* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 17^th January, 2022 Pronounced on: 25th January, 2023 + CRL.M.BAIL. 816/2022 in CRL.A. 32/2021 NANHE ..... Appellant Through: Ms. Rakhi Dubey, Adv.

versus STATE (GNCT OF DELHI) ..... Respondent Through: Mr. Ritesh Kr. Bahri, APP for the State with SI Himanshu.

CORAM:

HON'BLE MR. JUSTICE ANISH DAYAL % JUDGMENT ANISH DAYAL, J.

1. This application has been filed for regular suspension of sentence till the final disposal of the appeal which has assailed the judgment of conviction dated 24^th July 2019, and order on sentence dated 26^th July 2019 in proceedings related to FIR No.142 of 2013 P.S. Welcome under Sections 363, 366, 376, IPC and Section 6 of POCSO. As per the order on sentence the learned Trial Court awarded RI for a period of 10 years for offense punishable under Section 6 POCSO and a fine of Rs. 10,000 with (SI for 3 months in default of payment of fine). The appellant has undergone custody for a period of about 5 years, 3 months and as per the Nominal Roll, there are no previous involvements and the jail conduct has been satisfactory. The Signature Not Verified Digitally Signed CRL.M.Bail.816/2022 in CRL.A. 32/2021 Page 1 of 5 appellant has not sought any interim bail or parole throughout the period of incarceration.

2. Learned counsel for the appellant has contended that as per the case of the prosecution, on 18^th June 2012, the parents of the prosecutrix had gone to the hospital for treatment and when they returned they found their daughter missing. After 10 months of the missing complaint being filed, an FIR was registered under Section 363 IPC. However, on 10^th July 2013, the victim was found at the appellant’s house and statement was recorded under Section 164 Cr.P.C. The victim clearly stated that they were in a romantic relationship and on 18^th June 2012, she had gone to Kashipur, along with the appellant and performed the nikah ceremony and now she had a child of about four months. She had stated that she went with her consent and wanted to live with the appellant. However, in these circumstances Section 366/376 IPC and Section 6 POCSO were added to the FIR.

3. Learned counsel for the appellant submitted that the victim was 14 years old at the time she eloped with the appellant she was now married and had a child and as per Muslim Law, a Muslim girl can get married after attaining the age of puberty. Further, the victim was found missing on 18^th June 2012, but had later approached the Hon’ble High Court of Allahabad for seeking protection from the parents, which petition was disposed of vide order dated 10^th May 2013. The parents had approached the police after 10 months clearly showing that the parents of the victim knew the whereabouts of the victim and then made a complaint in order to pressurize her and the appellant. It was further contended that the victim had gone out of her Signature Not Verified Digitally Signed CRL.M.Bail.816/2022 in CRL.A. 32/2021 Page 2 of 5 free will on 18^th June 2012 while the POCSO Act itself came into force on 14^th November 2012 and therefore it is not applicable.

4. Learned APP countered the submissions of the appellant and stated that even though the FIR was registered on 17^th April 2013, the act which formed the basis of the offence was continuing. The victim was also hurt by the said act and stated that even though the appellant has not assaulted her, she does not wish that he would be released on bail.

5. Notwithstanding the vague submission made by victim, it is evident that the victim had eloped with the accused voluntarily and had married the appellant as per her own wish. Without adverting to the merits of the matter, a perusal of the testimony of PW-2, the prosecutrix would also show that there are contradictions in the same and the apprehension of the appellant that she has been made to testify due to the pressure of the parents, cannot be ruled out. In her testimony, she further states that she had not complained when s