONER
(BY SRI RAKSHITH R., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
STATE BY BELLANDURU P.S.,
REP. BY SPP,
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
2. PRIYA E.,
D/O P. RAMARAJ,
AGED ABOUT 40 YEARS,
R/AT FLAT NO.202,
345, LAKEDEW RESIDENCY,
HARALUR ROAD, HARALUR,
BENGLURU-560 102. ... RESPONDENTS
(BY SRI H.S. SHANKAR, HCGP FOR R-1,
R-2 SERVED)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.194/2021 (SPL.C.C.NO.125/2022) OF BELLANDURU P.S.,
BENGALURU FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 376, 354(A) AND 506 OF IPC AND SECTIONS 4, 6, 8,
12 OF POCSO ACT PENDING ON THE FILE OF THE ADDL. CITY
CIVIL AND SESSIONS JUDGE, FTSC-II, BENGALURU.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 439 of Cr.P.C. seeking regular bail of the petitioner in Crime No.194/2021 (Spl.C.C.No.125/2022) of Bellanduru Police Station, Bangalore, for the offence punishable under Sections 376, 354A and 506 of IPC and Sections 4, 6, 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short).
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. The factual matrix of the case of the prosecution is that this petitioner is the neighbour of the victim girl/C.W.2 and was having acquaintance with C.W.1 and C.W.2 used to go to his house to see the cat frequently. In the month of August 2021, 3 in the evening at 4.00 p.m., when C.W.1 and C.W.3, who are the parents of the victim girl, went to J.P. Nagar, taking advantage of C.W.2 was alone in the house, he secured her to his house and made her to sit on the sofa and gave some substance to drink and thereafter he subjected her for sexual act and also caused life threat not to reveal the same to anybody. Based on the complaint filed by the mother of the victim girl, the police have registered the case, investigated the matter and filed the charge-sheet invoking the offence under Sections 376, 354A and 506 of IPC and Sections 4, 6, 8 and 12 of the POCSO Act.
4. The learned counsel for the petitioner submits that this petitioner is in custody from 28.11.2021, and apart from that, the learned counsel would vehemently contend that the victim girl only gave consent and it is a consensual sex and the same is found in the history given by the victim at the time of medical examination. The learned counsel submits that the victim girl is aware of the consequences of subjecting herself for sexual act. The learned counsel in support of his arguments, relied upon the judgment of the Bombay High Court, passed in Criminal Bail Application No.127/2022, wherein the High Court 4 exercised the discretion in favour of the accused and observed that the victim being below the age of 18 years, is a 'child' under the POCSO Act and observed that it is necessary to note that the victim had attained the age of 16 years and 6 months and ought to be aware of the nature and the consequences of the act and hence granted bail. The learned counsel referring this judgment would contend that the victim is aged about 16 years and investigation already been completed and no need of further custodial trial.
5. Per contra, the learned High Court Government Pleader appearing for the respondent-State submits that admittedly the victim girl is aged about 16 years. The petitioner secured her to his house and subjected her for sexual act and specific allegation is made that he gave some substance to drink and thereafter she was subjected to sexual act. The medical records also discloses that she was subjected to sexual act and in 164 statement, she categorically explained with regard to the incident and also categorically stated that he threatened her not to reveal the same to anybody or else he would take away the life of her mother. When such prima facie material is available 5 before the Court, it is not a fit case to exercise the discretion in favour of the petitioner. The learned counsel submits that the petitioner is a married person and subjected the victim girl aged about 16 years for sexual act and he is a neighbour and frequently the victim used to visit the house to see the cat.
6. Having heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State and also on perusal of the material available on record, the mother of the victim girl had lodged the complaint and also the victim's statement was recorded before the learned Magistrate under Section 164(5) of Cr.P.C., wherein she categorically alleged subjecting her for sexual act by the petitioner. The petitioner is a married person and the victim is aged about 16 years. The learned counsel for the petitioner brought to the notice of this Court the sexual assault history, wherein she has stated that on her own will sexual act was taken place, but the Court has to take note of 164 statement made before the learned Magistrate, wherein she has categorically alleged about the petitioner subjecting her for sexual act and also causing of life threat not to reveal the same to anybody. When there are prima facie material against the petitioner, it is 6 not a fit case to exercise the powers under Section 439 of Cr.P.C.
7. The learned counsel for the petitioner relied upon the judgment of the Bombay High Court (supra), wherein the High Court observed that the victim being below the age of 18 years, is a 'child' and it is necessary to note that the victim had attained the age of 16 years and 6 months and ought to be aware of the nature and the consequences of the act and hence granted bail. The Court has to take note of the object in bringing the special enactment, wherein under Section 2(d) of the POCSO Act defined the 'child' below the age of 18 is minor and hence the question of consent does not arise and the question of consequences does not arise and the judgment is not binding on this Court and the Court cannot consider the same as a precedent while considering the bail petition.
8. The other contention of the learned counsel for the petitioner that this petitioner is in custody from 28.11.2021 is not a ground to enlarge the petitioner on bail when a heinous offence of sexual act is committed against the minor girl. 7
9. In view of the discussions made above, I pass the following:
ORDER The petition is rejected.
Sd/-
JUDGE MD