Karnataka High Court
Sri Manu H vs The State Of Karnataka on 7 March, 2022
Bench: V Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7th DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL PETITION No. 83/2022
BETWEEN:
Sri. Manu H
S/o Manjunatha H.D.,
Aged about 23 years,
R/o Hunasekattekoppalu,
Chinakuruli Hobli,
Pandavapura Taluk,
Mandya District-571401. ...Petitioner
(By Sri. Giri Kumar S.V., Advocate)
AND:
The State of Karnataka,
By K.R.Sagara Police Station,
Srirangapatna Circle,
Mandya District-571401.
Rep. by State Public Prosecutor,
Office of the State Public Prosecutor,
High Court Building,
Bangalore - 560 001. ... Respondent
(By Sri. S.Vishwamurthy., HCGP)
This Criminal Petition is filed under Section 438 of
Cr.P.C., praying to enlarge the petitioner on bail in the event
of his arrest in Cr.No.43/2021 of K.R.Sagar police station,
Mandya District for the offences punishable under Sections
2
366, 376(2)(n), 354(D), 363 read with Section 34 of IPC and
Sections 6 and 12 of POCSO Act and Section 9 of Prohibition
of Child Marriage Act
This Criminal Petition coming on for Orders, this day,
the Court made the following:
ORDER
Heard Sri. Giri Kumar S.V., learned counsel for the
petitioner and Sri. S.Vishwamurthy, learned HCGP for the
respondent-State and perused the records.
2. Present petition is filed under Section 438 of Cr.P.C.
with the following prayer:
"Wherefore, the petitioner most humbly
prays that this Hon'ble Court may be pleased
to grant anticipatory bail and direct the
respondent No.1-police to enlarge him on bail,
in the event of his arrest in Cr.No.43/2021
registered by respondent No.1-police station
and registered as Spl. Case No.115/2021
against the Petitioner for the offences
registered under Sections 366, 376(2)(n),
354(D), 363 read with Section 34 of IPC and
Sections 6 and 12 of POCSO Act and Section 9
of Prohibition of Child Marriage Act, in the
interest of justice and equity".
3. The brief facts of the case are as under:
The complaint came to be filed by Smt. Lakhmi wife of
Venkateshachari contending that her daughter aged about 15
years 5 months has been eloped by the accused herein on
24.02.2021 and on 03.03.2021 at about 6.00 am, he married
her and had sexual intercourse with her. The victim girl has
been traced by the police and she was produced before the
Jurisdictional Magistrate. Her statement was recorded by the
Jurisdictional Magistrate under Section 164 of Cr.P.C. While
making statement before the Jurisdictional Magistrate, the
victim girl has narrated that, she had a love affair with the
accused and her parents were looking for a separate alliance
to her. In order to marry the accused, she went with the
accused from hind side of the door and eloped her on the
scooter and thereafter, he took her to Channarayapattana
and kept her in a room and married her and thereafter, they
had physical relationship on every day. She has stated that
she become one and half month pregnant. Based on the
same, the police filed charge sheet against the accused for
the offences punishable under Sections 366, 376(2)(n),
354(D), 363 read with Section 34 of IPC and Sections 6 and
12 of POCSO Act and Section 9 of Prohibition of Child
Marriage Act.
4. The request made by the petitioner seeking grant of
anticipatory bail is turned down by the learned District Judge
in C.Mis.No.1051/2021 by order dated 25.10.2021. Though
FIR dated 28.02.2021 is filed, till today, the petitioner is not
available to the investigation agency. Thereafter, the
petitioner is before this Court seeking grant of anticipatory
bail.
5. Learned counsel for the petitioner vehemently
contended that in view of the love affair that the victim girl
and the petitioner had, which turned down into a marriage in
a Ganapathi temple on 03.03.2021 and thereafter, they lived
like husband and wife and therefore, no offences as alleged
by the prosecution has taken place in the case on hand. He
also pointed out that it is the voluntary act of the victim girl
who have physical relationship with the petitioner and
therefore, there is no material on record which would indicate
that the petitioner had forcible sexual intercourse with the
petitioner and thus, sought for grant of anticipatory bail.
6. Per contra, learned HCGP opposes the bail petition on
the ground that the theory of consent argued by the learned
counsel for the petitioner cannot be countenanced in law. In
the case on hand inasmuch as the victim girl is aged about
15½ years and her consent cannot be treated as a consent in
the eye of law. He also pointed out that from the date of
petition, the petitioner is absconding and absconding charge
sheet came to be filed against the petitioner and therefore,
the petitioner cannot be treated as a law abiding citizen and
sought for dismissal of the claim petition.
7. This Court perused the material on record in the light
of the rival contentions of the parties.
8. Admittedly, the victim girl is aged about 15½ years as
per the complaint averments. Statement made before the
Jurisdictional Magistrate under section 164 Cr.P.C., by the
victim girl reveals that because of the physical relationship
the petitioner had physical relationship with the victim girl
and she had become one and half months' pregnant. From
the date of petition despite best efforts made by the
investigation agency, the petitioner is not available for the
investigation. Therefore, the police were constrained to file
an absconding charge sheet against the accused-petitioner.
9. The effort made by the petitioner to obtain grant of
anticipatory bail though turned down in October 2021 till
today, he has not appeared before the trial Court or before
the investigation agency. Therefore, he cannot be considered
as a law abiding citizen.
10. Further, the consent if any as sought to be argued by
the learned counsel for the petitioner cannot be treated as a
consent in the eye of law. In view of the judgment of the
Hon'ble Apex Court in the case of Independent Thought
Vs. Union of India (2017) 10 SCC 800.
11. Accordingly, this is not a case where this Court can
entertain the request made by the petitioner seeking grant of
anticipatory bail by resorting to the special powers vested in
this Court under section 438 of Cr.P.C. Accordingly, pass the
following:
ORDER
The bail petition is rejected.
Sd/-
JUDGE
JS/-
