Henson Reymond vs State Of Karnataka
2022 Latest Caselaw 10988 Kant

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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,

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

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

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

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.

9. In view of the discussions made above, I pass the

following:

ORDER

The petition is rejected.

Sd/-

JUDGE

MD