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IN THE HIGH COURT OF DELHI
Anup Jairam Bhambhani, J.
Bijender Mehto - Appellant
Versus
GNCT of Delhi - Respondent
Bail Appln. 3618 of 2022
Decided On : 21-12-2022
JUDGMENT
Anup Jairam Bhambhani, J.
By way of the present petition under section 439 read with section 482 of the Code of Civil Procedure 1973 (`Cr.P.C.'), the petitioner seeks regular bail in case FIR No.381/2020 dated 28.07.2020 registered under sections 363/366/376 of the Indian Penal Code 1860 (`IPC') and section 6 of the Protection of Children from Sexual Offences Act, 2012 (`POCSO Act') at P.S: Geeta Colony, arising from which he is presently undertrial in SC No.250/2021 before the learned Additional Sessions Judge (POCSO) East District, Karkardooma Courts, Delhi.
2. The petitioner has been in judicial custody since 01.03.2021.
3. Notice on this petition was issued on 05.12.2022. Status report dated 15.12.2022 has been filed in the matter.
4. Mr. Vikas Kumar, learned counsel for the petitioner submits that:
4.1. The genesis of the matter is a consensual relationship between the petitioner and `X' (name anonymised) who have known each other for many years, since they were in school together. The petitioner's date of birth is 18.02.2002 as per school records; whereas the date of birth of `X' is 12.11.2003 as per school records;
4.2. The petitioner's date of birth has been accepted in proceedings arising from another FIR No.71/2019 registered at P.S: Geeta Colony, in which the petitioner was tried as a juvenile by the learned Principal Magistrate, Juvenile Justice Board; who, vide order dated 20.07.2019 declared the petitioner as a `child in conflict with law'. The date of birth of `X' has been verified from her school records, as per status report filed in the present matter.
4.3. The offence that is subject matter of the present FIR is alleged to have been committed between 25.07.2020 and 18.02.2021. It was on 25.07.2020 that `X's mother reported her missing. As per the allegations in the FIR, when she went missing, `X' was around 17 years of age. At that time the petitioner was about 18 years of age.
4.4. On 16.10.2021 charges were framed against the petitioner under section 376(2) IPC and section 6 POCSO Act. The matter is pending trial, and is at the stage of recording prosecution evidence.
4.5. In her statement dated 03.03.2021 recorded under section 164 Cr.P.C. `X' has said the following:
4.6. In her court deposition recorded on 04.04.2022, `X' who is now `major', has deposed on oath as follows:
"On Oath
I got married with Bijender Mehto on 10.04.2019 near Ambala, Haryana. Bijender took me there from Laxmi Nagar. I called accused Bijender after calling him at Laxmi Nagar. I reached Laxmi Nagar by Auto. I did not inform anyone in my family regarding the same. I left my home at about 7.00 p.m. After marriage, I used to reside in Haryana in a room, however, I do not remember the place. It is overnight journey to reach at Haryana from Delhi. I used to live with the accused in the same city where I got married. My mother lodged complaint. Police brought me and Bijender to Delhi. My mother and bade papa also came there with the police. Police took me to Dilshad Garden. Police also took me to SDN hospital. I returned back from Haryana on 25.04.2019. When I left the house with the Bijender Mehto, I was studying in class 9th. At that time I was studying in 9th class. I told to the police that I went with Bijender Mehto at my own will. My statement was recorded my (sic) Judge Aunty. Police had taken me to the Court for recording my statement.
I went with Bijender Mehto four times i.e. in 2019 and on 25.07.2020. On 25.07.2020, Bijender Mehto took me with him from Laxmi Nagar to Mayapuri, Delhi near railway station. I reached Laxmi Nagar by auto. Thereafter, I came back in the year 28.02.2021. I used to reside in Jhuggi in Mayapuri alongwith Bijender Mehto. Police brought us from there. Police took me to the SDN hospital, Shahdara. My statement was not recorded before Judge Sahab in 2021. I have a child through Bijender Mehto. I gave birth to a child on 02.06.2021. I again went to SDN hospital with the IO of this cas
The court emphasized that factors including the nature of the relationship, the victim's current age, and her willingness to support the accused can influence bail decisions in sexual offence cases.
The importance of addressing allegations and societal context in bail decisions.
The court established that a romantic relationship's dynamics and the victim's age, when determined through ossification tests, might mitigate the gravity of charges under the POCSO Act, affecting ba....
The court considered the seriousness of the offences alleged, the threat posed by the accused, and the applicability of Section 29 of the POCSO Act in determining the grant of bail.
The main legal point established is that the court must consider the real-life considerations and the impact of Section 29 of the POCSO Act when assessing bail applications in cases involving sexual ....
Consent to accompany, wander or to have dinner and to stay in a room does not, in all eventuality, amount that there is consent of a girl or woman to have sexual intercourse.
The central legal point established in the judgment is the significance of evidence, age determination, and the presumption as to certain offences under the POCSO Act in the context of a bail applica....
The consensual nature of the relationship, the age of the accused and the prosecutrix, and discrepancies in the statements given at different times are crucial factors in considering bail under POCSO....
Consent to engage in a sexual relationship is not vitiated by a promise of marriage unless the promise is proven to be made in bad faith or with no intention to adhere to it from inception.
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