ORDER

1. This first bail application under section 439 of the Code of Criminal Procedure has been filed on behalf of the applicant for grant of bail in connection with Crime No.158/2022 registered at Police Station Sanoudha, District Sagar (M.P.) for the offence punishable under sections 366Ka, 376, 376(2)(N) of the Indian Penal Code and section 3/4 and 5/6 of the Protection of Children from Sexual Offences Act. The applicant is in jail since 17.5.2022.

2. As per the case of prosecution, on 27.4.2022 the cousin brother of the prosecutrix lodged a missing person report before the police stating therein that he has every doubt that the applicant not only taken away the prosecutrix but also abducted her. The police after making an enquiry, recovered the prosecutrix on 17.5.2022 from the possession of the applicant. Subsequently, the statement of prosecutrix has been recorded wherein she has stated that the applicant after giving promise of marriage, developed physical relation with her. Therefore, the offence was registered against the applicant and arrested on 17.5.2022.

3. Learned counsel for the applicant submits that the applicant and the prosecutrix were known to each other since last six months and the applicant used to visit her house to teach her Quran. He submits that the prosecutrix in her statement has stated that since the applicant has given an assurance of marriage to her, therefore, she went to Jhansi with him and from there they went to Delhi where they stayed in a rental room and thereafter they came to Agra where they stayed for a period of 15 days and during that period physical relation developed between them. The prosecutrix has also stated that she was not aware of the fact that the applicant is already married and this fact came to her knowledge only when it was disclosed by the police. The counsel for the applicant further submits that though the prosecutrix at the time of incident was more than 15 years of age but she had gone with the applicant as per her own desire and she also developed physical relation with him. He submits that the applicant has not forcefully developed physical relation. The counsel for the applicant after placing reliance upon a judgment of the Supreme Court reported in 2020 SCC OnLine HP 2462 (Rohit Sharma v. State of Himachal Pradesh) and also the orders passed by the High Court of Punjab & Haryana at Chandigarh in CRWP-7426-2022 (O&M) parties being Javed v. State of Haryana and others, CRWP-5744-2022 (Gulam Deen and another v. State of Punjab and others, CRWP-12067-2021 (Nargis and another v. State of Punjab and others) so also an order of passed by the High Court of Karnatak at Bengaluru reported in 2022 LiveLaw (Kar) 436 parties being Mohammad Waseem Ahmad v. State submits that in these cases, it has been observed that the marriage of a Muslim girl is governed by Muslim Personal Law and she is capable to enter into marriage with a person of her own choice and, therefore, under the circumstances when the prosecutrix is more than 15 years of age, it can be presumed that she has attained the age of majority for the purpose of marriage and as per Muslim Law, a boy or a girl who attained puberty is at liberty to enter into marriage with anyone to whom he/she likes and their guardians have no right to interfere if the match is equal. In the aforesaid cases, the High Courts have taken view relying upon Article 195 from the book of Mohammedan Law and have observed that as per Muslim Law after 15 years of age, a person attains the age of majority and as such, if physical relation is developed that would not be treated to be a rape and in such circumstances, if a person is tried under the provisions of the POCSO Act, he can be considered to be granted bail.

4. Shri Punit Shroti, learned Panel Lawyer appearing for the respondent/State has opposed the submissions made by the counsel for the applicant and submitted that here in this case if the statement of 161 of the prosecutrix is seen, it