Joga Kumar Behra vs State Of Kerala

Gopinath.P, J

This is an application for regular bail

The petitioner is the 1st accused in Crime No.1321/2021 of Angamally Police Station, Ernakulam District alleging commission of offences punishable under Sections 342, 376(2)(n), 376 (3), 366, 370 of the Indian Penal Code and under Sections 3(a) r/w 4(2), 6 r/w 5(l), 17 r/w 16 of Protection of Children from Sexual Offences Act and Section 10, 11 of the Prohibition of Child Marriage Act, 2006.

The allegation against the petitioner is that the petitioner enticed a minor victim girl aged 15 years, and wrongfully confined her to the bed room of a house belonging to one Sajan and with the instigation of accused Nos. 2 & 3 who are stated to be parents of the minor victim married the minor victim on 05-09-2021 and thereafter subjected the minor victim to sexual intercourse during the period from 30-08-2021 till 10-09-2021.

The learned counsel appearing for the petitioner submits that the petitioner is absolutely innocent in the matter. It is submitted that actually the victim was born on 25-01-2021 and on the dates to which the allegations relate, the victim had attained the age of majority. It is submitted that the crime was registered only at the instance of some persons in the locality who felt that the victim was a minor. It is submitted that the petitioner had started living with the victim only after conducting a marriage in the presence of her parents,who are accused Nos.2 and 3 in the case. It is submitted that accused Nos.2 and 3 have already been granted bail. It is submitted that the petitioner has been in custody for 194 days and his continued detention is not necessary for the purposes of any investigation.

The learned Public Prosecutor very fairly submits that going by the information given by the victim, the petitioner and the victim got married to each other and were living together with her consent and with the consent of her parents. However it is submitted that going by the recent judgment of the Supreme Court, the question as to whether the accused in a case involving the offence under the POCSO Act is entitled to bail cannot determined on the basis that the accused and the victim were in a relationship with each other. It is submitted that the birth certificate now relied on by the petitioner that suggests that the victim had already attained the age of majority was a certificate obtained only on 28-12-2021, after the registration of the crime. It is submitted that the victim had, in her 164 statement, clearly stated that she was only 15 years of age. It is also submitted that the records such school leaving certificate obtained from the victim also suggest that her date of birth is 16-02-2007. It is submitted that if the case of a dispute regarding age, an Ossification test can be conducted to determine the age of the victim.

Having regard to the facts and circumstances of the case and considering the nature of the allegations and also taking into account of the fact that the petitioner has been in custody for 194 days, I am of the opinion that the petitioner can be granted bail subject to strict conditions.

In the result this bail application is allowed. It is directed that the petitioner shall be released on bail, subject to the following conditions:-

(i) The petitioner shall execute a bond for a sum of Rs.50,000/-(Rupees fifty thousand only) with two sureties (atleast one of who shall be a local surety) each for the like sum to the satisfaction of the jurisdictional Court;

(ii) The Petitioner shall report before the Station House Officer in Crime No.1321/2021 of Angamally Police Station, Ernakulam District on every Saturday between 7.00 P.M and 8.00 P.M until further orders;

(iii) The petitioner shall not attempt to interfere with the investigation, influence or intimidate the victim or any witness in Crime No.1321/2021 of Angamally Police Station, Ernakulam District;

(iv) The petitioner shall not leave the local limits of Ernakulam District without obtaining permission from the Jurisdictional Court;

(v) The petitioner shall not involve in any other crime while on bail.

If any of the aforesaid conditions are violated, the Investigating officer in Crime No.1321/2021 of Angamally Police Station, Ernakulam District may file an application before the jurisdictional Court for cancellation of bail.