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IN THE HIGH COURT OF DELHI AT NEW DELHI
Vikas Mahajan, J.
Sonu - Appellant
Versus
State - Respondent
Bail Appln. 1576 of 2023
Decided On : 01-11-2023
POCSO Act - Regular Bail - Section 376, 323, 506 IPC and Section 6 POCSO Act - 29
Fact of the Case:
The petitioner seeks regular bail in a case involving allegations of cheating the prosecutrix on the pretext of marriage and making physical relations with her. The prosecutrix was initially a minor and had eloped with the petitioner, but later, when she was a major, she voluntarily stayed with the petitioner. The court considered the impact of Section 29 of the POCSO Act in the bail application.
Finding of the Court:
The court found that the prosecutrix, during a significant part of the alleged period, was a major and appeared to be in a consensual romantic relationship with the petitioner. The court also noted that the petitioner's clean antecedents and his compliance with previous bail conditions supported the grant of bail.
Issues: The key issues involved the consent of the prosecutrix, the impact of Section 29 of the POCSO Act, and the voluntariness of the prosecutrix's stay with the petitioner.
Ratio Decidendi: The court considered the prosecutrix's age, her relationship with the petitioner, and the real-life considerations outlined in Dharmander Singh v. State to assess the egregiousness of the alleged offence and determine the grant of bail.
Final Decision: The court granted the petitioner regular bail, subject to specific conditions, based on the prosecutrix's age, her relationship with the petitioner, and the absence of evidence indicating a threat or pressure on the prosecutrix.
JUDGMENT
Vikas Mahajan, J.
1. The present petition has been filed under section 439 CrPC seeking regular bail in FIR No. 282/2022 under section 376, 323, 506 IPC and section 6 POCSO Act, registered at Police Station Sangam Vihar, New Delhi.
2. The FIR was registered at the instance of prosecutrix alleging that the petitioner has cheated the prosecutrix on the pretext of marriage. When the prosecutrix was 16? years old, the petitioner/accused, who belongs to her village, eloped with her promising to marry her and took her to Sangam Vihar Delhi. Her parents registered a case vide FIR No. 215/2019 U/s 363/366A IPC at PS Sadar, Sonipat, Haryana. In her statement u/s 164 Cr.P.C, she stated that she had not eloped with the petitioner/accused. Hence, a cancellation report was filed. At that time, the prosecutrix was a minor and didn't want to go with her parents, so she was sent to Bal Gram, Shelter Home.
3. On 09/09/2019, prosecutrix fled from Bal Gram Shelter Home allegedly on the directions of petitioner/accused and met him. Another FIR No. 357/2019 under section 346 IPC registered at PS Rai, Sonipat, Haryana in this regard.
4. On 17.08.2021, when the prosecutrix had attained the age of majority, she gave her statement under Section 164 CrPC in FIR No.357/2019 registered at PS Rai, Sonipat (Haryana) that on 22.05.2019 she had left her home out of her free will and had gone to Bal Gram Rai and had stayed there for four months and after that she had gone to Beas Ashram and on 17.08.2021 she voluntarily came back. The prosecutrix further deposed that she has no complaint against anyone nor she has been pressurised in any manner.
5. Subsequently, the present FIR has been registered on 12.05.2022 under Sections 376/323/506 and Section 6 of POCSO Act at PS Sangam Vihar. It is alleged in the FIR that the petitioner had taken away the prosecutrix from her home when she was just 16= years on the pretext of marriage. He kept the prosecutrix for one month at Sangam Vihar, Delhi and made physical relations with her. After one month, the prosecutrix went to Sadar Police Station, Sonipat where she got her statement recorded and then she stayed at Bal Gram for four months. Thereafter, she again came in contact with the petitioner. On petitioner's request, she again ran away with him. At that time, her age was 17 years. The petitioner had kept the prosecutrix in a room taken on rent where he had been establishing physical relations with her on the pretext of marriage. When the prosecutrix attained the age of majority, she was asked to give statement at police station. After the prosecutrix completed 18 years, she requested the petitioner to marry her but the petitioner refused and physically assaulted her. On 11.05.2022, the petitioner left the room threatening the prosecutrix and, thereafter, prosecutrix contacted her sister and got the present FIR registered on 12.05.2022.
6. The fact that the prosecutrix was major as on 17.08.2021 at the time of recording of her statement under Section 164 CrPC in FIR No. 357/2019 PS Rai, Sonipat (Haryana) is borne out from the testimony of prosecutrix recorded on 15.11.2022 in the present FIR where she has mentioned her date of birth as 30.03.2023.
7. Learned counsel for the petitioner submits that it is a case of romantic consensual relationship. To buttress her contention, she submits that the prosecutrix in the earlier two FIRs registered at Sonipat (Haryana) have not made any allegation against the petitioner.
8. She invites the attention of the Court to the final report/charge-sheet filed by the police under Section 173 CrPC in connection with the aforesaid FIR No.215/2019, wherein it has been mentioned that the statement of the prosecutrix was recorded under Section 164 CrPC before Duty Magistrate Shri Vinay Kakran, JMIC, Sonipat where she not only refused her medical examination but also stated that parents and brothers of the prosecutrix were forcefully getting her married and to avoid marriage against her wi
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