The immateriality of consent in cases involving minors and the potential misuse of sensitive material influenced the court's decision to dismiss the anticipatory bail petition.

JUDGMENT :

JASGURPREET SINGH PURI, J.

1. The present case has been heard through video conference.

2. This is a petition filed under Section 438 Cr.P.C. for the grant of anticipatory bail to the petitioner in case FIR No.36 dated 12.4.2021, under Section 406 IPC as well as under Section 8 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, registered at Women Police Station, District Ambala.

3. As per the FIR, which has been attached as Annexure P-1 along with the present petition, the same was lodged on the basis of the statement made by the complainant who is stated to be 16 years of age and is studying in 12th Class. As per the FIR, in August 2019 the complainant who is a minor girl of 16 years received a request from Notty Varun (petitioner) on Snapchat which was accepted by her and thereafter, they started talking with each other on mobile phone and developed friendship and started meeting with each other. As per the allegations, thereafter the petitioner started pressurising the complainant to send her photo to him and under pressure, she sent her normal photo and thereafter, the petitioner started pressurising her for her nude and semi-nude photos. On the asking of the petitioner, she had sent her nude and semi-nude photos through Snapchat on the phone of the petitioner. Thereafter, the petitioner started making excuses by saying that he is in need of some money. He took away her gold chain in which pendant of God Shiva was annexed. This all happened in February 2021 and thereafter, the petitioner had also taken away her mobile phone, Guitar and Head Phone on the pretext that he will return it soon but the same was not returned till date and the petitioner used to propose her for marriage. In December 2020, the petitioner took away her on an excuse that he will let her meet his grand-mother and then they went to Sector 10, where one old lady was sitting and there the petitioner left the complainant to meet her and then they returned back. In August 2020, the petitioner took the complainant in a white car at about 7:00 P.M. and kept her in a hotel and molested her (wrongly translated by petitioner the expression 'ched chhar' as eve-teased) and on the next day, the petitioner left her at her house and kept talking to her on phone.

4. The learned counsel for the petitioner has submitted that the petitioner has been falsely implicated in the present case and no offence was made out against him either under the POCSO Act or under Section 406 IPC. He has submitted that there was a consensual relationship between the petitioner and the complainant girl and the learned counsel for the petitioner has even referred to the transcript of the recorded conversation vide Annexure P-4 to show that there was a consent between the petitioner and the girl and therefore, no offence is made out against the petitioner. He has submitted that the FIR has been lodged under pressure from the parents of the girl and therefore, he has prayed for the grant of anticipatory bail to the petitioner.

5. Learned counsel for the petitioner has referred to the judgment of the Hon'ble Supreme Court in Arnesh Kumar Vs. State of Bihar 2014 (8) SCC 273, to contend that where the offence is punishable with imprisonment for a term which is less than 7 years then normally the police shall restrain itself from arresting the accused.

6. Notice of motion in this case was issued on 13.5.2021 and the learned State counsel had sought time to seek instructions and to file affidavit. Thereafter, a reply by way of affidavit of Mr.Madan Lal, HPS, Deputy Superintendent of Police, Ambala, District Ambala, was filed on behalf of State of Haryana on 19.5.2021.

7. Learned State counsel while opposing the grant of anticipatory bail to the petitioner has referred to the contents of the affidavit which has been filed by the Deputy Superintendent of Police, Ambala, District Ambala. He has submitted that, as a matter of fact, the petitioner who is a major person had all