If Leaving From Guardianship Is On Own Volition, It May Not Amount To Offence U/s. Section 361 IPC Even If Victim Is Minor: Kerala HC
The Kerala High Court has held that If the leaving from the guardianship is on the volition of the victim, that may not amount to an offence under Section 361 of the IPC even if she is below the age of 18 years.
The Court also reiterated that acts done under Section 11 read with Section 12 of the POCSO Act would only amount to an offence if done with a ‘sexual intent.’
A Single Bench of Justice P.G. Ajithkumar held, "If the leaving from the guardianship is on the volition of the victim, that may not amount to an offence even if she is below the age of 18 years. Considering the entire materials produced by the prosecution, what could be made out is only that the victim left her home on her own volition and on her insistence the petitioner took the victim to a lodge at Ernakulam. That would not constitute an offence as defined under Section 361 of the IPC".
Advocate V.A. Haritha represented the petitioner, while Senior Public Prosecutor Pushpalatha M.K. appeared for the Prosecution.
The Bench clarified that since “sexual intent is a necessary ingredient to constitute an offence” under these Sections, the allegations in the final report did not indicate that the petitioner contacted the victim during the relevant period over the phone with any sexual intent.
The petitioner was accused under Section 363 of the IPC and Section 11(iv) read with Section 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The revision petition was filed against the order by the Special Court for the trial of cases relating to atrocities and sexual violence against women and children. The Special Court had dismissed the petitioner's request for discharge.
The petitioner argued that as per the statement under Section 164 of the CrPC, the victim specifically stated that she left her home of her own volition to join the petitioner. Hence, it was argued that no offence either under Section 363 of the IPC or under Section 12 of the POCSO Act would be revealed.
The final report submitted to the Special Court alleged that the petitioner and the victim, a 17-year-old girl, were involved in a sexual relationship that resulted in the victim’s pregnancy.
The Public Prosecutor argued that the petitioner having taken the victim to a distant place by itself would amount to kidnapping from lawful guardianship. Secondly, it was argued that making a phone call to the victim would amount to an offence punishable under Section 12 of the PoCSO Act if it was with “sexual intent.”
“The question therefore, is whether the allegations in the final report together with the materials produced by the prosecution would create a grave suspicion enabling to frame a charge against the petitioner,” the Bench remarked.
The Court clarified that the prosecution’s case did not support the charges of kidnapping or the alleged sexual intent necessary to constitute an offence under the POCSO Act.
Consequently, the Court held, “The allegations levelled against the petitioner concerning the incident occurred on 30.10.2020 do not reveal any criminal intent on his part. In the circumstances, I hold that offences punishable under neither Section 363 of the IPC nor Section 11(iv) r/w Section 12 of the PoCSO Act is revealed from the prosecution records.”
Accordingly, the High Court allowed the revision petition.
Cause Title: Ajay Jimmy v. State of Kerala (Neutral Citation: 2024:KER:44699)
Appearance:
Petitioner: Advocates V.A.Haritha and Gayathri Muraleedharan
Respondent: Sr. PP Pushpalatha M.K.