Court observes prosecutrix's voluntary involvement and lack of force in the alleged incident, granting bail with strict conditions
In a significant decision dated 30th July 2024, the Delhi High Court, presided over by Justice Anup Jairam Bhambhani, granted regular bail to Hareram, the accused in a case registered under Section 376(2)(n) of the Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offences Act (POCSO), 2011. The case, registered at Sarai Rohilla Police Station, concerned allegations of sexual assault involving a minor prosecutrix.
The Court meticulously examined the facts as set out in the First Information Report (FIR) and the prosecutrix's statement recorded under Section 164 of the Criminal Procedure Code (Cr.P.C.). It was noted that both the accused and the prosecutrix were minors at the time of the alleged incidents in May and June 2022. The prosecutrix's date of birth was recorded as 8th September 2006, making her about 16 years old during the events, while the accused was approximately 20 years old at the time of the bail hearing.
A key factor influencing the Court's decision was the consensual nature of the relationship between the accused and the prosecutrix. The prosecutrix herself admitted to voluntarily engaging in physical relations with the accused, describing them as boyfriend and girlfriend. The incidents occurred within the prosecutrix's home, and no allegations of force, violence, or coercion were made. Furthermore, the prosecutrix had invited the accused into her home when no one else was present and had consented to the relationship, although she was legally a minor and thus incapable of giving valid consent under the law.
The Court referenced the precedent set in Dharmander Singh @ Saheb v. State (Govt. of NCT, Delhi) (2020 SCC Online Del 1267), which clarified that Section 29 of the POCSO Act, while stringent on bail, does not impose an absolute bar on granting bail. The Court highlighted the importance of real-life considerations in bail decisions, such as the nature of the relationship, absence of violence, and the accused's conduct during custody.
The petitioner had spent nearly two years in judicial custody with satisfactory conduct and no other criminal allegations against him. The Court emphasized that the prosecutrix was mature for her age, having worked in a factory, and that the relationship, while illegal due to her minor status, was consensual in practice.
Accordingly, the Court allowed the bail petition, imposing strict conditions to ensure the integrity of the trial and protection of the prosecutrix and witnesses. Conditions include furnishing a personal bond of Rs. 20,000 with two sureties, providing active contact details to the Investigating Officer, surrendering any passport to prevent absconding, prohibition on contacting prosecution witnesses or tampering with evidence, and mandatory informing of any changes in residence or contact information.
The Court made clear that the bail order should not be construed as an expression of opinion on the merits of the case, which remains sub judice.
This judgment underscores the judiciary's nuanced approach in POCSO cases, balancing the strict legal provisions protecting minors with the realities of consensual relationships between young persons close in age, while ensuring safeguards to protect the interests of justice.
Bottom Line:
Regular bail granted to an accused under Section 376(2)(n) IPC and Section 6 of POCSO Act considering the consensual nature of the relationship between the accused and the prosecutrix, despite the prosecutrix being a minor at the time of the alleged incident.
Statutory provision(s):
Indian Penal Code, 1860 Section 376(2)(n), Protection of Children from Sexual Offences Act, 2011 Section 6, Criminal Procedure Code, 1973 Section 439, Section 164
Hareram v. State of Delhi, (Delhi) : Law Finder Doc Id # 2979218
