The petitioner, who is accused of committing aggravated penetrative sexual assault, seeks the protection of pre-arrest bail envisaged under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code').

2. The petitioner is the accused in the case registered as Crime No.1248/2018 of the Adoor police station. The case was initially registered under Section 57 of the Kerala Police Act, 2011. The missing person, who was a minor girl, was later found out from the house of the petitioner. Subsequently, the petitioner was implicated as an accused in the case for committing the offences punishable under Sections 363 and 376 of the Indian Penal Code and Section 5(l) read with 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the Act') and also under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

3. The facts of the case can be briefly stated as follows:

The victim girl was found missing from her house from 11.05.2018 onwards. On the basis of the statement given to the police by the father of the girl, Crime No.1248/2018 of the Adoor police station was registered under Section 57 of the Kerala Police Act, 2011. A letter was found at her house in which it was stated that she had left the house with the person she loved. Investigation revealed that the girl was residing with the petitioner in his house. On 19.05.2018, she was produced before the Magistrate concerned. During the further investigation conducted by the police, it was revealed that the girl has not attained the age of 18 years. The statement given by the victim girl to the Magistrate concerned revealed that the petitioner had promised her that he would marry her and he had sexual intercourse with her several times when she was residing with him in his house. Consequently, the offences mentioned earlier were incorporated and the petitioner was arrayed as accused in the case.

4. I have heard the learned counsel for the petitioner and the learned Public Prosecutor and also perused the case diary.

5. The case diary does not contain the statement of the victim girl recorded by the Magistrate under Section 164 of the Code. But it contains the statement given by her to the Magistrate when she was traced out and produced before the court. In this statement she has categorically stated that the petitioner had promised her that he would marry her and he had persuaded her to have sexual intercourse with him. She has also stated that he had sexual intercourse with her several times when they resided together in his house.

6. The case diary contains copy of the birth certificate of the victim girl. It shows that her date of birth is 16.10.2000. It means that she had not attained the age of 18 years when the petitioner had sexual intercourse with her. Section 2(d) of the Act defines a child as any person below the age of eighteen years. It follows that the victim was a child when she was subjected to sexual assault by the petitioner.

7. Section 5(l) of the Act provides that whoever commits penetrative sexual assault on a child more than once or repeatedly is said to commit aggravated penetrative sexual assault. As per Clause 'sixthly' of Section 375 of the Indian Penal Code, a man is said to commit rape if he commits sexual intercourse with a woman, with or without her consent, when she is under eighteen years of age.

8. At this stage of the case, prima facie, there are sufficient materials to find that the petitioner has committed the offences punishable under Section 376 of the Indian Penal Code and Section 5(l) read with 6 of the Act.

9. Learned counsel for the petitioner has submitted that the victim girl and the petitioner were in love with each other and that the petitioner had sexual intercourse with the victim with her consent. Learned counsel would point out that the victim had left her house on her own wish and will and she resided with the petitioner voluntarily and they had o