Sayyad Mohammed Eyas vs State Of Kerala

The petitioner is the sole accused in Crime No.155/2019 of Manjeshwar Police Station, which has been registered for offences punishable under Secs.376(2), (f)(l)(n) of I.P.C and Secs.3, 4, 7, 8, 9 (l)(n), 10 & 11 r/w Sec.12 of Protection of Children from Sexual Offences Act.

The brief of the prosecution allegation is that the petitioner is a close relative of the minor victim girl and that during the period 2015-2016 he has shown her obscene video pictures and on several days he had committed sexual intercourse at her house. The crime has been registered on 29.3.2019 based on the FI statement given by the minor victim girl on the same day. The petitioner has been arrested on 6.4.2019 and has been under judicial custody since then.

When the matter was taken up for consideration on 23.5.2019, the learned counsel for the petitioner had submitted that the date of birth of the petitioner-accused is 12.4.1998 and even going by the allegations raised by the minor victim girl, the alleged incidents have taken place during 2015-2016 and therefore at that time the petitioner-accused had not completed the age of 18 and that therefore the case of the petitioner could be treated only as a juvenile in the conflict with law as envisaged in the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, and therefore the present impugned action taken against him by treating the case as a regular proceedings under the Cr.P.C., so as to arrest him and remand him to jail, etc., are absolutely illegal and ultravires going by the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015.

This Court as per order dated 23.5.2019 had directed the learned Prosecutor to get instructions from the Investigating Officer concerned to verify the records about the date of birth of the petitioner-accused and the date of birth of the minor victim girl and the exact time frame during which the alleged incidents in the FI statement had happened and whether the petitioner-accused was a juvenile at the time of commission of the alleged offence in this case, etc.

The learned Prosecutor has now filed a memo producing therewith the birth certificates of the petitioner and the minor victim girl, wherein the date of birth of the petitioner- accused has been shown as 12.4.1998 and that of the minor victim girl is 26.9.2001.

Hence going by the prosecution case, the petitioner-accused has completed the age of 18 years only on 12.4.2016 and therefore even going by the FI statement that the minor victim girl was sexually assaulted by the petitioner in 2015-2016 and that the petitioner could be treated as a juvenile in the conflict with law as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. If that be so, the arrest and remand by the Police as per the provisions of the Code of Criminal Procedure, 1973 is ultra vires the provisions contained in the Juvenile Justice (Care and Protection of Children) Act, 2015. Further Sec.12 of the Juvenile Justice Act deals with grant of bail to a person who is apparently a child in conflict with law and Sec.12(1) authorises the Juvenile Justice Board to release such juvenile on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person, etc. Further Sec.8(2) of the Act mandates that the power conferred on the Juvenile Justice Board by or under the Act may also be exercised by the High Court and the Children's Court when the proceedings come before them under Sec.19 or in appeal, revision or otherwise.

Taking note of the facts and circumstances, it is ordered that the continued detention of the petitioner may not be proper and accordingly it is ordered that the jail authorities concerned will forthwith release the petitioner-accused and grant his custody to the Investigating Officer concerned, who will thereafter immediately produce him before the competent Juvenile Justice Board concerned. Taking note the aspect that the petitioner-accused has already been under judicial custody from 6.4.2019, which is more than about 53 days, it is ordered in the interest of justice that the Juvenile Justice Board will grant bail to the petitioner as envisaged in the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. Further it is ordered that the authorities concerned will proceed with the matter in accordance with law.

With these observations and directions, the above Application stands disposed of.