'Sexual Acts Committed With Minor After Marriage': Karnataka High Court Grants Bail To POCSO Accused

A single judge bench of Justice H P Sandesh allowing the bail petition filed by Syed Shabaj said,

"No doubt, the medical report also supports the case of the prosecution that hymen is not intact, but the fact is that she was subjected to sexual act after the marriage...Hence, taking note of the peculiar facts and circumstances of the case and that too, after the marriage itself this petitioner subjected her for sexual act, it is a fit case to exercise the powers under Section 439 of Cr.P.C."

Following which the bench granted bail to the accused on it executing a personal bond for a sum of Rs.2,00,000 with two sureties for the like-sum to the satisfaction of the jurisdictional Court.

As per the prosecution case, the petitioner subjected the victim for sexual act knowing fully well that she is aged about 15 years in a lodge. Hence, the police had invoked the offence under Sections 363, 366-A and 376 of IPC, Sections 5(L) and 6 of POCSO Act and Section 4 of Child Marriage Act.

The petitioners counsel submitted that the statement made by the victim is clear that she fell in love with the petitioner. Hence, both of them left the house thinking that their parents will not give consent since they belong to different religions and stayed in a room. Thereafter, it was submitted that the two married each other in a Temple and it is thereafter that the petitioner subjected her for sexual act. Since both of them are married, at the most, it attracts the offence under Sections 9 and 10 of the Prohibition of Child Marriage Act, it was argued.

Having considered the material on record, the Court noted that the victim eloped with the petitioner but, though they left the house on 15.10.2021 itself, no allegation is made that before the marriage, she was subjected to sexual act.

Thus, taking note of the peculiar facts and circumstances of the case where the petitioner had subjected her for sexual act after marriage, the Court said it is a fit case to exercise the powers under Section 439 of CrPC.

It directed the accused shall not indulge in tampering with the prosecution witnesses. He shall appear before the jurisdictional Court on all the future hearing dates, unless exempted by the Court for any genuine cause. He shall not leave the jurisdiction of the Trial Court without prior permission.

Case Title: SYED SHABAJ v.  SMT. PREMA & ANR

Case No: CRIMINAL PETITION NO. 3422/2022

Citation: 2022 LiveLaw (Kar) 256

Date of Order: 1ST DAY OF JULY, 2022

Appearance: Advocate JAGADEESHA H for petitioner; HCGP MAHESH SHETTY for respondent

Click Here To Read/Download Order