Delhi HC Grants Bail in POCSO Case, Weighs Prosecutrix's Own Statement of Consent Despite Minority

Justice Anup Jairam Bhambhani granted regular bail to a POCSO accused, applying real-life considerations from a prior Delhi HC ruling while acknowledging the prosecutrix's expressed approval cannot be consent-in-law.

The High Court of Delhi, on 30 July 2024, admitted Hareram to regular bail in a case registered under section 376(2)(n) of the Indian Penal Code, 1860 and section 6 of the Protection of Children from Sexual Offences Act, 2011. Justice Anup Jairam Bhambhani, sitting singly, found that the prosecutrix's own statements — both in the FIR and before a Magistrate under section 164 of the Cr.P.C. — consistently described the physical relations as voluntary. The court drew on its earlier decision in Dharmander Singh @ Saheb v. The State (Govt. of NCT, Delhi), 2020 SCC OnLine Del 1267, to apply a framework of “real-life considerations” alongside the statutory presumption in section 29 of the POCSO Act. The petition had been filed under section 439 of the Cr.P.C.

The FIR and the Relationship Between the Two Minors

FIR No. 324/2022 was registered at Police Station Sarai Rohilla, Delhi. The prosecutrix's date of birth is stated to be 08.09.2006, placing her age at approximately 16 years in May–June 2022, when the alleged offences occurred. The petitioner is stated to be now about 20 years old.

According to the FIR and the prosecutrix's statement recorded under section 164 Cr.P.C. on 09.06.2022, the two had met while working in the same pickle-making factory. They developed a friendship and engaged in physical relations as “boyfriend-girlfriend” on at least three occasions: 02.05.2022, 16.05.2022 and 02.06.2022. On each occasion, the meeting took place at the prosecutrix's home when no one else was present, and the prosecutrix had invited the petitioner of her own free will. The petitioner had, it was alleged, promised to marry her.

The prosecutrix stated in her section 164 statement that she had engaged in physical relations with her consent, while also noting the promise of marriage. She initially said she had become pregnant, but a medical examination at Dr. Baba Saheb Ambedkar Hospital, Rohini, Delhi found that not to be the case.

The Legal Tension: Consent-in-Fact Against Consent-in-Law

Section 6 of the POCSO Act deals with aggravated penetrative sexual assault and carries a minimum sentence of ten years. Section 376(2)(n) of the IPC addresses repeated rape. Both offences are serious, and section 29 of the POCSO Act raises a statutory presumption of guilt once the prosecution establishes certain foundational facts, thereby raising the bar for an undertrial to secure bail.

The court acknowledged this statutory position plainly. It accepted that in law, consent of the prosecutrix is immaterial because she was a minor at the relevant time. At the same time, the court held that it could not “completely ignore the fact that the prosecutrix herself says that the physical relations between the two happened with her approval.”

The court drew a distinction between “approval-in-fact” and “consent-in-law.” While the latter is legally unavailable to a minor, the former — the actual circumstances as narrated by the prosecutrix herself — remained a consideration going to the equities of bail. The court also observed that at about 16 years of age and having worked in a factory, the prosecutrix possessed “a certain level of maturity,” even though she was not of the age of majority. There was, the court further noted, no allegation of force, violence or brutality in the commission of the alleged offences.

Reliance on the Dharmander Singh Framework

The court referred to its own earlier decision in Dharmander Singh @ Saheb v. The State (Govt. of NCT, Delhi), reported at 2020 SCC OnLine Del 1267. That decision had held that section 29 of the POCSO Act raises the bar for bail but does not create an absolute bar. It also set out certain real-life considerations relevant to bail decisions in POCSO cases.

Applying those considerations to the present facts, the court found the circumstances weighed in the petitioner's favour. The physical relations appeared to have taken place with the prosecutrix's approval-in-fact, even though the law does not recognise her consent. Both parties were minors at the time. The petitioner had no other criminal case against him, and his jail conduct was recorded as satisfactory in the Nominal Roll dated 09.05.2024.

The court also took note of the stage of trial. The depositions of the prosecutrix and her mother had already been recorded before the trial court. The matter was pending for recording the statements of official and police witnesses. Continued detention until that stage was complete would, in context, weigh against the petitioner given the custody already served.

Period in Custody and Bail Conditions Imposed

As of 09.05.2024, the petitioner had spent approximately one year and eleven months in judicial custody. The court found this period, alongside all other factors, sufficient to persuade it to allow the petition.

Regular bail was granted subject to the following conditions:

• The petitioner shall furnish a personal bond of Rs. 20,000 with two sureties in the like amount from family members, to the satisfaction of the trial court.
• The petitioner shall provide a cell-phone number to the Investigating Officer or SHO on which he may be contacted at any time, and shall keep it active and switched on.
• If the petitioner holds a passport, it shall be surrendered to the trial court; he shall not travel outside the country without prior permission of the trial court.
• The petitioner shall not contact, visit or offer any inducement, threat or promise to any prosecution witness or other person acquainted with the facts of the case, and shall not tamper with evidence or do anything to prejudice the pending trial.
• Any change in residential address or contact details must be promptly communicated to the Investigating Officer.

The court directed that a copy of the order be sent to the concerned Jail Superintendent forthwith. It expressly stated that nothing in the order should be construed as an expression of opinion on the merits of the pending trial.

Order

BAIL APPLN. 1340/2024 was disposed of by Justice Anup Jairam Bhambhani on 30 July 2024. The petitioner Hareram, son of Maheshwar Manjhi, was admitted to regular bail in FIR No. 324/2022, P.S. Sarai Rohilla, Delhi, registered under section 376(2)(n) IPC and section 6 POCSO, subject to the conditions set out in the order. All other pending applications were also disposed of.