Prashanth vs State By Subramanyanagar Police

K.S. Mudagal, J

Heard the petitioner's Counsel. Office objections are overruled.

This is third successive petition of the petitioner seeking bail in Crime No.187/2019 of Subramanyanagar police station which is now pending in

Special C.C.No.64/2020 on the file of LIV Additional City Civil & Sessions Judge, Bengaluru.

The charge against the petitioner is that on 08.11.2019 he kidnapped the victim girl CW.2 aged 17 years from the lawful custody of her parents,

kept her captive in the house of CW.6 at Kanjenahalli Village of Chikballapura Taluk from 08.11.2019 to 20.11.2019. It is further alleged that during

such stay in the said house, he committed repetitive penetrative sexual assault on her, thereby committed the offences punishable under Sections 363,

366 and 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short).

The petitioner's earlier petition in Crl.P.No.8853/2019 was rejected on 17.03.2020 on merits. He filed Crl.P.No.6008/2020 and withdrew that on

30.11.2020. Referring to the statement of the victim girl in the charge sheet, learned Counsel for the petitioner submits that she accompanied the

petitioner voluntary.

The order in Crl.P.No.8853/2019 shows that the said ground was considered. The said order further shows that it was even contended that the

alleged sexual relationship between CW.2 and the petitioner was consensual one. Considering all such contentions, this Court held that minor's consent

is no consent in the eye of law.

Learned Counsel for the petitioner relies upon the following judgments to persuade this Court to press his claim for bail.

(i) Dataram Singh vs. State of Uttar Pradesh1

(ii) Sri Somappa @ Swamy vs. State of Karnataka2

(iii) Jayaram @ Appu v. The State of Karnataka3 (2018) 3 SCC 22 Crl.A.No.100090/2017 DD 24.07.2018 Crl.P.No.8678/2019 DD 02.03.2020

In Dataram Singh's case referred to supra the offences involved were one under Sections 419, 420, 406 and 506 of IPC. In that context, the

Hon'ble Supreme Court held that until the charge is proved the accused has the benefit of presumption of innocence. But Section 29 of the POCSO

Act a special legislation for the welfare of the minor children states that the moment the accused is prosecuted for the offences under the said Act, it

shall be presumed that he has committed or abetted or attempted to commit the offence.

Similarly, the judgment in Sri Somappa @ Swamy's arises out of order of conviction and sentence passed by the trial Court on full fledged trial. On

re-appreciation of the evidence, this Court acquitted the accused. The judgment in Jayaram @ Appu's case shows that in that case, the victim had

given statement before the judicial Magistrate exonerating the accused. Therefore the judgments relied upon by learned Counsel for the petitioner

cannot be justifiably applied to the facts of the case on hand.

Learned Counsel for the petitioner contends that the petitioner's mother is suffering from medical condition and on that ground the petitioner is

entitled for bail. Neither such ground is made out in the petition nor any material is produced to substantiate the same. Therefore the petition is

dismissed.