The Karnataka High Court while denying bail to a Muslim man accused of raping a minor Muslim girl has observed that POCSO and IPC are substantiate acts and shall prevail over personal law.

Justice Rajendra Badamikar further noted that the under the guise of personal law the accused-petitioner cannot seek regular bail.

A criminal petition was instituted by the petitioner-accused under Section 439 CrPC for enlarging him on bail. The petitioner was accused under Sections 363, 342, 354D, 376(2)(n), 376(3) of IPC, and Sections 6,12, and 17 of the POCSO Act, 2012.

In this case, the petitioner knowing that the victim was a minor had induced her and had taken her to a lodge where he stayed along with her for a day and committed sexual assault on her twice on that night. After she came back the next day, she narrated the entire incident to her mother. This was followed by the lodging of a complaint against the petitioner and a crime was registered.

Under Section 161 CrPC, it was alleged that the victim had voluntarily accompanied the petitioner and she had a sexual relationship with the petitioner. Based on these aspects the Investigating Officer has incorporated the provisions of 376(2)(n), 354D, and Sections 6 and 12 of the POCSO Act.

Later the victim was also produced before the Magistrate wherein, she has stated under Section 164 CrPC asserting that the petitioner has forcibly and by enticing taken her to Mysore and there he committed Penetrated sexual assault.

After conducting an investigation the Investigation Officer is said to have submitted the charge sheet. The petitioner was arrested and remanded to judicial custody. He had moved a regular bail petition before the Sessions Judge and his bail petition came to be rejected. Aggrieved, he approached the High Court.

Advocate Ravikumar N.R. appeared for the Petitioner while HCGP Rashmi Jadhav appeared for the Respondents before the Court.

The Counsel for the Petitioner had argued before the Court that the age of puberty is required to be taken note of as the parties are Mohammedans.

Referring to such a contention, the Court observed-

"But it is to be noted here that the POSCO Act and IPC are substantiate acts and they prevail over personal law and under the guise of personal law the petitioner cannot seek regular bail."

Further, the Court noted that the statement of the victim under Section 164 CrPC establishes that she was forced to have a sexual relationship and that too after abducting her from the custody of the lawful guardian.

In this context, the Court held –

"Under these circumstances, there is prima-facie material evidence against the present petitioner and the medical evidence further discloses that the hymen was not intact and it establishes that there is a sexual relationship. No doubt Investigation is completed and the charge sheet has been laid down but mere submission of the charge sheet does not give any right to the present petitioner to claim bail as a matter of right."

Thus, the Court held that the petition is devoid of merits and accordingly rejected it.

Cause Title – Farddin v. State of Women Police Station & Ors.

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