The High Court of Kerala has refused to grant bail based on factual considerations including that the accused is a solider and the allegations against him must be taken seriously.
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‘A soldier is never off-duty’, is the central plank— and subtitle— of the 2014 hit Hindi film Holiday, starring Akshay Kumar.
It is also a sentiment captured in Section 5(b)(iv) of the Protection of Child from Sexual Offences Act, (POCSO Act) 2012, which defines aggravated sexual assault as: “Whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child, where the said person is known or identified as a member of the security or armed forces”.
It is in this spirit that Justice Sophy Thomas of the Kerala High Court has denied bail to a soldier who, while on a visit to his home in Lakshadeep, is accused of having persuaded a 13-year-old boy to engage in an act of sodomy with him and another person.
Brief facts
The accused is 32 years old and is a resident of the Union territory of Lakshwadeep. He is accused of having committed offences punishable under Sections 5b(iv)(aggravated penetrative sexual assault), 6 (punishment for aggravated penetrative sexual assault), 11(iv)(sexual harassment), 12 (punishment for sexual harassment) and 18 (punishment for attempt to commit an offence) of the POCSO Act and was arrested in 2023.
As per the prosecution, the accused, who is a soldier, along with his accomplice, offered cash to persuade the victim boy to have sexual intercourse with them.
The counsel for the accused submitted that he is a soldier and due to some dispute between the victim and his family, a false case was filed against him. He sought bail under 439 (special powers of the high court or court of session regarding bail) of the Code of Criminal Procedure.
The counsel representing the Union territory of Lakshadweep opposed the bail application and argued that releasing the accused on bail may adversely affect the investigation process and the victim’s security.
What did the High Court of Kerala say?
Justice Sophy Thomas of the High Court of Kerala remarked that being a soldier, the allegations against him are to be taken more seriously.
She said: “The allegations if it is proven true, are vulgar and unbecoming of a responsible military officer… He is supposed to guard the nation and the dignity and integrity of its citizens.”
Based on the factor that he is a soldier and considering the factual circumstances before it, the court declined bail to the accused soldier.
What does the law say?
As per Section 5b(iv) of the POCSO Act, if a person is known or identified as a member of the armed forces, the offence of penetrative sexual assault will be converted into aggravated penetrative sexual assault.
This clause could be considered “unbecoming conduct” which is a legal phrase used against members of armed forces who behave in a manner unbecoming of their position and the character expected of them. The Army Act, 1950 states that such armed officers could be cashiered.
The POCSO Act has a higher threshold when it comes to offences committed by a police officer, a member of armed forces or security forces. That is why, even when the offence is committed by the said authority off duty, the POCSO Act takes cognisance of such offences.
Unlike the POCSO Act, the Indian Penal Code under Section 376C (sexual intercourse by a person in authority) only covers situations where a person in authority abuses his position or fiduciary relationship to induce or seduce a woman, which is punishable with rigorous imprisonment for a maximum period of 10 years.
Provided the woman is either in the custody of the person or under his charge or present on the premises to have sexual intercourse with him.
However, the offence does not amount to rape.
