Karnataka High Court

Sri. B. V. Hemanth @ Hanumantha vs The State Of Karnataka on 12 May, 2022

Bench: M.Nagaprasanna

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

             DATED THIS THE 12TH DAY OF MAY, 2022

                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.4166 OF 2022

BETWEEN:

SRI B.V.HEMANTH @ HANUMANTHA
S/O VISHWANATH
AGED ABOUT 23 YEARS
R/O BADARIKOPPALU VILLAGE
NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
                                                  ... PETITIONER

(BY SMT.KUSUMA M., ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       REP. BY SPP OF HIGH COURT OF KARNATAKA
       THE STATION HOUSE OFFICER
       GIRINAGAR POLICE STATION
       BENGALURU 560 085.

2.     SMT.ASHARANI
       W/O KUMARA
       AGED ABOUT 35 YEARS
       #52, 2ND MAIN ROAD,
       HRUSHIKESHINAGAR
       HOSAKEREHALLI
       BANASHANKARI
       3RD PHASE, BENGALURU - 560 085.
                                            ... RESPONDENTS
                              2



(BY SRI VINAYAKA V.S., HCGP FOR R1;
    SRI LOKESH B.N., ADVOCATE FOR R2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF
CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.188/2021 OF GIRINAGAR P.S., BENGALURU FOR THE
OFFENCE P/U/S.363, 376 OF IPC AND SEC.4, 5(L) AND 6 OF
POCSO ACT 2012 AND U/S.9 OF PROHIBITION OF CHILD
MARRIAGE ACT 2006 ON THE FILE OF THE CITY CIVIL AND
SESSIONS JUDGE FTSC-1, BENGALURU IN SPL.C.C.NO.29/2022.

     THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

The petitioner is before this Court under Section 439 of the

Cr.P.C. seeking enlargement on bail in respect of Crime No.188

of 2021 registered for offences punishable under Sections 363

and 376 of the IPC, Sections 4, 5(L) and 6 of Protection of

Children from Sexual Offences Act, 2012 and Section 9 of

Prohibition of Child Marriage Act, 2006, which is now pending in

Special C.C.No.29 of 2022 and calling in question the order

dated 23-02-2022, passed by the Additional City Civil and

Sessions Judge, FTSC-III in Criminal Miscellaneous No.1252 of

2022 denying bail to him.

2. Heard Smt. M. Kusuma, learned counsel appearing for

the petitioner, Sri V.S.Vinayaka, learned High Court Government

Pleader appearing for respondent No.1 and Sri B.N. Lokesh,

learned counsel appearing for respondent No.2

3. Brief facts are as follows:-

The mother of the victim - 2nd respondent registers a

complaint initially on 24-10-2021 alleging that her daughter

gone missing. On the missing complaint, a crime is registered in

Crime No.188 of 2021 for offence punishable under Section 363

of the IPC. The petitioner was arrested and is in judicial custody

since 25-10-2021. On the missing complaint, the police

conducted investigation. After completion of investigation, the

Police have filed a charge sheet against the petitioner for

offences punishable under Sections 363 and 376 of the IPC,

Sections 4, 5(L) and 6 of the Protection of Children from Sexual

Office Act, 2012 and Section 9 of the Prohibition of Child

Marriage Act, 2006.

4. It is the case of both the petitioner and the daughter of

the complainant that they were in love for over a year which

could be gathered from the chat on the mobile phone and that

was known to both the families. Difference of opinion between

the parents of the petitioner and the parents of the victim has

led to registration of crime and the petitioner is even now ready

and willing to marry the victim. In the process of they being in

love, the victim/girl also became pregnant and it is the

contention of the petitioner that they used to live together. It is

the family of the victim girl, which registered a complaint that

the victim was missing. It is the further contention of the

petitioner that there is no specific allegation of any overt act

committed by the petitioner. It is during the investigation, the

Police found out about the relationship of the petitioner with the

victim girl who were in love and then registered the afore-quoted

offences against the petitioner. On the Police filing the charge

sheet, the petitioner filed an application before the learned

Sessions Judge in Criminal Miscellaneous No.1252 of 2022

seeking enlargement on bail. This is rejected by the learned

Sessions Judge on the ground that if the petitioner is enlarged

on bail, there is every chance that he may abscond from the

jurisdiction of the Court and hamper court proceedings as also

threaten witnesses or destroy prosecution evidence. The

offences alleged were heinous in nature as he has forcibly

married a minor girl and committed sexual assault on her. On

the said reasoning the learned Sessions Judge rejects the bail,

which drives the petitioner to this Court in the subject petition.

5. The learned counsel appearing for the petitioner would

vehemently argue and contend that the family members of the

petitioner and the 2nd respondent are ready and willing to get the

petitioner and the victim girl married the moment the petitioner

comes out of the prison as admittedly, they are in love for over a

year and it is the love that has led to subsequent events.

