IMPORTANT POINT
Bail – Presumption under Sections 29 and 30 of POCSO Act cannot be applied in absolute terms to application seeking bail.

ORDER

This application has been filed seeking regular bail in FIR No.0013/2019 registered with Police Station: Old Delhi (Delhi Main) Railway Station under Sections 363/366/376/505/34 of the Indian Penal Code, 1860 (in short, ‘IPC’) and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short, ‘POCSO Act’). The FIR was initially registered only under Section 363 of the IPC, however, on the statement of the victim, the other Sections were added thereto.

2. It is the case of the prosecution that on 27.01.2019, when the victim went along with her maternal grandfather to the Old Delhi Railway Station to catch a train to Lal Kuan, Uttarakhand, she went missing from the said station. Later, she was recovered from the Court premises at Meerut. In her statement under Section 164 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’), she stated that the accused had taken her on a false pretext of marriage to Meerut, from where they went to Haridwar, where he made physical relation with her, thereafter he brought her back to Meerut and left her at the Court premises. Based on the above allegations, the charge-sheet has been filed against the applicant and he is facing trial.

3. The learned counsel for the applicant submits that the victim has been examined before the learned Trial Court, and she has stated that she went with the applicant out of her own free will and volition. He further submits that the other main witnesses, that is, the family members of the victim, which include her mother and the maternal grandfather, have also been examined before the learned Trial Court, and only the formal witnesses remain to be examined. He further states that the applicant has been in custody since 19.02.2019, and has already undergone imprisonment of almost five years.

4. The learned APP for the State opposes the prayer made by submitting that in the present case, keeping in view the statement of the victim, presumption under Sections 29 and 30 of the POCSO Act would be attracted. He further opposes the prayer for bail stating that the nature of the crime does not warrant the applicant to be released on bail.

5. The learned counsel for the victim also opposes the present application, and submits that the victim was being threatened to give a statement in favour of the applicant, as has also been recorded by the learned Trial Court while rejecting the earlier bail applications vide orders dated 11.09.2020 and 12.01.2022. She submits that the victim has been consistent in her statement that the applicant has made a physical relationship with her on the pretext of marriage. She submits that charges under Section 6 of the POCSO Act and Section 376 of IPC stands established. She further submits that keeping in view the nature of the offence alleged, the applicant should not be enlarged on bail. She submits that the presumption of the guilt of the applicant under Sections 29 and 30 of the POCSO Act would also be applicable.

6. She submits that even assuming that the victim’s statement that she went with the applicant of her own free will is to be accepted, as the victim was a minor, her consent would be immaterial and this would be no ground to enlarge the applicant on bail. In support, she places reliance on:—

(i) the judgment and order dated 21.02.2022 passed by the Supreme Court in Criminal Appeal No.263/2022, titled X (Minor) v. The State of Jharkhand & Anr.;

(ii) Surya Prakash Pal v. State of NCT of Delhi 2022 SCC OnLine Del 1036;

(iii) Jagbir v. State (NCT of Delhi), Neutral Citation No.2022:DHC:2727; and,

(iv) Raghav Yadav @ Manoj @ Anurag v. The State NCT of Delhi, Neutral Citation No. 2022:DHC:1705.

7. She further submits that under Section 436 of the Cr.P.C., it is not mandatory to release the accused on bail only because he has undergone more than the minimum sentence prescribed for an offence.

8. I have considered the submissions made by the learned counsels for the parties.

9. At the outset, it is i