SURESH K. v. STATE OF CHINTAMANI RURAL POLICE STATION

Digitally signed by NANDINI MS Location: High Court of Karnataka

STATE OF CHINTAMANI RURAL POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BUILDING, BENGALURU - 560 001.

MAHENDRA CHILD DEVELOPMENT PLANNING OFFICER CDP OFFICE, SBLT BUILDING NAREPPAKUNTE ROAD NEAR R K NURSING HOME CHINTAMANI TOWN CHIKKABALLAPURA - 563 125.

XXX (BY SMT. M.M. WAHEEDA, HCGP FOR R-1; R-2 IS SERVED; V/O DTD: 10.09.2024 SERVICE OF NOTICE TO R-2 IS HELD SUFFICIENT) …RESPONDENTS - 2 - NC: 2024:KHC:37965 CRL.P No. 4622 of 2024 THIS CRL.P IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.548/2021 REGISTERED BY CHINTAMANI RURAL POLICE STATION, CHIKKABALLAPURA FOR THE OFFENCE P/U/S 3(a), 4(2), 6 AND 8 OF POCSO ACT AND COMMITTED TO THE HONOURABLE FTSC-1, PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA AS SPL.S.C.NO.29/2022. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY ORAL ORDER

1. Accused in Spl.SC.No.29/2022 pending before the Court of Addl. Sessions Judge, Fast Track Court-1, Chikkaballapur, arising out of Crime No.548/2021 registered by Chintamani Rural Police Station, Chickballapura District, for the offences punishable under Section 376(l) IPC and Sections 3(a), 4(2), 6 & 8 of the Prevention of Children from Sexual Offences Act, 2012, is before this Court under Section 439 Cr.PC.

2. Heard the learned Counsel for the petitioner and the learned Counsel for respondent no.1. Respondent no.3 - the natural guardian of the victim who is served in matter, has remained unrepresented before this Court.

3. FIR in Crime No.548/2021 was registered by Chintamani Rural Police Station, Chickballapura District, against unknown - 3 - NC: 2024:KHC:37965 CRL.P No. 4622 of 2024 persons initially for the offences punishable under Sections 376(l) IPC, Sections 3(a), 4(2), 6 & 8 of the POCSO Act, and Section 9 of the Prohibition of Child Marriage Act, 2006, on the basis of the first information dated 21.12.2021 received from respondent no.2 herein. During the course of investigation of the case, petitioner herein who was arrested was produced before the jurisdictional court and remanded to judicial custody on 26.12.2021. Investigation in the case is completed and charge sheet has been filed against him for the aforesaid offences. Bail application filed by the petitioner before the Trial Court in Crl. Misc. No.299/2023 was rejected on 22.06.2023. Therefore, he is before this Court.

Learned Counsel for the petitioner submits that petitioner and the victim are close relatives and their marriage engagement ceremony was already performed. Victim girl who has been examined as PW-2 before the Trial Court has not supported the case of the prosecution. The prosecution has not produced relevant documents to prove the age of the victim in accordance with law. Petitioner is in incarceration ever since

26.12.2021. All the material witnesses in the case have been examined. He, accordingly prays to allow the petition. - 4 - NC: 2024:KHC:37965 CRL.P No. 4622 of 2024

Per contra, learned HCGP has opposed the petition. She submits that victim has given birth to a child and the DNA report would go to show that petitioner is the biological father of the child. Victim was a minor as on the date of registration of FIR. Accordingly, she prays to dismiss the petition.

FIR in Crime No.548/2021 was registered by Chintamani Rural Police Station against unknown persons on the basis of the report received from Child Development Project Officer, Chintamani, on 21.12.2021. In the first information dated

13.12.2021 which was submitted before the police on

21.12.2021, it is mentioned that the first informant had received information that on 16.11.2021, a minor girl had given birth to a child in the hospital at Chintamani. Based on such an information, the first informant had approached the police. During the course of investigation, petitioner was arrested on

26.12.2021. Investigation in the case is completed and charge sheet has been filed.

In the charge sheet, it is alleged that petitioner is the relative of the victim girl and with a promise of marrying her, he had sexual intercourse with her in his house and as a result, - 5 - NC: 2024:KHC:37965 CRL.P No. 4622 of 2024 she got pregnant and had given birth to a girl child. According to the prosecution, the victim was aged about 15 years and her date of birth as per her school records is 25.10.2007.

The victim has been examined before the Trial Court as PW-2 and during her examination-in-chief, she has stated that her date of birth is 25.10.2004 and the victim has stated that she has studied upto 10th Standard and her date of birth mentioned in the school records is not correct. PW-2 has been treated as hostile witness and was cross-examined by the Public Prosecutor. Even in her cross-examination, she has stated that her date of birth mentioned in the school records is not correct.

For the purpose of convicting the accused for the offences punishable under the provisions of the POCSO Act, the prosecution is primarily required to prove that the victim is a minor. For the said purpose, they are required to produce documentary evidence as provided under law. The law in this regard has been laid down by the Hon'ble Supreme Court in the case of P.YUVAPRAKASH VS STATE REP. BY INSPECTOR OF POLICE - 2023 SCC OnLine 846. - 6 - NC: 2024:KHC:37965 CRL.P No. 4622 of 2024

Considering the fact that the petitioner is in custody from

The petition is allowed. The petitioner is directed to be enlarged on bail in Spl.SC.No.29/2022 pending before the Court of Addl. Sessions Judge, Fast Track Court-1, Chikkaballapur, arising out of Crime No.548/2021 registered by Chintamani Rural Police Station, Chickballapura District, for the offences punishable under Section 376(l) IPC and Sections 3(a), 4(2), 6 & 8 of the Prevention of Children from Sexual Offences Act, 2012, subject to the following conditions: a) Petitioner shall execute personal bond for a sum of Rs.1,00,000/- with two sureties for the like sum, to the satisfaction of the jurisdictional Court; b) The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless - 7 - NC: 2024:KHC:37965 CRL.P No. 4622 of 2024 the Trial Court exempts his appearance for valid reasons; c) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses; d) The petitioner shall not involve in similar offences in future; e) The petitioner shall not jurisdiction of the Trial Court without permission of the said Court until the case registered against him is disposed off. SD/- (S VISHWAJITH SHETTY) JUDGE KK