6. The learned counsel appearing for the 2nd respondent

would not refute any submissions but would admit the

relationship between the petitioner and the victim girl and also

admit that the families of both the petitioner and the 2nd

respondent are willing to perform the marriage of the petitioner

with the victim girl.

7. However, the learned High Court Government Pleader

would submit that no consideration should be shown only on

the ground that they are getting married as the offence alleged is

a heinous offence, which is punishable for more than ten years.

8. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

9. The afore-quoted facts are not in dispute. A missing

complaint on investigation lands up in a crime for the aforesaid

offences against the petitioner. The petitioner has been in

custody from 25-10-2021 itself that is the date on which missing

complaint was registered and the petitioner was shown to be the

reason for the missing of the victim girl. The Police after

investigation have already filed a charge sheet in the matter.

Both the learned counsel appearing for the petitioner and the 2nd

respondent have submitted that the families are ready to

perform the marriage of the petitioner with the victim girl in the

event the petitioner would be enlarged on bail. Though the

petitioner is alleged of offences, which are without doubt

heinous in nature, the subsequent event of submissions made

by the learned counsel appearing for the petitioner and the 2nd

respondent before the Court reveal that both the petitioner and

the victim girl would be getting married legally, I am of the

considered view that the petitioner in his tender age of 23 years

should be given an opportunity to lead a healthy life after due

marriage as submitted. The view of my in this regard is fortified

by a judgment rendered by a co-ordinate Bench of this Court in

ARUN @ SHEKAR A v. STATE OF KARNATAKA - 2021 (3)

KCCR 2542, wherein this Court considering identical set of facts

has held as follows:

"3. The case of the prosecution is that, one, Amuda, mother of the victim girl, lodged a complaint to the Police on 23-11-2020 alleging that her daughter, who is aged 17 years was studied up to 8th standard, since then her daughter was staying in the house for a period of 5 years, about 2 months

prior to the lodging of the complaint, her daughter was suffering from stomachache, she took the victim girl to the K.C.General Hospital, on going through the medical checkup, the doctor after examining her informed that the victim girl is pregnant. On enquiring her, she disclosed the fact that she fell in love with the accused, thereafter she made a phone call to the accused to enquire about this matter, but accused's phone was switched off. After registering the case, the police have apprehended the petitioner on 20-11-2020. The petitioner was remanded to judicial custody. The petitioner approached the Sessions Court for granting bail, which came to be rejected. Hence, this petition.

4. On perusal of the records as well as statement of victim girl under Section 164 of Cr.P.C. goes to show that victim girl fell in love with the petitioner and they had sexual affairs between them and as a result of which, she became pregnant. Later the said fact is reported to her mother when she was suffering from stomach ache and the accused is responsible for the pregnancy. When the mother of the accused enquired about this aspect of the matter over phone, the accused switched off his phone. It is the case of the prosecution that the petitioner and victim girl both fell in love and thereafter the accused had sexual relationship with the victim girl, due to which, the victim girl because pregnant. After knowing the fact that the victim girl became pregnant, the accused left her and cheated her without marrying her.

5. Learned counsel for the petitioner submits that victim girl has completed 18 years, for the purpose of lodging the complaint, the mother of the victim girl shown the age of the victim girl as 17

years. Learned counsel further contended that there are no external injuries to the victim and it clearly indicates that the sexual act is not against her will. Learned counsel also submits that in the statement recorded under Section 164 of Cr.P.C. there is no averment that sexual act was against her will. Hence, in view of the completion of the investigation and charge sheet has been filed partially, there is no need to have the custodial trial. Further DNA test is yet to receive by the police. Though the statement under Section 164 Cr.P.C. by the Magistrate through the police was on 31-01-2021, but the charge sheet was filed on 26-01-2021.

6. Upon hearing the arguments and perusal of the records, goes to show that, the victim girl already completed 18 years and she fell in love with the accused- petitioner, as a result, she became pregnant and this fact was not disclosed to her mother until she had a stomach ache and she had also gave birth to a male child. Moreover, the petitioner is ready to marry the victim girl and family of the victim girl is also ready to give the victim girl to petitioner for marriage.

7. Looking into the facts and circumstances, without expressing any opinion on the merits of the case, if the petitioner is granted bail by imposing certain conditions, no prejudice would be caused to the case of the prosecution. ....."

In the light of peculiarity in facts and the judgment

rendered by the co-ordinate Bench as also the submissions

made by both the learned counsel for the petitioner and the 2nd

respondent - mother of the victim girl about performance of

marriage between the two loving hearts, I am of the considered

view that the petitioner is entitled to be enlarged on bail

imposing certain conditions.

10. For the aforesaid reasons, I pass the following:

ORDER

Criminal petition is allowed. The trial Court is directed to

release the petitioner/accused on bail in Crime No.188 of 2021

registered by Girinagar Police Station, Bengaluru for the

aforesaid offences, subject to the following conditions:

(i) Petitioner shall execute a personal bond in a sum of Rs.1,00,000/- (Rupees one lakh only) with two sureties for the like sum to the satisfaction of the trial Court.