Karnataka High Court
Sri Basavaraj vs State By on 7 February, 2022
Bench: K.S.Mudagal
CRL.A.No.143/2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.143/2022
BETWEEN:
SRI.BASAVARAJ
S/O SHANKAREGOWDA
AGED ABOUT 27 YEARS
R/O KABBALI VILLAGE
HIRISAVE HOBLI
CHANNARAYAPATNA TALUK
HASSAN DISTRICT - 573 141 ... APPELLANT
(BY SRI.D.N.DHRUVA KUMAR, ADV.)
AND:
1. STATE BY WOMEN POLICE STATION
HASSAN
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU - 560 001
2. THE DISTRICT CHILD WELFARE OFFICER
DISTRICT CHILD PROTECTION WING
GDM BUILDING, 2ND CROSS
RAKSHANAPURA
HASSAN - 573 201
REPTD. BY STATE PUBLIC PROSECUTOR
... RESPONDENTS
(BY SRI.SHANKAR H S , HCGP FOR RESPONDENTS
VIDE ORDER DATED 07.02.2022 SERVICE OF
CRL.A.No.143/2022
2
NOTICE TO MOTHER OF VICTIM HELD SUFFICIENT)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
14(A)(2) OF THE SC/ST (POA) ACT PRAYING TO SET ASIDE THE
ORDER DATED 04.12.2021 PASSED IN SPL.C.NO.404/2021 BY
THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN
FTSC-1, AND GRANT BAIL TO THE APPELLANT IN SPECIAL C
NO.404/2021 IN CR.NO.90/2021 OF PUNISHABLE UNDER
SECTION 3(2) (V) OF SC/ST (POA) ACT, SECTIONS 9, 10, 11 OF
PROHIBITION ON CHILD MARRIAGE ACT, SECTION 6 OF POCSO
ACT AND SECTION 376, 366 A OF IPC ON THE FILE OF THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-1,
HASSAN.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Learned High Court Government Pleader submits
report of the Investigating Officer regarding service of
notice on the mother of victim.
2. Service of notice on respondent No.2 held
sufficient. Learned High Court Government Pleader accepts
notice for respondent No.2 also.
3. Aggrieved by the rejection of his bail
application, accused No.1 in Crime No.90 /2021 of Hassan
Women police station has preferred the above appeal.
CRL.A.No.143/2022
4. CW.1 Child Protection officer of Women and
Child Development office at Hassan filed the complaint
before Hassan Women police station alleging that accused
Nos.2 to 5 have performed the marriage of victim 'X' (For
the purpose of confidentiality the victim is referred to
henceforth as 'X') with first accused, though she was aged
only 17 years.
5. Initially, the first information report was
registered for the offences punishable under Sections 9,
10, 11 of Prohibition of Child Marriage Act 2006. After the
investigation, the respondent police have charge sheeted
the appellant and other accused for the offence punishable
under Sections. 9, 10, 11 of Prohibition of Child Marriage
Act, Section 366A, 376 of IPC, under Sections 3(2)(v) of
the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and under Section 6 of
Protection of Children from Sexual Offences Act 2012.
CRL.A.No.143/2022
6. Accused No.3 is the mother of the victim,
accused Nos. 2 and 4 are the parents of the appellant,
accused No.5 is the relative of appellant. It is alleged that
at the intervention of accused No.5, accused Nos.2 and 4
performed the marriage of 'X' with first appellant on
20.06.2021 at 10.00 a.m. in a temple in Hassan. It is
further alleged that after such marriage, the appellant
sexually cohabited with 'X', though she was minor.
7. The appellant is arrested on 26.08.2021 and
he is in Judicial Custody. The trial Court by the impugned
order rejected the bail application on the ground that there
is prima-facie material to show his involvement in the
case. It is stated that the mother and the relatives of 'X'
themselves voluntarily performed the marriage with the
appellant. Therefore, at this stage there is no prima-facie
material to show that there was caste based
discrimination.
8. So far as other offences admittedly alleged
sexual cohabitation was subsequent to the marriage. As
CRL.A.No.143/2022
per the prosecution the victim is aged about 17½ years.
The only material in the charge sheet to prove such age is
School certificate said to have been issued by CW.18. In
that 'X's date of birth is shown as 14.12.2004. What was
the basis for such entries has to be ascertained on trial. If
age is not proved then provision of the POCSO Act or
Section 376 of IPC may not attract as the alleged
cohabitation is after marriage. Admittedly accused Nos.2
and 5 who performed the marriage have been already
granted bail. Under such circumstances, it is not just and
appropriate to subject the appellant to pre trial conviction
and sentence. Therefore the appeal is allowed.
The appellant is granted bail in Crime No.90/2021 of
Hassan Women police station which is now pending in
Spl.C.No.404/2021 on the file of Additional District and
Sessions Judge, FTSC-1, at Hassan subject to the following
conditions:
(i) The appellant shall execute personal bond
in a sum of Rs.25,000/-(Rupees twenty five
Thousand only) and furnish two sureties in
CRL.A.No.143/2022
the like sum to the satisfaction of the trial
Court for his appearance before the Court;
(ii) He shall appear before the Court as and
when required for the trial; &
(iii) He shall not tamper the prosecution
witnesses in any manner.
Sd/-
JUDGE
PKN
