Determining valid consent under the POCSO Act involves considering age and promises made, with such determinations being reserved for trial proceedings.

JUDGMENT

1. Heard Sri Shivasharana Reddy, learned counsel for the petitioner and Sri Veeranagouda Malipatil, learned High Court Government Pleader for respondent No.1.

2. The present petition is filed under Sec. 439 of Cr.P.C., with the following prayer:

"Wherefore, it is prayed that, the Hon'ble court be pleased to release the accused/petitioner on bail in Crime No.42/2022 of Kalagi P.S. Dist. Kalaburagi, pending on the file of Addl. District & Sessions Judge and FTSC-I (POCSO) at Kalaburagi in Spl.Case POCSO No.64/2022, for the offences punishable U/Sec.363, 376(2)(n) of I.P.C and U/Sec. 4, 8, 17 of POCSO Act, 2012, in the interest of justice."

3. The petitioner is chargesheeted for the offences punishable under Ss. 363 and 376(2)(n) of IPC and Ss. 4, 8 and 17 of the Protection of Children from Sexual Offences Act, 2012 (for short, hereinafter referred to as 'POCSO Act') and he is facing trial in Special Case (POCSO) No.64/2022 on the file of Additional District and Sessions Judge and FTSC-I (POCSO) at Kalaburagi.

4. Factual matrix of the case which are utmost necessary for disposal of the present petition are as under:

Case of the prosecution is that the victim's parents and her elder brother are residing in Bengaluru for the last 7-8 years and her elder sister is married. The victim girl and her grand mother are residents of Kandagul village and the victim was pursuing her second year PUC at Revagigudda. The victim became acquainted with the accused at Kandagula and they developed an affair. The accused promised to marry the victim girl and had physical intercourse with her. On the pretext of love affair and marriage promise made by the accused, the victim girl also co-operated for the physical relationship with the accused. However, later on, the accused did not keep up his words and wanted to contract a marriage with some other girl resulting in mother of the victim girl filing a complaint before the jurisdictional police and after thorough investigation, chargesheet came to be filed.

5. The effort made by the accused/petitioner to seek grant of bail is turned down by the learned Special Judge and thereafter, the petitioner is before this Court.

6. Learned counsel for the petitioner reiterating the grounds urged in the bail petition vehemently contended that the victim girl is aged 17 years 5 months even according to the prosecution and therefore, she being a consenting party to the sexual intercourse the accused had with her, no provisions of the POCSO Act are attracted and therefore, sought for grant of bail.

7. Per contra, learned High Court Government Pleader opposes the bail petition seriously. The complainant is served with the notice of the bail petition, but remained absent.

8. This Court perused the material on record meticulously in view of the rival contentions of the parties.

9. Admittedly, the victim girl is aged 17 years as per the prosecution and even in the examinationin-chief, she has reiterated that her age as on the date of the incident is 17 years. On the pretext of marriage, the accused took the victim girl to Tirupathi and other places and had physical relationship.

10. Whether consent by a girl aged about 17 years would be a valid and legal consent in terms of the provisions of the POCSO Act or not, is no longer res-integra. It is too premature for this Court to arrive at any conclusion that the victim is a consenting party for the alleged incident in view of the settled principles of law enunciated by the Hon'ble Supreme Court in the case of Independent thought vs. Union of India and another reported in (2017) 10 SCC 800.

11. Further, dispute as to age of the victim girl so as to find out whether she is a consenting party is to be adjudicated in the trial.

12. Suffice to say that having regard to the provisions contained in Ss. 29 and 30 of the POCSO Act and also taking note of the fact that there was a promise to marry and that has not been adhered to by the accused/petitioner and in that pretext, p