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2022 Supreme(Ker) 623
IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, J.
Anoop, Son Of Chami – Appellant
Versus
State Of Kerala – Respondent
Bail Appl. No. 3273 of 2022
Decided on : 26-08-2022
Advocate Appeared:
For the Appellant : Sri.NIREESH MATHEW, SMT.RASHMI, SMT.B.MEERA
For the Respondent: SMT.M.K.PUSHPALATHA, SRI.NIRMAL S., SMT.A.PARVATHI MENON, SMT.K.V.RASHMI
Point of law: Concept of quality education can have meaning only if orientation on sexual offences and the means to prevent them are imparted at school level itself.
Headnote:
Constitution of India, 1950 – Article 226, 39 (f), 21A – Indian Penal Code, 1860 – Criminal Procedure Code, 1973 – Section 438 – Protection of Children from Sexual Offences Act, 2012 – Right of Children to Free and Compulsory Education Act, 2009 – Sexual offences – Child sexual abuse – Power of high court to issue certain writs – Crime alleging rape of a minor – Either minors or those who had just crossed the threshold age of majority - Prevention-oriented programme on sexual abuse is therefore a facet of the right to education contemplated under Article 21A of the Constitution of India. (Para 24).
Finding of the court :
Fact that most States are incorporating programmes to prevent sexual abuse as part of a mandatory requirement indicates the success of such programmes – These are matters on which Government, CBSE and other educational institutions must deliberate upon and evolve appropriate methodology – Committee of Experts shall be formed by State of Kerala and CBSE within an outer time limit of two months from today to identify mode and methodology for imparting an age-appropriate prevention-oriented programme on sexual abuse – Committee of Experts shall submit its recommendations within an outer period of six months from its formation, and appropriate orders shall thereafter be issued by State of Kerala and CBSE in tune with recommendation so as to implement programme from the academic
Results: Bail application disposed of.
ORDER :
While considering an application for regular bail in a crime alleging rape of a minor, this Court expressed its anguish at the alarming rise in the number of sexual offences committed on school children. The distress escalated on noticing that, in many instances, the perpetrators themselves were students -either minors or those who had just crossed the threshold age of majority.
2. The present bail application relates to an incident of aggravated penetrative sexual assault by the petitioner on a victim aged 15 who became pregnant. The victim affirmed in her statement to the police that she was in a relationship with the petitioner and that they even intent on getting married. Although attempts were made by the relatives to terminate the pregnancy, the victim insisted on continuing with it. Petitioner's family expressed their inclination to accept the victim and the child. However, the fact remains that the girl is the victim of a sexual crime, and the young boy is an alleged sexual offender. Unmindful of the consequences, they indulged in a sexual act which can result in a minimum imprisonment of 20 years for the accused.
3. The alarming rise in the number of sexual offences committed against school children requires introspection. Many a time, the perpetrators are youngsters. Young children indulge in such offending acts for manifold reasons varying from pre-planned crimes to natural inquisitiveness of adolescence and some arising out of amorous relationships. At times the sexual acts are committed with the belief that the consent of both partners is sufficient to absolve them from the crime. By the time they realize their assumptions to be mistaken notions, it is too late in the day, and the situation becomes destructive, leading to very inconvenient results and beyond any remedial measures.
4. With the enactment of statutes like the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’), and the amendments to the Indian Penal Code 1860, laws relating to sexual offences have undergone drastic changes, and the young seem to be unaware of the enormity of the consequences of sexual acts. The crimes committed by the adolescent or the youths expose them to consequences that can snuff out their ‘life’, which could otherwise be resplendent. Taking cue from the adage “an ounce of prevention is worth a pound of cure”, this Court felt it essential to invoke its jurisdiction under Article 226 of the Constitution for issuing directions, despite the application being one for anticipatory bail under section 438 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C).
5. On 08.06.2022, this Court suo moto impleaded the State of Kerala, the Central Board of Secondary Education (for short 'the CBSE') and the Kerala State Legal Services Authority (for short 'the KELSA') and declared its intention to invoke the jurisdiction under Article 226 to issue directions for paving the way for better awareness of the statutes relating to sexual offences in the schools in Kerala.
6. After this Court proposed to issue directions, two persons came forward requesting to implead in the proceedings. An NGO called ‘Dil Se’, whose trustee is Dr.Janaki Sankaran and a law student, Ms. Parvathy Nambiar, thus requested permission to put forward their suggestions. Having regard to the objective behind the proposal of this Court, their impleading petitions were allowed.
7. I heard Adv. Parvathy Menon, on behalf of KELSA, Adv. Nirmal S., on behalf of the CBSE, Smt.M.K.Pushpalatha, learned Public Prosecutor/Government Pleader, Sri. Nireesh Mathew, on behalf of the petitioner in the bail application, Adv. Reshmi K.V., on behalf of the NGO ‘Dil Se’, and Ms. Parvathy Nambiar, the student from Hidyatullah National Law University, as party-in-person.
8. Adv. Parvathy Menon submitted that KELSA has already issued a booklet of relevant laws, which includes lessons on POCSO, which are supplied to students of various schools and that they are
