IMPORTANT POINT
The legal point established is that while a consensual love relationship was acknowledged, the minor status of the girl rendered her consent invalid under the POCSO Act, leading to the denial of pre-arrest bail.

JUDGMENT

1. An FIR was lodged by the respondent No. 2 before the Officer In-Charge, Mahendraganj Police Station on 09.06.2022 by Shri. Ripon Sarkar with a report that his sister aged about 17 years was found missing and is suspected to be having a relationship with the petitioner herein and they are suspected to be staying at Pubergaon I, South Salmara Mankachar, Assam.

2. On receipt of the said FIR, the police registered Ampati Women P.S. Case No. 6(6) of 2022 under Section 366A IPC read with Section 5(l)/6 POCSO Act.

3. The petitioner who is the main accused in the said FIR has moved an application for grant of pre-arrest bail before the learned Special Judge, POCSO, South West Garo Hills District, Ampati which was rejected vide order dated 26.07.2022.

4. In due course, the petitioner has then approached this Court with this instant application under Section 438 Cr.PC for grant of pre-arrest bail in the said Ampati Women P.S. Case No. 6(6) of 2022.

5. Heard Mr. S. A. Sheikh, learned counsel for the petitioner who has submitted that the petitioner has been implicated in the said Ampati Women P.S. Case No. 6(6) of 2022 and as such, apprehending arrest has approached this Court with this application.

6. It is submitted that there is no question of kidnapping or sexual assault perpetrated against the alleged minor victim girl as the relationship between the petitioner and the girl is a love relationship and for which the parties have decided to get married and on 10.06.2022 as agreed, the petitioner went to the residence of the girl and together they left for Phulbari and from there, went on by boat to Dhubri. Only when they saw some policemen and were frightened that the petitioner, on 14.06.2022 accompanied the girl till Mankachar PS where she was brought by the police to Ampati.

7. The learned counsel has further submitted that the girl is more than 17 years but less than 18 years and as such her decision to go with the petitioner and to cohabit with him on the understanding that they will soon get married, is a well thought out decision and there being no actual violence committed or sexual assault perpetrated by the petitioner, therefore the petitioner cannot be implicated in the said case. However, since it is reliably learned that the police are looking for the petitioner, as such, he has approached this Court with this instant application with a prayer for grant of pre-arrest bail.

8. The learned counsel for the petitioner has also submitted that in the order of the learned Special Judge, POCSO, SWGH, Ampati it has been noticed that the statement of the alleged victim was recorded under Section 161 and Section 164 Cr.PC in which she has clearly stated that she is in a love relationship with the petitioner and that they plan to get married and therefore, the sexual relationship was consensual.

9. In view of such circumstances, it is prayed that the petitioner may be allowed pre-arrest bail and in the event of his arrest, he may be released on bail on any terms and conditions as deemed fit to be imposed by the Court.

10. Mr. H. Kharmih, learned Addl. PP has submitted that the copy of the case diary as directed is duly produced today and the same may be perused by this Court.

11. Mr. Kharmih has also submitted that from the records it is clearly seen and not denied by the petitioner or the victim girl that they had physical sexual relationship which is clearly an illegal action inasmuch as sexual relationship with a minor cannot be condoned under the POCSO Act and as such, at this juncture the petitioner may not be allowed to go on pre-arrest bail.

12. Upon hearing the parties, this Court on the basis of the averments made in this application and on perusal of the case diary produced today has observed that the petitioner and the alleged victim girl are in a love relationship and they have also vowed to get married when the girl come of age. This is evident from the statement of the girl under Section 161 and Section 164 Cr.PC.

13. The