Victim’s conduct not above suspicion: Karnataka High Court grants relief to hockey player Varun Kumar in POCSO case

The Karnataka High Court recently granted anticipatory bail to Arjuna awardee and national hockey player Varun Kumar in a case registered under the Protection of Children from Sexual Offences Act (POCSO Act) [Varun Kumar vs State of Karnataka]..Justice Rajendra Badamikar said the conduct of the victim in the case was not above suspicion and her real intention in prosecuting the matter was not at all forthcoming.."When the parties continued their consensual physical relationship for a considerable long time, then the allegation of rape does not carry much importance. What is the real intention of the complainant-victim in prosecuting this matter is not at all forthcoming ... The conduct of the victim is also not above the suspicion and they having strong connection in the State machinery being influential persons, it is difficult to accept the version of the prosecution that the victim was apprehending something or some fear from the petitioner (Kumar)," the April 18 order said. .Kumar, who is also an officer with the Punjab Police, was booked in the rape case by the Bengaluru Police earlier this year on a volleyball player’s complaint. The victim claimed that Kumar had repeatedly raped her when she was 17 years old under the guise of uploading intimate pictures taken by him on social media.However, the counsel representing Kumar argued that it was a consensual relationship from 2021 to 2023 and that the victim was an adult at the time. It was also submitted that the victim belonged to a highly influential family in Telangana while Kumar hailed from a farmer’s family. .On the contrary, the State said the first incident had taken place when the victim was a minor. It was also submitted that the mobile phone of the accused was required to be seized.Considering the submissions, the Court at the outset noted that the victim and the accused developed intimacy for the first time in 2019 and it continued for four years. “If the date of birth of the victim is taken into consideration, she was 17½ years when the first incident has taken place and at that time she was capable of understanding the things. Apart from that, subsequently the parties maintained the relationship even after the victim attaining the age of majority till 14.05.2023,” the Court said..It added that the victim had earlier never complained regarding her being enticed or exploited by Kumar. Further taking note of the allegations that the victim and accused established physical relationship at different places, the Court said,“This itself clearly discloses that, both the parties were having a love affair and both of them were sports persons and they developed relationship with each other and now after four years, allegations are made regarding the offences under the provisions of the POCSO Act, which appears to be very strange.”The Court also noted that the parties had visited each other's families and initially there was no objection to their relationship. .Moreover, the Court opined that since the victim’s family was highly influential, the question of Kumar blackmailing her under the guise of certain photographs would not hold water. The Court further rejected arguments that the accused was evading arrest. The Court found that the investigating agency had not placed any evidence to show that any attempt had been made to serve a notice to Kumar under Section 41 of the Code of Criminal Procedure. With regard to the argument that the police needed to recover Kumar's mobile, the Court said that it was empowered to order the accused to deposit the same. .The Court also reasoned that there was no material evidence to show that the relationship between the victim and accused was developed under any false promise of marriage. Considering the facts and circumstances as well as the delay in lodging the criminal complaint, the Court said it was evident that the relationship between the parties had broken for various other reasons and that the same had resulted in the litigation. “Merely because he is a National Hockey Player or he is about to get a job or he was awarded with the President Medal, cannot be termed as a influential person, but whatever the achievement made by him is because of his hard work and that cannot be termed as an influence,” the Court said further..Observing that the right to freedom is a fundamental right and cannot be curtailed merely on the basis of allegations, the Court said that the matter requires a detailed trial. If the accused is found guilty, the law will take it own course, the Court added. However, pre-trial detention is unwarranted as it will be a serious stigma on the character of a person, the Court said.It thus granted Kumar anticipatory bail and asked him to make himself available for questioning by the police whenever called for during the investigation.“The petitioner shall deposit his mobile phone with the Investigating Officer on the date of his surrender before the Investigating Officer for the purpose of investigation and the Investigating Officer shall take appropriate steps regarding testing mobile or recovery of the data etc,” the Court ordered further..Advocates Arjun Syal, Mehak Jaggi, Sivarama Krishnan MS and Sindhu V represented the petitioner (Varun Kumar).Advocate K Nageshwarappa represented the State..[Read Order]