Mohmadrafiq vs The State Of Karnataka & Ors.

Heard the learned counsel for the petitioner and learned HCGP for respondent-State.

Notice to respondent Nos.2 and 3 is served. The victim is present before the court.

Petitioner/accused No.1 has filed this petition under Section 483 of the Bharatiya Nyaya Sanhita, 2023 (for short ‘BNS 2023) to enlarge him on bail in connection with Kundgol Police Station in Crime No. 115 of 2026 for the offences punishable under Sections 115(2), 329(4) r/w Section 3(5) of BNS 2023 and Section 8 of POCSO Act, 2012 on the file of learned II Additional District and Sessions Judge, Dharwad, the Special Court for trial of offences under the POCSO Act.

In nutshell, the case of the prosecution is that, the victim-minor girl is aged about 15 years. On 21.07.2026, at 08.00 a.m., the mother of victim had been to her coolie work. The father of victim was sleeping outside the house on a katta and her brother was sleeping in the room. She was working at the kitchen. On the same day, at about 9.30 a.m., accused No.1 by tress passing into her house, entered the kitchen area, put his hands on her shoulder and hugged her tightly, kissed her and also put his hand on her chest. When the victim shouted loudly, her father and brother and neighbours came there, dragged accused No.1 outside the house, threatened him to call his elders. At that time, accused No.1 assaulted the victim with his hands. Thereafter, the relative of accused No.1, i.e., accused No.2, came to the spot and both of them assaulted the father and brother of the victim. Hence, a complaint has been lodged before the respondent police, by the defacto-complainant.

During the course of investigation, accused No.1 was arrested and remanded to judicial custody.

Learned counsel for the petitioner vehemently argued and contented that the petitioner is innocent and he has not committed any offence. There is delay in lodging the complaint and the complainant is politically motivated in order to avenge against the accused. It is contented that, the offences alleged are not punishable with death or imprisonment for life. The petitioner has no criminal antecedents. The petitioner is aged about 37 years and is the sole bread earner of his family having tender aged children. He is ready to abide by any conditions to be imposed by this court. Hence, he prayed to allow the petition.

Per contra, learned HCGP orally submitted objection contending that there is prima facie case against accused No.1. The victim girl is minor aged about 17 years and there is allegation of sexual assault as physical contract with a minor girl with sexual intact by accused No.1. If he is enlarged on bail, he may tamper the prosecution witnesses and hamper the trial. Hence, learned counsel prayed for dismissal of the petition.

As per the material available on record, the allegation against accused No.1 is that he trespassed into the house of the victim while she was in the kitchen, sexually harassed her by touching her body and when she shouted, her father and brother came to the spot and when they brought accused No.1 outside the house, accused No.1 assaulted the victim and thereafter, both accused Nos.1 and 2 assaulted the father and brother of the victim. On perusal of the statement of the victim under Section 164 of Cr.P.C before the Magistrate, the victim has not made any serious allegation against the petitioner/accused No.1 alleging that he committed sexual act with her. It appears that the victim has not stated against accused No.1 regarding any serious commission of offence. Thus, it shows that there is no major allegation against accused No.1. At this stage, there is no prima facie material against accused No.1 with regard to any serious offence touching the provisions of POCSO Act, more particularly, Section 4 and 6 of the POCSO Act.

Considering the nature and gravity of the offence, position and status of the petitioner with reference to the victim and witness, it is a fit case to grant bail to the petitioner. Accordingly, this court proceed to pass the following:

ii) The petitioner shall appear before the jurisdictional police station on first of every month between 10.00 a.m to 5.00 p.m. for a period of six months or till filing of the charge sheet, whichever is earlier.

iii) The petitioner shall appear before the special court on all the dates of hearing without fail.

iv) Violation of any of the conditions imposed by this court, liberty is reserved to the prosecution to file a necessary application for cancellation of bail.