By Shazia Siddiqui

In a recent ruling, the Kerala High Court addressed the legal implications of a minor leaving her guardian’s custody voluntarily. The case arose from charges against the petitioner under Section 363 of the Indian Penal Code (IPC) and Section 11(iv) read with Section 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The petitioner was accused of kidnapping and acts construed to be sexual offences under these sections.

The controversy began when a 17-year-old girl left her home and was found with the petitioner in a lodge in Ernakulam. The prosecution alleged that the petitioner kidnapped the minor and engaged in a sexual relationship with her, resulting in her pregnancy. The initial order by the Special Court, tasked with handling cases of sexual violence and atrocities against women and children, dismissed the petitioner’s request for discharge, indicating there was sufficient ground to proceed with the trial based on the prosecution’s materials.

However, the petitioner challenged this decision, arguing that the victim had willingly left her home and joined him, as per her statement recorded under Section 164 of the Code of Criminal Procedure (CrPC). The petitioner contended that no offence of kidnapping or sexual intent was evident from the circumstances.

The High Court, upon reviewing the case, provided a nuanced interpretation of the charges under IPC and the POCSO Act. The Court emphasized that for an act to qualify as kidnapping under Section 361 of the IPC, it must involve taking or enticing a minor from lawful guardianship against the guardian’s will. However, if the minor leaves the guardianship of her own volition, this may not constitute kidnapping, even if she is below 18 years of age. This interpretation hinges on the victim’s voluntary departure from her home.

Furthermore, the Court examined the allegations under the POCSO Act, which criminalizes acts done with sexual intent towards minors. The prosecution’s final report suggested that the petitioner’s actions could fall under this category, particularly noting the petitioner’s phone contact with the victim. However, the Court reiterated that for an act to be punishable under Sections 11 and 12 of the POCSO Act, it must be proven to have been carried out with sexual intent. The Court found no evidence of such intent in the petitioner’s actions during the period in question.

In its ruling, the Court observed that the materials provided by the prosecution did not substantiate the charges of kidnapping or sexual intent necessary to constitute an offence under the POCSO Act. The High Court thus held that the actions of the petitioner, as presented in the prosecution’s records, did not reveal any criminal intent. Consequently, the charges under Section 363 of the IPC and Section 11(iv) read with Section 12 of the POCSO Act were not applicable.

The High Court’s decision to allow the revision petition underscores a critical legal principle: the importance of establishing both the voluntariness of the minor’s actions and the presence of sexual intent to substantiate charges under the relevant sections of the IPC and POCSO Act. This ruling offers significant clarity on how courts may interpret the acts of minors in relation to guardianship and sexual offences.

Case Title: Ajay Jimmy v. State of Kerala

Neutral Citation: 2024:KER:44699

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