IMPORTANT POINT
Bail – Under POCSO Act, age of victim is decisive factor – If victim is below 18 years of age, law presumes that she is incapable of giving valid consent.

ORDER

The present application filed under Section 483 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (erstwhile Section 439 and Section 482 of the Code of Criminal Procedure, 1973 (CrPC) respectively) seeks regular bail in proceedings arising from FIR No. 0415/2024 dated 17th May, 2024, registered at P.S. Bhalswa Dairy, under Sections 376 and 313 of the Indian Penal Code, 1860 (IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

2. Briefly, the case of the prosecution is as follows:

2.1 On 16th May, 2024, Ms. ‘X’, age 16 years, appeared at P.S. Bhalswa Dairy along with her parents. Her parents informed the police that she had recently undergone an ultrasound examination, which confirmed a pregnancy. In view of the circumstances, the IO arranged for counselling by a CIC counsellor.

2.2 After receiving counselling, the Prosecutrix recorded her statement, alleging that the Applicant, who resided across from her house with his wife and children, had developed acquaintance with her over the past three to four months. She claimed that during this period, the Applicant engaged in physical relations with her on multiple occasions under the pretext of marriage.

2.3. The Prosecutrix stated that on 10th May, 2024, upon noticing a delay in her menstrual cycle, she took a pregnancy test, which returned positive. When she informed the Applicant of this development, he provided her with some medication. After consuming the said medicine, her menstrual cycle resumed; however, she began experiencing severe abdominal pain. On 16th May, 2024, she disclosed her condition to her father, who subsequently took her to Sant Soham Hospital, where the Doctor conducted an ultrasound test. On the basis of ultrasound examination, parents were informed that Prosecutrix had been pregnant.

2.4 After recording of the above statement, the Investigating Officer escorted the Prosecutrix to BJRM Hospital for a medical examination, which was conducted and documented under MLC No. 251335 dated 16th May, 2024. Subsequently, on 17th May, 2024, the present FIR No. 415/2024 was registered, and the investigation commenced.

2.5 During the course of investigation, the Applicant was arrested on 17th May, 2024 and remanded to Judicial custody. The Prosecutrix’s statement was recorded under Section 164 of the CrPC, wherein she reiterated the facts stated in the FIR. Additionally, her date of birth was verified from her school records, confirming that she was born on 3rd August, 2008. Accordingly, the investigation established that the Prosecutrix is a minor.

2.6 During the course of further investigation, exhibits from the Prosecutrix and the Applicant were collected and sent for forensic examination. Upon completion of the investigation, a chargesheet was filed against the Applicant, and the trial proceedings commenced. Subsequently, the FSL results were obtained and duly submitted before the Trial Court.

2.7 Charges were framed against the Applicant on 5th September, 2024, for offences under Sections 376(2)(n) and 313 of the IPC, along with Section 6 of the POCSO Act. So far, the Prosecutrix, along with her mother and father, have been examined as prosecution witnesses before the Trial Court and the matter is now listed for 13th February, 2025, for the recording of evidence of the School Principal (PW-16).

3. Counsel for the Applicant seeks grant of bail on the following grounds:

3.1 The FIR was registered six days after the alleged incident when the Prosecutrix allegedly took the medicine at the behest of the Applicant. The FIR is based on a complaint signed by the Prosecutrix’s mother rather than the Prosecutrix herself. This delay is significant as it raises questions about the voluntary nature of the complaint. The Prosecutrix was in a consensual relationship with the Applicant and was subsequently pressured by her parents into filing the complaint.

3.2 The counselling report signed by the CIC Counse