JUDGMENT :

NEERJA K. KALSON, J.

1. The present petition has been filed under Section 439 Cr.P.C seeking the concession of regular bail to the petitioner in FIR No.158/2025, under Section 137(2) BNS and Section 6 of POCSO Act, registered at Police Station Shivaji Nagar, District Gurugram, or in the alternative interim bail till the determination of the issue of age of the petitioner, which according to the learned counsel for the petitioner is still pending consideration before the Competent Court.

2. Learned counsel for the petitioner submits that the petitioner has been in continuous judicial custody since 07.06.2025 in connection with the present case. It is further submitted that an earlier application seeking bail was dismissed by the learned trial Court vide order dated 21.01.2025. It is argued that the petitioner is a young boy and the matter assumes significance particularly in view of the submission of learned counsel for the petitioner that the issue relating to the determination of the age of the petitioner is still pending before the competent court and has not yet attained finality.

3. It is contended by the learned counsel for the petitioner that the FIR in the present case came to be registered on the complaint made by the mother of the alleged victim girl, wherein allegations were made that the petitioner had enticed away her daughter on two occasions. Learned counsel for the petitioner submits that the prosecution case is primarily founded upon the allegations made by the complainant-mother and not upon any clear and voluntary accusation made by the prosecutrix herself.

4. Learned counsel for the petitioner further submits that the mother of the petitioner has consistently asserted that the petitioner is a minor, and in support thereof certain documentary material including school record, Aadhaar card, educational records of siblings and documents relating to the marriage of the parents has been produced before the Court. It is the submission of learned counsel that these documents indicate that the petitioner was below 18 years of age at the relevant time.

5. It has been further argued by the learned counsel for the petitioner that despite the availability of such documentary material, the prosecution has relied mainly upon an ossification test report, which estimates the age of the petitioner to be between 18 to 20 years. Learned counsel submits that such medical estimation is only approximate in nature and cannot be treated as conclusive proof of age, particularly when documentary evidence regarding age is available.

6. Learned counsel has stated that the statement of the prosecutrix recorded under Section 183 BNSS before the learned Magistrate does not contain any categorical allegation of rape, coercion or use of force against the petitioner. It has also been pointed out that the medical examination report records that nothing abnormal was detected and no injuries, tear, bleeding or marks of force were found on the person of the prosecutrix. It is thus contended that the matter would ultimately require appreciation of evidence during the course of trial.

7. Another aspect which has been strongly emphasised by the learned counsel for the petitioner is that the issue relating to the determination of the age of the petitioner is still pending before the competent court. The petitioner relies upon certain documentary material to contend that he was below eighteen years of age at the relevant time, whereas the prosecution relies upon an ossification test report which only provides an approximate estimation of age. The said issue is yet to attain finality and shall ultimately be determined by the competent court in accordance with law.

8. Per contra, learned State counsel has opposed the bail application and submitted that on 19.04.2025, the petitioner had allegedly enticed away the daughter of the complainant, who was stated to be about 14 years of age, from her house. It is further submitted that the matter was reporte