Kerala High Court
X vs State Of Kerala on 4 June, 2020
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942
BAIL APPL..NO.3237 OF 2020
CRIME NO.396/2020 OF POTHANIKADU POLICE STATION, ERNAKULAM
DISTRICT
PETITIONER/ACCUSED :
X
BY ADV. SRI.K.R.VINOD
RESPONDENT(S) :
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, KOCHI-682 031.
SRI AJITH MURALI, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
04.06.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.3237 OF 2020 2
ORDER
This application is filed under Section 438 of the Cr.P.C.
2. This application is taken up and heard through Videoconferencing.
3. The petitioner herein is a minor boy aged 17 years. He claims to be studying in the X Standard in a school at Kothamangalam. He has been arrayed as the accused in Crime No.396 of 2020 of Pothanikkad Police Station, Ernakulam. The offences alleged against him are under Sections 450, 342, 376(2)(n), 376 (3) of the Indian Penal Code and Sections 3, 4, 5 (l), and 6 of the Protection of Children from Sexual Offences Act, 2012.
4. In essence, the prosecution allegation is that the petitioner herein trespassed into the residential home of the survivor who is aged 14 years and subjected her to penetrative sexual abuse.
5. Sri. K. R. Vinod, the learned counsel appearing for the petitioner, relying on the decision of this Court in X v. State of Kerala1, argued that an application for anticipatory bail is perfectly maintainable at the instance of the child in conflict with law before this Court or a Court of Session. According to the learned counsel, Annexure-A3 Birth Certificate issued by the Registrar of Births and Deaths would show that the date of birth of the petitioner is 1 2018 (3) KHC 223 Bail Appl..No.3237 OF 2020 3 29.12.2002 and on the date of the incident, he was a minor. It is argued that the petitioner is a child in conflict with law as defined under the Juvenile Justice (Care and Protection of Children) Act, 2015 and he is entitled to every care and protection, which a juvenile is entitled to, under the provisions of the Act. On merits it was argued that the allegations against the petitioner are baseless. It is contended that the petitioner herein and the minor child was in love and on one occasion, he had gone to meet his lover. He was restrained by the people of the locality and was later released. Immediately thereafter, the father of the victim girl called the father of the petitioner and demanded a sum of Rs. 6 lakhs to refrain from filing a complaint of rape. He would rely on Annexure-A1 transcript of Whatsapp messages sent on 9.5.2020 by the victim child to the petitioner inviting him to her residential home on 10.5.2020. According to the learned counsel, if the petitioner had committed rape on 6.5.2020 and 7.5.2020 as alleged, he would not have been invited to her house on 10.5.2020 as is borne out from the chat transcripts. He would further contend that on a previous instance, Crime No.331 of 2015 was registered at the instance of the child against one Mr. Saithu alleging that he had committed rape on the victim. The accused was convicted by the court and the matter is pending before this Court as Crl.A. No.1017 of 2016. Finally, it is submitted that if the petitioner is apprehended on these frivolous accusations while his X Standard exams are going on, it would result in irreparable hardship.
Bail Appl..No.3237 OF 2020 4
6. The learned Public Prosecutor on instructions submitted that the investigating officer had conducted an enquiry into the Birth Certificate produced by the petitioner and it was found that it was genuine. In that view of the matter, on the date of commission of the offence, the petitioner had not completed the age of 18 years and I proceed on the basis that he is a child in conflict with law as defined under the Act.
7. Insofar as the merits of allegations are concerned, the learned Public Prosecutor submitted that the victim child, in her statement recorded by the learned Magistrate has stated that the petitioner used to blackmail her with the photos and thereafter subjected her to penetrative sexual intercourse. It is submitted that the mobile phones and laptops used by the petitioner needs to be seized and other medical examinations are to be conducted and if relief of pre- arrest bail is granted, it would prejudicially affect the investigation.
8. I have considered the submissions advanced and have gone through the materials, which are made available by the learned Public Prosecutor.
9. Prima facie, there are materials which show that some incident had taken place as alleged by the minor child. In her statement, under Section 164 of the Cr.P.C, the survivor has reiterated the nature of the abuse that she was subjected to. In that view of the matter, I was unable to accept the submission of the learned counsel that all the allegations raised by the prosecution are Bail Appl..No.3237 OF 2020 5 frivolous or vexatious. I am satisfied that this is not a fit case warranting invocation of the powers under Section 438 of the Cr.P.C.
10. However the fact remains that the materials suggest that the petitioner is a Juvenile in conflict with law. The provisions of the Juvenile Justice Act would inform that no authority, including the police, is empowered to arrest a child in conflict with law but instead the child in conflict with law could only be apprehended and produced before the Juvenile Justice Board. After the child in conflict with law is so apprehended or detained by the police or appears or brought before the Board such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person. The child in conflict with law, apprehended or detained is, as of right, entitled for bail irrespective of whether the offence said to have been committed by him is bailable or non - bailable. In that view of the matter the apprehension of the petitioner that he would be arrested and detained has no basis.
11. Considering the fact of the instant case in all perspectives, while denying the application for pre-arrest bail, I direct the petitioner to appear before the Juvenile Justice Board having jurisdiction within 15 days from today. On his appearance as aforesaid, the Board shall consider his application for bail Bail Appl..No.3237 OF 2020 6 on its merits and pass appropriate orders. To enable the petitioner to appear for his exams and to appear before the Board, the respondents are directed to defer his apprehension for a period of 15 days.
The registry shall ensure that the identity of the petitioner is not disclosed. His name shall be masked in the cause title of this order in an appropriate manner.
This application will stand disposed of .
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE PS/05.06.2020