The court ruled that while consent is immaterial under POCSO, the circumstances of the relationship and lack of coercion are critical in bail considerations.

JUDGMENT :

[MILIND N. JADHAV, J.]

1. Heard Mr. Shaikh, learned Advocate for Applicant, Ms. Newton, learned APP for Respondent No. 1 – State and Mr. Kadam, learned Advocate for Respondent No. 2.

2. This is an Application under Section 439 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking Regular Bail in connection with C.R.No. 208 of 2022 registered with N.R.I. Costal Police Station, Navi Mumbai for offences punishable under Sections 363 , 376 (2) (j) (n) of the Indian Penal Code, 1860 (for short ‘ IPC ’) and Section 4,8 and 12 of Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO’). Applicant is incarcerated for the past 1 year 6 months and 11 days.

3. Gist of prosecution case is that First Informant i.e. father of the prosecutrix lodged a missing complaint on the intervening night of 17.08.2022 and 18.08.2022. Prosecutrix went missing on 17.08.2022, family of the prosecutrix learnt about this when she did not return home on 17.08.2022. Mother of prosecutrix found that cash amount of Rs. 20,000/- from the house kept in the cupboard was missing. Prosecutrix returned back on 01.09.2022. She was dropped by the Applicant outside Panvel Police Station on the morning of 01.09.2022. She recorded her statement and was brought home. Prosecutrix aged 14 years states in her statement states that she was acquainted with Applicant since long and had a relationship with him. Applicant is 25 years old on the date of FIR. She states that she left her house and reached Mumbai to meet Applicant without informing her parents. She met Applicant and both travelled to Ekvira Devi Temple Karla, Lonavala, Pune where they stayed in a hotel room for 2 nights and then on 19.08.2022 Applicant took her to his friend’s house at Panvel, Raigad and both of them stayed there upto 30.08.2022. Two days thereafter Applicant’s friend returned back to Punjab (village of Applicant). On 30.08.2022 Applicant’s friend informed him on phone that police were investigating the missing complaint of prosecutrix and in that regard had apprehended his friend's brother in Punjab. When Applicant heard this, he immediately on the next day dropped the prosecutrix outside Panvel Police Station and left. She went to the Police Station and recorded her statement. It is stated in her statement that during their stay together, Applicant forcibly committed sexual intercourse on multiple occasions. It is admitted by prosecutrix that both of them had a love relationship.

4. Mr. Shaikh, learned Advocate for Applicant would submit that prosecutrix and Applicant were acquainted with each other since long as Applicant used to live in the neighboring building and eventually both of them had a love relationship with each other as stated by her in her statement to the police and in her further statement to the Medical Doctor during her medical examination. He would submit that prosecutrix willingly accompanied Applicant and travelled with him to Pune and stayed with him for about 15 days. He would submit that she infact took money from her house before meeting Applicant which itself shows no sign of force and she being clearly aware of her own actions.

4.1. He would submit that there is a clear dichotomy in the statement recorded on 01.09.2022 appended at page No. 89 and her Section 164 statement recorded on 06.09.2022 appended at page No. 103 of the Application. He would submit that prosecutrix has not made any allegation regarding any forceful act or coercion by Applicant. He would submit that prosecutrix clearly accepted her relationship with Applicant and this clearly shows and reflects that she was well aware of her actions and