Karnataka High Court
Shri. Nishant S/O. Pandurang ... vs The State Of Karnataka on 18 July, 2023
Bench: V.Srishananda
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NC: 2023:KHC-D:7389
CRL.P No. 101373 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 101373 OF 2023
BETWEEN:
SHRI. NISHANT S/O. PANDURANG BHOSALE,
AGE: 23 YEARS, OCC: COOLIE,
R/O: SIDDEWADI, TQ: ATHANI,
DIST: BELAGAVI -591304.
...PETITIONER
(BY MRS. RANKITA ALAGAWADI, REPRESENTS
SRI. CHETAN PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH ATHANI POLICE STATION,
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD -580001.
CHANDRASHEKAR
LAXMAN
KATTIMANI
2. SMT. ASHWIN W/O. JYOTIBA SABAKALE,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
Digitally signed by
CHANDRASHEKAR R/O: SIDDEWADI, TQ: ATHANI,
LAXMAN
KATTIMANI DIST: BELAGAVI -591304.
Date: 2023.07.21
13:19:48 -0700 ...RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1
NOTICE TO R2 IS SERVED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C. SEEKING TO ALLOW THE PETITION AND RELEASE
THE PETITIONER/ACCUSED NO.1 ON REGULAR BAIL IN CRIME
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NC: 2023:KHC-D:7389
CRL.P No. 101373 of 2023
NO. 392/2023 OF ATHANI POLICE STATION, NOW REGISTERED
AS SPL. CASE NO. 56/2023 PENDING ON THE FILE OF ADDL.
DISTRICT AND SESSIONS JUDGE FTSC-I BELAGAVI FOR THE
ALLEGED OFFENCES P/U/SEC. 344, 366(A), 376(2)(N) AND
376(2)(F) OF THE IPC 1860 AND SECTIONS 4, 5(L) AND 6 OF
THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT,
2012.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Smt. Ranjita Alagawad for Shri. Chetan
Patil, learned counsel for the petitioner and Smt.
Girija S. Hiremath, learned High Court G overnment
Pleader for the respondent No.1-State. Secon d
respondent though served remained absent.
2. The brief facts of the case are as under:-
Mother of the victim girl Smt. Ashwini Sabakale
has lod ged a complaint with Athani P olice on
03. 12.2022 w hich was registered in Crime
No.392/2022 initially for the offen ce punishable
under Section 363 of IPC.
3. Gist of the complaint averments reveal
that the victim girl aged 16 years left Siddewadi
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CRL.P No. 101373 of 2023
village, on 02.12.2022 at about 8.00 p.m. and did
not retur n home. Efforts made by the mother of the
victim girl and her relatives to search for the victim
girl went in vain and ultimately they lodged the
complaint with the police on 03.12.2022. Police
after registering the case, investigated the matter
and during the course of inv estigation, victim girl
was traced and her statement was recorded. Based
on her statement, the offences punishable under
Sections 376(2)(n), 376(2)(f) of IPC and Sections 4
and 5(l) of the POCSO Act were also inv oked. The
investigating agency inter alia arrested the
petitioner and sent him to judicial custody.
4. The attempt made by the petition er to
obtain an order of grant of bail is turned down by
the learned Special Judge by order dated 12.05.2023
in Criminal Mis cellaneous No.427/2023.
5. Police also filed the charg e sheet against
the petitioner for the aforesaid offences. Thereafter,
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CRL.P No. 101373 of 2023
the petitioner is before this Cou rt seeking for g rant
of bail.
6. Reiterating the grounds urged in the
petition, learned counsel for the petitioner
vehemently contended that the victim girl on her
volition eloped with the petitioner herein and on
their volition, they had the physical relationship in
differ ent places and ther e was n o resistance offered
by the victim girl and therefore, no in gredients to
attract the offences alleged against the petitioner is
made out by the prosecuti on prima facie and sought
for grant of bail.
7. Per contra, lear ned High Court Government
Pleader opposes the bail grounds by contending that
the age of the victim girl being 16 years, her
con sent if any for the phy sical relations hip the
petitioner had with the victim girl is immaterial in
view of the pr inciples of law enunciated in the
judgment of th e Hon'ble Apex Court in the case of
Indepe nde nt T hought V/ s Uni on of I nd ia and
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CRL.P No. 101373 of 2023
anot he r reported in (201 7) 10 SCC 8 00 and
therefore, sought for dismissal of the bail p etition.
8. In view of the rival contentions of the
parties, this Court perused the material on record
meticulously.
9. On such perusal of the material on record,
it is crystal clear that the age of the victim girl is 16
years. Acc ording to the definition of the child under
the POCSO Act, any person who is under the ag e of
18 years is a child. Accordi ngly , the consent if any
that has been alleged to be there in the incident is
not a legal consent and therefore the same c annot
be considered for the purpose of finding ou t the
merits in the grounds urged in the petition.
10. Further, this Court is of the considered
opinion that since the petitioner himsel f has stated
that the physical relationship i s a consensual act
between the petitioner and the victim girl, following
the dictu m of the Hon'ble Apex Court in the case of
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CRL.P No. 101373 of 2023
Indepe nde nt T hought V/ s Uni on of I ndi a and
anot he r reported in (2 01 7) 10 SCC 8 00 , the grounds
urged in the petition are hardly sufficient to
admitti ng him on bail.
11. It is needless to empha sis that it is always
open for the petitioner to seek for grant of bail with
a successive bail request, if there is a positive
changed circumstance in the ca se of petitioner
esp ecially after the examination of the victim girl.
12. Reserving such liberty for the petitioner,
following order is passed.
ORDE R
The p etition is dismissed.
Sd/-
JUDGE
