It is most striking to note that while raising its strongest voice against the most blatant, blind, brutal and baseless misuse of POCSO cases, the Delhi High Court in a most learned, laudable, landmark, logical and latest oral judgment titled Sahil vs The State NCT of Delhi in Bail Appln. 2419/2023 in Neutral Citation No.: 2024:DHC:6100 that was pronounced most recently on August 14, 2024 has minced absolutely just no words to observe that POCSO Act is being misapplied as cases are being filed at the behest of the girl’s family who object to her friendship and romantic involvement with a young boy. It must be mentioned that while expressing utter disgust at the most brazen and rampant misuse, the Single Judge Bench comprising of Hon’ble Mr Justice Subramonium Prasad said that in such cases, young boys, who have genuinely fallen in love with girls are just below 18 years of age, are languishing in jails. It must be noted that the Delhi High Court made the observations while granting bail to a youngster who is in a jail for three years in a POCSO case registered in 2021 by a girl’s mother.

By all accounts, it is high time and where it is found that POCSO case is being misused or abused, the girl’s family must definitely be also made to face the most strictest punishment as this is the only way to check strange, senseless and sinister abuse of such laws meant for the safety of girls and not for gross misuse! But for this to happen, it is imperative that the lawmakers and Centre must now step forward to amend the laws accordingly. The ball is clearly in their court now!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Subramonium Prasad sets the ball in motion by first and foremost putting forth in para 1 that, Petitioner has approached this Court seeking bail in FIR No.858/2021, dated 04.10.2021, registered at Police Station Jahangir Puri initially for offences under Sections 363 IPC which was later on converted to offences under Sections 363/366/376 IPC and Section 6 of the POCSO Act.

To put things in perspective, the Bench envisages in para 2 while delving on the facts of the case stating that:
The facts, in brief, leading to the present Petition, are that 04.10.2021 a complaint was registered by the mother of the Prosecutrix stating that her daughter, the Prosecutrix herein, aged about 17 years, left her house on 30.09.2021 at about 2:30 PM and since then she has not come back and the Complainant suspects that her daughter might have been lured by some unknown person. On the said complaint the present FIR was registered and the investigation was carried out. During investigation it was revealed that earlier also the Prosecutrix went missing from her home twice and in this regard FIR No. 219/2021 and FIR No. 444/2021 both under section 363 IPC were registered but later on the Prosecutrix returned back home. The investigation further revealed that the Prosecutrix was living with the Petitioner herein somewhere in Narela and on 18.12.2021 the Prosecutrix was found.

As we see, the Bench then discloses in para 3 that:
It is stated that before Doctors, the Prosecutrix gave a statement that she had gone with the Petitioner herein, who is her boyfriend, of her own free will and thereafter they got married and that now she is pregnant. In her statement it was further stated by the Prosecutrix that her family members were aware about her marriage with the Petitioner and her mother had told her that she will accept the marriage only if the Petitioner converts to Muslim religion but since the Petitioner refused to convert to Muslim religion, the mother of the Prosecutrix lodged the complaint against the Petitioner. It is stated that in her statement under Section 161 Cr.P.C also, the Prosecutrix stated that she went to the house of the Petitioner on her own will and got married with the Petitioner and they lived together as husband and wife and established physical relations with the Petitioner with her own free will. It is stated that since the Prosecutrix was minor, Sections 366/376 IPC and Section 6 of the POCSO Act were added in the FIR and the Petitioner was arrested on 19.12.2021.

Do note, the Bench then states in para 4 that:
In her statement under Section 164 Cr.P.C, the Prosecutrix has stated that about 2 months back she along with her friend had gone out of the house for eating Gole Gappas and while they were eating Gole Gappas, the Petitioner herein came there in an auto and took her to a room at Safiabad, Narela in the said auto and thereafter he committed rape on her. After completion of investigation, Charge-sheet has been filed.

Needless to say, the Bench states in para 8 that:
Heard the Counsels for the Petitioner and the Prosecutrix and the learned APP for the State and perused the material on record.

Be it noted, the Bench notes rightly in para 9 that:
Material on record indicates that at the time of incident, the Prosecutrix was about 17 years old and the Petitioner was about 21 years old. A reading of the statements of the Prosecutrix given before the Doctors, her statement under Section 161 Cr.P.C and her statement under Section 164 Cr.P.C shows a marked change in the stand of the Prosecutrix. In her statement before the doctors and in her statement under Section 161 Cr.P.C. the Prosecutrix has stated that she has gone with the Petitioner on her own while in her statement under Section 164 Cr.P.C the Prosecutrix has stated that the Petitioner took her forcefully. This Court can also take judicial notice of the fact that the Prosecutrix has eloped from her house twice and has returned back. This Court is of the opinion that the present case is of love affair between the Prosecutrix and the Petitioner. Consensual sex between girls who are just below the age of 18 years and boys who are just above 20 years has been in legal grey area because the consent given by a minor girl cannot be said to be a valid consent in the eyes of law.

As it turned out, the Bench stipulates in para 10 that:
At this juncture, this Court is not going into the question as to whether the Petitioner has committed offences under Sections 363/366/376 IPC and Section 6 of the POCSO Act or not. This Court is only concerned with as to whether a youngster who is in jail for the last three years should be granted bail or not in light of the fact that the Prosecutrix has changed her stand in her statements given under Section 161 Cr.P.C and 164 Cr.P.C.

Most significantly and most forthrightly, the Bench deems it fit to propound in para 11 postulating that:
This Court has been constantly seeing that POCSO cases are being filed at the behest of the girl’s family who object to her friendship and romantic involvement with a young boy and the law is being misapplied in such cases which results in young boys, who have genuinely fallen in love with girls who are just below 18 years of age, languishing in jails.

