The Karnataka HC recently comprising of a bench of Justice Rajendra Badamikar while rejecting the bail application of a rape accused observed that the Protection of Children from Sexual Offences (POCSO) is a special law that overrides personal laws. (Farddin v. State and another).
The accused was booked for enticing away a 16-year-old Muslim girl and committed penetrative sexual assault with her.
Facts of the case
The petition was filed by the petitioner/accused No.1 under Section 439 of Cr.P.C for enlarging him on bail in case registered for the offences punishable under Sections 363, 342, 354D, 376(2)(n), 376(3) of I.P.C and Sections 6,12, 17 of the POCSO Act,2012.
Courts Observation and Judgment
The bench at the very outset taking note of the statement of the victim noted that the statement Prima-facie disclose that the consent of the victim was not there. Even if the consent is said to be there, since the victim is a minor her consent become irrelevant.
The court taking note of the contention of the parties remarked, "The learned counsel for petitioner argues that the age of puberty is required to be taken note off as parties are Mohammedans. But it is to be noted here that the POCSO Act and IPC are substantiate acts and they prevail over personal law and under the guise of personal law the petitioner cannot seek regular bail. The statement of the victim under Section 164 itself clearly establishes that she was forced to have sexual relationship and that too after abducting her from custody of lawful guardian."
The bench rejecting the petition observed, "Under these circumstances, there is prima-facie material evidence against the present petitioner and the medical evidence further discloses that the hymen was not intact and it establish that there is a sexual relationship. No doubt Investigation is completed and charge sheet has been laid down but however mere submission of the charge sheet does not give any right to the present petitioner to claim bail as a matter of right. There is possibility of tampering with the prosecution witnesses. Looking to these facts and circumstances, the petition is devoid of merits and needs to be rejected. Accordingly, the petition is rejected. "
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