The court established that consensual relationships among adolescents should be carefully evaluated under the POCSO Act to avoid unjust criminalization.

ORDER (ORAL)

W. Diengdoh, J. - This is an application under Section 439 Cr.P.C made with a prayer for grant of bail to the accused person Shri. Pynskhemborlang Masharing connected with Special POCSO Case No. 20 of 2023 under Section 354, 354B, 361, 363, 376(1), 375(2)(j), IPC read with Section 3(a)/4/7/8 of the POCSO Act pending before the court of the learned Special Judge, (POCSO), Nongpoh, Ri Bhoi District.

2. Heard Mr. L. Syiem, learned counsel for the petitioner who has submitted that on the basis of an FIR dated 23.05.2023 filed by the respondent No. 2 the accused person in question was arrested in connection with Women PS Case No. 29(05) of 2023 under Section 354(A)(i)/376(1) IPC read with Section 3(a)/4 POCSO Act, 2012.

3. The learned counsel has also submitted that the background facts leading to the arrest of the accused person in question was based on the statement of the survivor who had narrated to her mother, the respondent No. 2 herein about an incident which occurred sometime in the month of December 2022, where she was allegedly sexually assaulted by one person named Raymond Nongkhlaw. The survivor has further stated that in the month of March 2023 she had a love relationship with the accused person in question that is, Pynskhemborlang Masharing and was involved in sexual intercourse with him.

4. The fact that such incident of sexual relationship had happened was revealed only when the survivor had complained of stomach ache following which her mother took her to the hospital whereupon on being examined by the doctor, she was found to be pregnant. Thus, on revelation of the facts as stated herein above as regard her encounter with Shri. Raymond Nongkhlaw and the accused person herein in question, the said FIR was lodged and the matter after being investigated, the accused person in question was arrested on 27.05.2023 and is still in judicial custody till date.

5. The I/O has then filed his charge sheet with a finding that the accused person in question is found to be prima facie involved in the offence of sexual assault and is accordingly made to stand trial. The stage of the case before the trial court is for recording of evidence of the witnesses, the survivor had also been examined on 08.05.2024 as PW-1.

6. The learned counsel has submitted that on perusal of the statement of the survivor as well as her deposition before the trial court, what is evident is that though prima facie the act of sexual intercourse between the two can be assumed to have taken place, however the survivor has clearly stated that her relationship with the accused person in question is a love relationship, meaning that even if there had been any sexual intercourse between them, the same is consensual in nature.

7. Since the accused person in question is in custody for more than a year, the trial having commence, therefore investigation is complete, there would be no possibility of the accused person to tamper with the evidence at this stage. The fact that the accused person in question is also very young in age, his further incarceration would jeopardize his future among other things and as such, this application is preferred with a prayer for grant of bail to the accused person in question with any conditions that this Court may deem fit and proper to impose.

8. Mr. H. Kharmih, learned Addl. P.P has submitted that on perusal of the deposition of the survivor and the materials on record, this Court may judiciously apply its discretion to decide as to whether bail ought to be granted or not.

9. This Court has taken due note of the submission made and has also perused the petition and the accompanying annexures. The copy of the deposition of the survivor which has been brought on record by way of an affidavit has also been looked into by this Court.

10. The facts and circumstances of the case are peculiar in a sense that the survivor had been allegedly subjected to sexual assault by two persons on different occasions. However, as far as the case