Prashanth vs State By Subramanyanagar Police
2021 Latest Caselaw 2242 Kant

                                      Crl.P.No.7660/2020

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 14TH DAY OF JUNE 2021

                           BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

        CRIMINAL PETITION No.7660/2020

BETWEEN:

PRASHANTH
S/O MARUTHI KHANDARI
AGED ABOUT 25 YEARS
R/AT KONDGOOL
HUMNABAD TALUK
BIDAR DISTRICT - 585 329                  ...PETITIONER

(BY SRI ZAMEER PASHA, ADVOCATE)

AND:

STATE BY SUBRAMANYANAGAR POLICE
REPRESENTED BY ITS
PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001                      ...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.187/2019 REGISTERED BY SUBRAMANYANAGAR
POLICE    STATION,   BENGALURU    FOR   THE   OFFENCES
PUNISHABLE UNDER SECTIONS 363, 366 AND 376 OF IPC AND
SECTION 6 OF PROTECTION OF THE CHILDREN FROM SEXUAL
OFFENCES ACT, 2012.

     THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE
THE FOLLOWING:
                                               Crl.P.No.7660/2020

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                           ORDER

Heard the petitioner's Counsel. Office objections are

overruled.

2. This is third successive petition of the

petitioner seeking bail in Crime No.187/2019 of

Subramanyanagar police station which is now pending in

Special C.C.No.64/2020 on the file of LIV Additional City

Civil & Sessions Judge, Bengaluru.

3. The charge against the petitioner is that on

08.11.2019 he kidnapped the victim girl CW.2 aged 17

years from the lawful custody of her parents, kept her

captive in the house of CW.6 at Kanjenahalli Village of

Chikballapura Taluk from 08.11.2019 to 20.11.2019. It is

further alleged that during such stay in the said house, he

committed repetitive penetrative sexual assault on her,

thereby committed the offences punishable under Sections

363, 366 and 376 of IPC and Section 6 of the Protection of

Children from Sexual Offences Act, 2012 ('POCSO Act' for

short).

Crl.P.No.7660/2020

4. The petitioner's earlier petition in

Crl.P.No.8853/2019 was rejected on 17.03.2020 on

merits. He filed Crl.P.No.6008/2020 and withdrew that on

30.11.2020. Referring to the statement of the victim girl in

the charge sheet, learned Counsel for the petitioner

submits that she accompanied the petitioner voluntary.

5. The order in Crl.P.No.8853/2019 shows that

the said ground was considered. The said order further

shows that it was even contended that the alleged sexual

relationship between CW.2 and the petitioner was

consensual one. Considering all such contentions, this

Court held that minor's consent is no consent in the eye of

law.

6. Learned Counsel for the petitioner relies upon

the following judgments to persuade this Court to press his

claim for bail.

(i) Dataram Singh vs. State of Uttar Pradesh1

(ii) Sri Somappa @ Swamy vs. State of Karnataka2

(iii) Jayaram @ Appu v. The State of Karnataka3

(2018) 3 SCC 22

Crl.A.No.100090/2017 DD 24.07.2018

Crl.P.No.8678/2019 DD 02.03.2020 Crl.P.No.7660/2020

7. In Dataram Singh's case referred to supra the

offences involved were one under Sections 419, 420, 406

and 506 of IPC. In that context, the Hon'ble Supreme

Court held that until the charge is proved the accused has

the benefit of presumption of innocence. But Section 29 of

the POCSO Act a special legislation for the welfare of the

minor children states that the moment the accused is

prosecuted for the offences under the said Act, it shall be

presumed that he has committed or abetted or attempted

to commit the offence.

8. Similarly, the judgment in Sri Somappa @

Swamy's arises out of order of conviction and sentence

passed by the trial Court on full fledged trial. On

re-appreciation of the evidence, this Court acquitted the

accused. The judgment in Jayaram @ Appu's case shows

that in that case, the victim had given statement before

the judicial Magistrate exonerating the accused. Therefore

the judgments relied upon by learned Counsel for the

petitioner cannot be justifiably applied to the facts of the

case on hand.

Crl.P.No.7660/2020

9. Learned Counsel for the petitioner contends

that the petitioner's mother is suffering from medical

condition and on that ground the petitioner is entitled for

bail. Neither such ground is made out in the petition nor

any material is produced to substantiate the same.

Therefore the petition is dismissed.

Sd/-

JUDGE

KSR