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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 18TH DAY OF JUNE, 2020

BEFORE

THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

CRIMINAL PETITION NO. 2577 OF 2020

BETWEEN:

GOUTHAM
SON OF MAHADEV
AGED ABOUT 19 YEARS,
RESIDING AT KAMENAHALLI,
KASABA HOBLI,
KORATAGERE TALUK
TUMKUR – 572 101.

... PETITIONER
(BY SRI. SANTOSH S.NAGARALE, ADVOCATE)

AND:

THE STATE OF KARNATAKA,

BY SHO,
KORATEGERE POLICE
TUMAKURU – 572 101.
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT COMPLEX,
BENGALURU – 560 001.
...RESPONDENT
(BY SRI. SHOWRI H.R., H.C.G.P)

THIS CRIMINAL PETITION IS FILED UNDER SECTION

439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL
IN CR.NO.88/2019 OF KORATAGERE POLICE STATION.,
TUMKURU DISTRICT FOR THE OFFENCE PUNISHABLE
UNDER SECTION 6 OF POCSO ACT AND SEC.376, 312 OF IPC
AND ETC.,

THIS PETITION COMING ON FOR ORDERS THROUGH

VIDEO CONFERENCE THIS DAY, THE COURT MADE THE
FOLLOWING:-
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ORDER

Petitioner being the accused in Crime No.88/2019

registered by the Koratagere Police for offences punishable

u/s. 376 IPC, 1860 & Sec.6 of POSCO Act has presented

this petition under section 439 of Cr.P.C., 1973, for

seeking his enlargement from judicial custody by way of

bail, his petition in Crl. Misc. 1112/2019 for the same

purpose having been negatived by the learned III Addl.

District & Sessions Judge at Tumakuru vide Order dated

30.11.2019.

2. After service of notice, the State has entered

appearance through the Addl. Govt. Advocate.

3. Learned counsel for the petitioner submits

that petitioner is innocent of the allegations of the

commission of the offences; he is a law abiding citizen,

having roots in the society; he has been falsely implicated;

he has been in custody since a year or so; the

complainant falsely claims to be of 17 years of age when

she is a major; petitioner is ready and willing to abide by

all the conditions that may be imposed by this Court; he

assures complete co-operation in the trial; it is not

advisable to keep the young petitioner within the four

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corners of the jail walls during the COVID-19 pandemic; so

arguing he seeks grant of bail.

4. Learned Addl. Govt. Advocate vehemently

opposes the prayer for grant of bail contending that grant

of bail is a matter of discretion which needs to be exercised

keeping in view the laudable object of the Act; apparently,

the victim is a 17 year young girl and therefore is a minor

going by the school certificate; she having been

impregnated by the petitioner underwent medical

termination of pregnancy; there is sufficient material to

implicate the petitioner; the offences are grave in nature

and they attract life imprisonment, if proved; enlarging

such offenders on bail will have its own imprecation in

society; the claim of the petitioner in the circumstances

runs counter to the decision of the Apex Court in

MUKARRAB & OTHERS vs. STATE OF U.P. 2017 (2)

ACC 210; so contending, he seeks dismissal of the

petition.

5. Having heard the learned counsel for the

parties and having perused the petition/police papers, this

Court is inclined to grant bail to the petitioner for the

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following reasons and subject to the conditions stipulated

hereunder:

(a) petitioner is a young boy of 19 years hailing from

a rural background; the victim girl is stated to be 17 year

old; there were marriage talks between the petitioner and

the victim; even going by the statement of the victim to the

police u/s.161 & 164 of Cr.P.C., the petitioner himself

brought the pills for termination of pregnancy, days after

the incident; a ring of doubt arises as to force being

employed by the petitioner for the commissioning of the

offence;

(b) true it is, in view of 2013 amendment to

Sec.375 even the consent of a girl below 18 years of age

pales into insignificance since the earlier lesser age limit of

16 years has been done away with; in the very decision

supra cited by the learned AGA, the Apex Court has

observed that even the opinion of the Medical Board as to

the determination of age of a person has a variable of plus

or minus two years; school records too cannot be taken as

conclusive proof of age, especially when the family of the

victim hails from rural area or the like; the Apex Court

also states that the age determination in border line cases

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cannot be easily done, the presumptive value of school

records notwithstanding; all this becomes relevant since

the police claim the victim to be of 17 years at the time of

commission of the offence;

(c) now that the investigation having been completed,

the Charge Sheet has been filed; thus there is no need for

the police for the custodial interrogation of the petitioner;

even otherwise, he undertakes to appear before and co-

operate with further investigation, if police so desire; the

petitioner has been in judicial custody for about a year or

so; there is growing COVID-19 pandemic infection which

cannot be lost sight of since the jails are bit over crowded

and maintaining social distance is not that easy; and,

(d) the oft quoted maxim “bail is a rule and jail is an

exception” also cannot be brushed aside even in cases like

this; for a young mind the jail walls are cruel and Courts

cannot be callous to such an unpleasant truth; added to

this, the offence does not attract death penalty; even the

prescribed penalty of life imprisonment is a matter of

discretion vested in the trial Judge; as already mentioned

above, petitioner is aged 19 years; he undertakes to abide

by all the conditions that may be imposed by this Court.

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In the above circumstances, this petition succeeds

and petitioner having been admitted to bail shall be
enlarged from custody subject to the following conditions:

(i) the petitioner shall execute a Personal

Bond for a sum of
Rs.1,00,000/- (Rupees One lakh) only with two
sureties for the like-sum each, to the
satisfaction of the learned trial Judge;

(ii) the petitioner shall not indulge in any act

prejudicial to further investigation, if any, or to
the free & fair trial of the offences alleged, nor
shall he intimidate or influence the prosecution
witnesses, victim or any person related to the
victim;

(iii) the petitioner shall participate in the trial

proceedings in the court below on regular basis
and shall not remain absent without leave of the
said court; nor shall he leave the jurisdictional
limits of the trial Court without its prior
permission;

(v) the petitioner shall mark his attendance

before the jurisdictional police station every
second Saturday of the calendar month between
9.00 a.m. and 3.00 p.m., till after the disposal of
the criminal case; and,

(vi) it is open to the respondent-Police or to the

victim or to the parents of the victim to seek
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revocation of bail if petitioner commits breach of

any of the above conditions or any other offence.

Sd/-
JUDGE

DS