Amal Sagar v State of Kerala and Ambika Devi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 08TH DAY OF DECEMBER 2020 / 17TH AGRAHAYANA, 1942** ## **CRL.A.No.895 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CMP 512/2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)** **CRIME NO.1052/2020 OF Kuruppampady Police Station , Ernakulam** ## **APPELLANT/ACCUSED:** **AMAL SAGAR AGED 18 YEARS S/O. SHIYAS, MANGALIPPARAKARA, IRAPURAM VILLAGE, ERNAKULAM DISTRICT.** **BY ADV. SRI.P.P.BIJU** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 XXX XXX** ## **SMT.AMBIKA DEVI,SPLGP (W & C)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No. 895 of 2020 2 ## ALEXANDER THOMAS, J. -----------------------------------Criminal Appeal. No. 895 of 2020 -----------------------------------Dated this the 8[th] day of December, 2020 ## **JUDGMENT** The prayer in the afore captioned Crl.Appeal is as follows: _“…....to set aside the order of dismissing the bail application of Addl. District and Sessions Court, Ernakulam (For the trial of cases relating to Atrocities & Sexual Violence against Women and Children) in CMP. No.512/2020 in crime No.1052/2020 of Kuruppampady Police Station, Ernakulam District dated 22-10-2020 and grant bail to the appellant and allow this appeal.”_ 2. The appellant has been arrayed as the sole accused in the instant crime No.1052/2020 of Kuruppampady Police Station, Ernakulam District for offences punishable under Secs. 447, 354 (A), 450, 376(2)(n), 323, 506 of IPC and Sec.7 r/w 8, 5 (I) r/w.6, 11(v) r/w.12 of the Protection of Children from sexual Offences (POCSO) Act, 2012, Sec.66 (E) of Information Technology Act and Sec.3(2)(v) of SC/ST (Prevention of Atrocities) Act. 3. The brief of the prosecution case arising out of the abovesaid FIR registered on 12-10-2020 is that the victim girl is a minor aged 15 years and she belongs to Scheduled Caste community and that the appellant/accused, now aged 18 years, had trespassed into the house of minor victim girl in the locality concerned and repeatedly had Crl.Appeal No. 895 of 2020 3 sexual intercourse with her for the period from August 2017 till September, 2020. Further that the accused had taken videos of the abovesaid sexual incidents with the victim in his mobile phone and had also used it as a threat by stating that he would divulge the same if she does not yield to his sexual demands, etc. The FIR in this case has been registered on 12-10-2020 in respect of the alleged incidents which had happened for the period from August 2017 till September, 2020. 4. Both sides submit that the appellant/accused has been arrested and remanded in judicial custody in relation to his involvement in the present crime from 12-10-2020. The appellant/accused had filed an application for regular bail under Sec.439 of Cr.PC before the 1[st] Addl. Sessions Court, notified to deal with POCSO cases, Ernakulam as per Crl.M.P No.512/2020 in the crime afore mentioned No.1052/2020 of Kuruppampady Police Station. The said application for regular bail of the appellant/accused has been dismissed as per the impugned order dated 22-10-2020 rendered by the said Sessions Court concerned. Being aggrieved by the said order rendered on 22-10-2020, rejecting his plea for regular bail the appellant has filed the instant Crl.Appeal under Sec.14 A of Crl.Appeal No. 895 of 2020 4 SC/ST (POA) Act, 1989 to challenge the rejection of the plea for regular bail and praying to release him on regular bail. 5. After hearing both sides it appears that, the instant crime No.1052/2020 of Kuruppampady Police station, which was registered on 12-10-2020, was in respect of the alleged incidents, which have happened for the period from August 2017 till September 2020. In the abovesaid FIR registered on 12-10-2020, the Investigating Officer himself has shown the age of the appellant/accused herein as 18 years. It appears that the alleged incidents have happened from the period from August 2017 till September, 2020. 6. The learned counsel for the appellant/accused has not been able to apprise this Court about the precise date of the birth of the appellant/accused. However, from the submissions on both sides, it appears that for the last sexual incident, which happened on September, 2020, the appellant/accused had by then completed the age of 18 years. Under these circumstances, it is quite reasonable to infer that most of the incidents in subject crime would have occurred at a time when the appellant/accused had not completed the majority age of 18 years. The exact details in this regard could have been examined only if either the appellant/accused or the Investigating Crl.Appeal No. 895 of 2020 5 agency had provided this Court the precise details of the date of birth of the appellant/accused. Section 22 of the Juvenile Justice (Care and Protection of Children) Act, 2015 would mandate that the proceedings under Chapter VIII of the Cr.PC will not apply against juvenile offender, who has not completed the majority age of 18 years as at the time of the alleged incidents in question, which led to the occurrence of the alleged offence. In a case where the offender/accused has not completed the majority age of 18 years at the time of alleged incidents, which led to the offences in question, then case of such accused should be treated as a juvenile in conflict with law and his case should be treated strictly in accordance with the mandatory provisions contained in the Juvenile Justice (Care and Protection of Children) Act, 2015. So, _prima facie_ it appears that the initiation of the present proceedings by assuming as if the appellant/accused in this case had already completed the majority age of 18 years during the entire course of the alleged incidents, appears to be serious illegality as it affects the very vires and validity of such impugned action. Be that as it may, the learned Prosecutor would point out that at least for the alleged last incident, which is said to have happened on day in September, 2020 he would have crossed 6 Crl.Appeal No. 895 of 2020 the age of 18 years. The appellant/accused has already suffered remand in this case for the last 56 days or so. There is force in the submission of the appellant's counsel that the continued incarceration of the accused is not justified any longer. The learned Prosecutor has pointed out that the Investigating Officer has apprised that some of the matters in relation to this investigation are yet to be completed and the mobile phone, which is said to have been used in the said crime is yet to be recovered, etc. The appellant/accused has already been under incarceration after the remand for the last more than 56 days and his continued incarceration may not in any manner aid effectively the completion of the further investigation. 