It would be worthwhile to note that the Bench notes in para 12 that:
The age of the Prosecutrix, her statement given to the doctors, her statement under Section 161 Cr.P.C and the fact that she has been found missing on two earlier occasions as well, tilt the case in favour of the Petitioner herein for grant of bail.

Briefly stated, the Bench while citing a recent and relevant case law points out in para 13 that:
In Anant Janardhan Sunatkari v. State of Mahrashtra, (2021) SCC Online Bom.136, the Bombay High Court, while dealing with a case involving a 19 year old boy who had been convicted of rape of a 15 year old girl, released the accused on bail and has observed as follows:

13. I am also conscious of the fact that consensual sex between minors has been in a legal grey area because the consent given by minor is not considered to be a valid consent in eyes of law.

In a similar vein, the Bench also mentions in para 14 that:
A similar view has been taken by the Gujarat High Court in Jayantibhai Babulbhai Alani v. State of Gujarat, (2018) SCC Online Guj. 1223, wherein the High Court has observed as under:

7. In the present case, the prosecutrix is 17 years 11 months old and the accused is 18 years old. It appears from the record and the statement of the prosecutrix dated 07.04.2018 that the prosecutrix was in love with the applicant and left the home of her own and moved with the applicant at various places. These are the mitigating factors and therefore, present application deserves consideration.

Quite significantly, the Bench hastens to add in para 15 stating that:
A co-ordinate Bench of this Court in Dharmander Singh v. State, (2020) SCC Online Del 1267, has laid down the parameters that are to be followed when considering bail of a person accused under the POCSO Act, and the same reads as under:

77. Though the heinousness of the offence alleged will beget the length of sentence after trial, in order to give due weightage to the intent and purpose of the Legislature in engrafting section 29 in this special statute to protect children from sexual offences, while deciding a bail plea at the post-charge stage, in addition to the nature and quality of the evidence before it, the court would also factor in certain real life considerations, illustrated below, which would tilt the balance against or in favour of the accused:

1. The age of the minor victim: the younger the victim, the more heinous the offence alleged;
2. The age of the accused: the older the accused, the more heinous the offence alleged;
3. The comparative age of the victim and the accused: the more their age difference, the more the element of perversion in the offence alleged;
4. The familial relationship, if any, between the victim and the accused: the closer such relationship, the more odious the offence alleged;
5. Whether the offence alleged involved threat, intimidation, violence, and/or brutality;
6. The conduct of the accused after the offence, as alleged;
7. Whether the offence was repeated against the victim; or whether the accused is a repeat offender under the POCSO Act or otherwise;
8. 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;
9. 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;
10. 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;
11. Whether it appears there was tacit approval-in-fact, though not consent-in-law, for the offence alleged;
12. Whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise;
13. Other similar real-life considerations.

78. The above factors are some cardinal considerations, though far from exhaustive, that would guide the court in assessing the egregiousness of the offence alleged; and in deciding which way the balance would tilt. At the end of the day however, considering the myriad facets and nuances of real-life situations, it is impossible to cast in stone all considerations for grant or refusal of bail in light of section 29. The grant or denial of bail will remain, as always, in the subjective satisfaction of a court; except that in view of section 29, when a bail plea is being considered after charges have been framed, the above additional factors should be considered. (emphasis supplied).

It is worth noting that the Bench notes in para 16 that:
The statement given by the Prosecutrix before the doctors that her mother knew about her relationship with the Petitioner and that the FIR has been lodged by her mother only because the Petitioner herein had refused to change his religion, gives an indication that the present FIR was lodged at the behest of the parents of the Prosecutrix who did not approve of the relationship between the Petitioner and the Prosecutrix. This Court can also take judicial notice of the fact that after the Prosecutrix was found and returned to her parents, the Prosecutrix would have been pressurized by her parents to change her statement.

Most brilliantly, it cannot be lost sight that the Bench then expounds in para 17 that:
This Court is of the opinion that if the Petitioner continues to be in jail, the chances of the Petitioner coming out as a hardened criminal are very high. The future of a youngster cannot be ignored by this Court at this juncture.

Most remarkably, the Bench while granting bail stipulates and directs in para 18 that:
Accordingly, considering the facts and circumstances of the present case, and also considering the age of the Prosecutrix and the Petitioner herein, the fact that the Prosecutrix has changed her stand in her statements and the fact that she has been found missing on two earlier occasions as well, and also the fact that the Petitioner is not of such strata that he would be in a position to influence the Prosecutrix, this Court is inclined to grant bail to the Petitioner on the following conditions:

1. The petitioner shall give a security in the sum of Rs.20,000/- with two sureties in the like amount to the satisfaction of the Trial Court;
2. The Memo of Parties shows that the petitioner is residing at Gali No.1, Om Vihar, Bankner, Narela, Delhi. The Petitioner is directed to continue to reside at the same address and in case there is any change in the address of the Petitioner, the Petitioner is directed to intimate the same to the Investigating Officer.
3. The Petitioner is directed not to leave the city of Delhi without prior permission of the concerned Court;
4. The Petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times;
5. The petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses in any manner;
6. The petitioner shall attend all the Court proceedings.
7. In case it is established that the petitioner has tried to influence the witnesses or tamper with the evidence, the bail granted to the petitioner shall stand cancelled forthwith.

What’s more, the Bench directs in para 19 that:
The petition is disposed of along with all the pending application(s), if any.

Finally and for sake of clarity, the Bench then concludes by stating in para 20 that:
Be it noted that this Court has not made any observations on the merits of the case.

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh