The judgment emphasizes the need to consider the testimony of the prosecutrix and the provisions of the POCSO Act while deciding bail applications, highlighting the distinction between consensual romantic relationships and criminal acts under the Act.

JUDGMENT

Vikas Mahajan, J.

1. The present application has been filed under Section 439 CrPC seeking regular bail in FIR No. 474/2022 under Sections 363/376 IPC and Section 4 of POCSO Act, registered at Police Station Moti Nagar, New Delhi.

2. The FIR was registered on the complaint made by the mother of the prosecutrix alleging that her younger daughter along with the prosecutrix (elder daughter), who was then aged about 15 years, had gone out of the house to buy ice cream. At that time, the petitioner who lives in the neighbourhood came on a motorcycle and coaxed the prosecutrix to sit on his motorcycle and thereafter, the petitioner ran away with the prosecutrix.

3. Vide order dated 25.04.2023, this Court directed the learned Trial Court to examine the prosecutrix and the testimony of the prosecutrix was accordingly recorded on 02.05.2023 and 02.06.2023. A copy of the testimony of the prosecutrix has now been filed.

4. The learned counsel for the petitioner submits that the prosecutrix in her testimony has not supported the case of the prosecution. He further submits that from the testimony of the prosecutrix it can be inferred that the petitioner and the prosecutrix were in a consensual romantic relationship. The prosecutrix has not alleged any sexual assault on part of the petitioner. Further, from the testimony of the prosecutrix, it is clearly borne out that the prosecutrix was not being treated well at home by her parents, therefore, she persuaded the petitioner to take her away.

5. Drawing attention of the Court to the statement of the prosecutrix recorded under Section 164 CrPC, the learned counsel for the petitioner contends that even in the said statement, there is no allegation of sexual assault or any sexual relationship having been established between the petitioner with the prosecutrix.

6. It is further argued that the petitioner is a young boy presently aged about 25 years and is already in custody since 23.08.2022 i.e., for almost 11 months now. He also contends that the antecedents of the petitioner are clean.

7. Per contra, Mr. Hemant Mehla, the learned APP for the State submits that the prosecutrix is a minor, therefore, even if she has gone with the petitioner out of her own will, such consent has no relevance in law.

8. Referring to the MLC, the learned APP further submits that the doctor who examined the prosecutrix has opined that the possibility of sexual assault cannot be ruled out.

9. I have heard the learned counsel for the petitioner, as well as, the learned APP for the State and have perused the record.

10. This court is conscious of the fact that at this stage when the bail application of the petitioner is being decided, evidence cannot be appreciated in detail as it may prejudice the case of the parties.

11. However, only for the limited purpose of deciding the present bail application, this Court has perused the testimony of the prosecutrix who appeared as PW-1 and finds that the prosecutrix knew the petitioner for the last five years and later on developed friendly relations with him, which was not acceptable to the parents of the prosecutrix. When the prosecutrix continued to be in touch with the petitioner over mobile phone or otherwise, the mother of the prosecutrix expressed her displeasure and stated that she does not want the prosecutrix to stay in her house, which led the prosecutrix to leave her home. After leaving her home, the prosecutrix called the petitioner and persuaded him to take her away.

12. It is also in the testimony of the prosecutrix that the petitioner tried to reason with the prosecutrix to go back to her home but she refused. The prosecutrix has further stated that the petitioner had asked her to call and inform at her home that she is with the petitioner but the prosecutrix refused. Thus, from the testimony of the prosecutrix, it prima facie appears that she left her parents' house on her own accord and persuaded the petitioner to take her away.

13. She