7. The learned Prosecutor would point out that the appellant is residing hardly within three kilometres from the residence of the minor victim girl and that it is highly possible that he may intimidate and threaten the minor victim girl and the witnesses concerned, etc. Those apprehensions of the prosecution should also be reasonably and adequately addressed by this Court. The relevant aspect of the matter is that the impugned investigation process by assuming as if the appellant/accused would have completed the majority age of 18 years during the entire course of the incidents commencing from Crl.Appeal No. 895 of 2020 7 August, 2017 onwards, appears to be illegal and based on not taking into account the relevant aspects after ascertaining the correct date of birth and age of the appellant/accused. 8. This Court is constrained to take the said _prima facie_ view in this matter since the counsel for the appellant has not apprised this Court about the precise date of birth of the appellant/accused. In a case like this, where the Investigating Officer has clearly recorded the age of the appellant/accused as 18 years at the time of the registration of the FIR on 12-10-2020, a legal duty and obligation was cast on the Investigating Officer to ascertain the correct date of birth of the appellant/accused, since the alleged incidents have taken place for the period from August, 2017 onwards in this case. 9. The FIR is registered on 12-10-2020 and the allegation therein are said to have taken place for the long period from August 2017, till September, 2020. Except stating that the accused was aged 18 years at the time of registration of the FIR on 12-10-2020, no other details are shown regarding the date of birth of the accused therein. The Sessions Court has not also considered the issue as to the effect of the incidents which have happened at a time when the accused had not completed the majority age of 18 years and though it is clearly Crl.Appeal No. 895 of 2020 8 stated in the FIR registered on 12-10-2020 that the appellant/accused is 18 years then and that the alleged incidents have happened for the long period from August 2017 upto September, 2020. Further it appears that the reference of the FIS that some of the incidents have happened at a time when the minor victim girl was studying in Std.VII and the accused was then her senior studying in Std.IX in the same school. 10. Now, the learned Prosecutor would submit that the Investigating Officer in this case, who is of the rank of Deputy Superintendent of Police, has given a report wherein it has been _inter alia_ stated that it is ascertained that the appellant/accused has completed the majority age of 18 years on 15-04-2020. To a specific query as to the case of the prosecution as to how many alleged sexual incidents would have happened after the appellant/accused has completed the majority age of 18 years on 15-04-2020, learned Prosecutor would point out that the allegations of the victim are to the effect that sexual incidents have happened on various occasions for the period from August 2017 onwards till September, 2020 and that the last of such incident occurred in September, 2020. Hence, though there is no clarity as to how many such alleged sexual Crl.Appeal No. 895 of 2020 9 incidents would have happened after the appellant/accused has completed the majority age of 18 years on 15-04-2020, at least one such alleged sexual incident has happened in September, 2020, which is at a time when the appellant has already completed the majority age of 18 years by then, going by the case of the prosecution. 11. Since the impugned criminal proceedings as per the abovesaid FIR has been initiated against the appellant/accused in respect of the alleged incidents which have happened for the long period from August 2017 till September, 2020, all such incidents which are said to have happened at a time when the appellant/accused had not completed the majority age of 18 years on 15-04-2020 would be in derogation of the provisions contained in Juvenile Justice (Care and Protection) Act, 2015, more particularly Sec.22 thereof. It is not known as to why the Investigating Officer has not shown the date of birth of the appellant/accused in the FIR registered on 12-10-2020, when he himself has stated that the age of the appellant/accused then was 18 years. These all the more so, as the victim would state in her FIS that the incidents have happened during the abovesaid long period from August, 2017 till September, 2020 and some of the incidents are at a time when she was studying Crl.Appeal No. 895 of 2020 10 in Std.VII of the school, where the appellant/accused was her senior in the same school studying in Std.IX. Therefore this ought to have alerted the Investigating agency to ascertain precisely the correct date of birth of the appellant/accused. It is not known whether the Investigating Officer has stated the precise date of birth of the appellant/accused in the remand report submitted by him, when the remand of the appellant/accused was sought for from the competent criminal court concerned after his arrest on 12-10-2020. This aspect of the matter has also not gained the attention of the Sessions Court, as can be seen from a mere reading of the impugned order dated 22-10-2020 (rendered by the said court rejecting the plea of the appellant/accused). True that the said impugned order has been rendered on 22-10-2020, which is hardly 10 days after the remand of the appellant. 