Consensual Teenage Relationship: Delhi High Court Grants Bail To Accused In POCSO Case As Victim Offers To Stand As ‘Surety’ For Him

Delhi High Court has granted bail to a 20-year-old in a POCSO case after the victim — the wife of accused, told the court that they were in a consensual relationship at the time of alleged offence, and is offering to stand as surety for him in case he is granted bail.

In the decision on the bail application moved by the accused,  Justice Anup Jairam Bhambhani said the offences under Section 376 (2) and Section 6 POCSO Act are alleged to have been committed when the victim, who is over 19 years old now, was at the cusp of majority.

"In her statement recorded under section 164 Cr.P.C. as also in her court deposition, 'X' has consistently maintained that she had accompanied the petitioner by her own free volition; and that she got married to him; and had lived with him and also got impregnated by him," the court observed.

The court further said that the victim has admitted that she has had a child with the petitioner and that she took the pregnancy to term and gave birth to the child. 

"All of which appears to have been done willingly. At least prima-facie, the foregoing factual scenario admits of only one inference, viz. that there was a consensual physical relationship between the two," it added.

The court in the order noted that it has interacted with the victim at length and "found that ‘X’ completely and wholeheartedly endorses and affirms whatever has come to be recorded in the course of investigation and trial, as summarised above".

The petitioner and the victim are said to have known each other since they were in school together. While the petitioner at present is 20 years, 11 months and 11 days old, the victim is 19 years, two months and 17 days old. The victim had earlier also gone with the petitioner in 2019 and "married" him in Haryana's Ambala district, as per deposition recorded in April 2022. She also had abortion in 2019 on the asking of her mother. 

On July 25 in 2020, the victim's mother reported her missing. The victim was around 17 years old at that time and the petitioner was 18 years old. She was recovered by police from a Jhuggi in February 2021 where she was living with the petitioner. She gave birth to the child in June 2021.

In October 2021, charges were framed against the petitioner under Section 376(2) IPC and Section 6 POCSO Act. The trial is at the stage of recording prosecution evidence. Though the victim's mother has supported the prosecution case in her deposition, the victim has told the trial court that she had willingly gone with the petitioner. She and her child are presently living with the petitioner's parents.

Seeking bail on the basis of these facts, the counsel representing the petitioner argued before the high court that it is a case of 'juvenile romance' and that there was no element of deception, coercion or pressure. However, the State argued that serious offences are alleged and enlarging the accused on bail would prejudice the prosecution case.

The court said since chargesheet has been filed and charges also have been framed, Section 29 POCSO Act would get trigged, raising the threshold of satisfaction required for grant of bail. However, the court relied upon the decision in Dharmander Singh @ Saheb vs. The State (Govt. of NCT, Delhi where the high court in 2020 had set-down a criteria for considering such matters at the post-charge stage.

Justice Bhambhani in Dharmander Singh @ Saheb in 2020 had said that in addition to the nature and quality of the evidence before it, the court can also factor in certain real life considerations to tilt the balance against or in favour of the accused, while deciding a bail plea at the post-charge stage. Those aspects are as under: 

a. the age of the minor victim : the younger the victim, the more heinous the offence alleged;

b. the age of the accused : the older the accused, the more heinous the offence alleged;

c. the comparative age of the victim and the accused : the more their age difference, the more the element of perversion in the offence alleged;

d. the familial relationship, if any, between the victim and the accused : the closer such relationship, the more odious the offence alleged;

e. whether the offence alleged involved threat, intimidation, violence and/or brutality;

f. the conduct of the accused after the offence, as alleged; g. whether the offence was repeated against the victim; or whether the accused is a repeat offender under the POCSO Act or otherwise;

h. whether the victim and the accused are so placed that the accused would have easy access to the victim, if enlarged on bail : the more the access, greater the reservation in granting bail;

i. the comparative social standing of the victim and the accused :

this would give insight into whether the accused is in a dominating position to subvert the trial;

j. whether the offence alleged was perpetrated when the victim and the accused were at an age of innocence : an innocent, though unholy, physical alliance may be looked at with less severity;

k. whether it appears there was tacit approval-in-fact, though not consent-in-law, for the offence alleged;

l. whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise;

m. other similar real-life considerations.

Justice Bhambhani said when tested on the criteria set-out above, "the circumstances of the present case would favour grant of bail to the petitioner".

"In fact, in what would make this case sui-generis, upon being queried by the court, ‘X’ has even offered to stand ‘surety’ for the petitioner if he is admitted to bail, since it would appear that ‘X’ would perhaps be the only local surety available to the petitioner, who otherwise hails from Bihar," the court said.

Granting bail to the petitioner, the court clarified that it is only noting that the prosecutrix is herself willing to to stand surety for the petitioner but not making it a condition for grant of bail. The court also recorded that Advocate Sampanna Pani appeared pro bono for the victim.

Title: X v. GNCTD 

Citation: 2023 LiveLaw (Del) 94