"Police Acted Beyond The Powers":Kerala HC Stays Criminal Proceedings Against Children Below 7 Yrs Of Age, Accused Of Rape [Read Order]

The "startling" case was brought to the notice of the High Court in a writ petition, seeking quashing of the criminal case, for the accused children belonging to the category 'doli incapax', under Section 82 of IPC.

In the backdrop, three young children, all below 7 years of age, have been alleged to have committed gang rape on a child, who is also of the same age and studying along with them.

During the course of hearing via video conferencing, the bench of Justice Bechu Kurian Thomas was "shocked" that not only were the children not produced before the JJB as per the Juvenile Justice Act, 2015, but the SHO concerned had instead summoned the children for test identification parade.

"Even though the plight of the victim stares at this Court, still a child in conflict with law has to be treated in a manner contemplated under the JJ Act and not like any other hardened criminal," the court observed.

Expressing displeasure at the "unpardonable" conduct of the authorities, Justice Thomas remarked that children in conflict with law have to necessarily be dealt with under the JJ Act.

"Under the JJ Act, a child when apprehended as being in conflict with law, is to be dealt with, exclusively by the Board constituted under Section 8, that too in a manner provided under Section 3 through the procedure contemplated under Section 10 of the JJ Act. As a Special Act, when a child in conflict with law is apprehended, for an offence either under the Indian Penal Code or under any other Penal Statute, the officer apprehending the child has to resort to the procedure under Section 10 of the JJ Act," he illustrated.

However, in the case at hand he observed,

"It is submitted to the shock of this Court that the Station House Officer, the 4th respondent herein, had directed the petitioners along with their children to present themselves before the police station along with the photographs of the children for the purpose of a test identification parade. It is also submitted that the children have not yet been placed before the Board. These actions, if true, are unpardonable."

Prima facie thus, the court held that the SHO had acted "beyond his powers" especially since he had proceeded in contravention of the JJ Act.

The bench noted that even though six months had elapsed after the commission of the alleged offence, the children had not been produced before the JJ Board till date.

"This certainly amounts to harassment and an abuse of the powers," the bench remarked.

In such circumstances, the court directed,

"there will be an interim stay of all further proceedings in Crime No......of 2019  and the 4th respondent is directed to place the records of the said case before the Juvenile Justice Board without any delay, pending further orders of this Court."

Inter alia, the court has ordered the Director General of Prosecution to get instructions in the Case and place the opinion of the Special Public Prosecutor for POCSO cases, Alappuzha District under whose advice the police is said to have acted and a copy of the FIR in a sealed cover for the consideration of the Court, by May 20, 2020.