12. But a reading of the FIR would have clearly indicated that the appellant/accused is 18 years at the time of registration of the FIR on 12-10-2020 and that the alleged incidents are said to have happened for the long period from August, 2017 till September, 2020 and this should have alerted the learned Sessions Court also to examine the said issue regarding the effect of Sec.22 of Juvenile 11 Crl.Appeal No. 895 of 2020 Justice Act in respect of the impugned criminal proceedings. It is not known as to why this aspect of the matter has not been properly examined by the said Sessions Court. True that, the appellant/accused has not advanced this crucial aspect of the matter before the Sessions Court. Since the FIR reveals the abovesaid crucial aspects, those aspects of the matter should have been adverted to by the prosecution as well as by the court below concerned. Now, the appellant/accused has been under incarceration for the last more than 56 days. The appellant has just completed the age of 18 years even going by the case of prosecution. 13. The apprehensions raised by the prosecutor regarding the serious likelihood of the appellant/accused intimidating and threatening the witnesses including minor victim girl, should also be seriously and reasonably addressed by this Court. The safety and well being of the minor victim girl should also be seriously adverted to and considered by this Court. 14. The District Police Chief concerned will immediately call for the entire C.D files in this case and may ascertain as to whether the Investigating Officer has collected the proper materials to know the precise date of birth of the appellant/accused as well as that of the 12 Crl.Appeal No. 895 of 2020 minor victim girl and, in exercise of his supervisory powers, as a superior officer may give necessary directives and guidelines to the Investigating Officer to deal with the issue relating to the alleged incidents, which have happened at a time when the appellant /accused has not completed the majority age of 18 years. 15. Taking note of the totality of the facts and circumstances of this case, this Court is of the considered view that, the continued incarceration of the appellant/accused may not be proper and the discretion of this Court to grant regular bail could be exercised. In that view of the matter, it is ordered that, the impugned order dated 22-10-2020 rendered by the 1[st] Addl. Sessions Court, notified to deal with POCSO cases, Ernakulam on Crl.M.P No.512/2020 (arising out of crime No.1052/2020 of Kuruppampady Police Station) will stand set aside. Consequently, it is ordered that the appellant/accused shall be released on regular bail on his executing bond for Rs.35,000/(Thirty Five Thousand only) and on furnishing two solvent sureties for the like sum, both to the satisfaction of the competent court below concerned. However, the grant of bail to the appellant will be subject to following conditions. - _i. The appellant shall report before the investigating officer on all 2[nd] and 4[th] Saturdays by 9.00 a.m for_ 13 Crl.Appeal No. 895 of 2020 _the next three months. Thereafter he shall report to the Investigating Officer as and when directed by the said Investigating Officer._ - _ii. The appellant will fully co-operate with the Investigating Officer in the conduct of the investigation process ._ - _iii. The appellant shall not involve in any criminal offences of similar nature._ - _iv. The appellant shall not influence the witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _v. The appellant shall not visit or go anywhere near to the vicinity of the residence and educational institution of the minor victim girl until the conclusion of the trial._ - _vi. The appellant/accused shall not enter into or reside anywhere within the territorial limits of the police station where the minor victim girl is residing or studying until the conclusion of the investigation process, except for the limited purpose of reporting before the Investigating Officer in this case or in any other crimes and for attending to any courts in connection with this case or any other cases or for contacting his advocate/lawyer, etc._ - _vii. However, it is made clear that if the appellant/accused has any emergent and genuine temporary need to visit the said area, then he may do so, but only after getting explicit permission in writing from the Investigating Officer concerned and that too, only for the limited duration of the temporary purpose for which he has to make such visit. However, in that contingency, the appellant shall not go anywhere within the vicinity of the residence or educational institution of the minor victim girl._ 14 Crl.Appeal No. 895 of 2020 _viii. The Investigating Officer will depute a police constable, preferably a woman constable once in a month for the next one year to ascertain from her and her family members as to whether she or her family members has been threatened or intimidated by the appellant/accused or his men in any manner and if anything adverse and serious if so brought to the notice of the I.O, then he shall conduct a proper enquiry to ascertain the truth of the matter and if he so convinced the investigating officer will immediately file requisite application before the competent court below concerned seeking cancellation of bail granted to the appellant hereby, in which case the said court will stand authorised to consider such application for cancellation of bail, the said Court may then consider the said plea and pass orders thereon, in accordance with law, after affording opportunity of being heard to the learned counsel for the accused, learned Prosecutor and the counsel for the minor victim girl._ With these observations and directions, the above Criminal Appeal will stand disposed of. **Sd/-** **ALEXANDER THOMAS, JUDGE** KAS