The Delhi High Court has granted regular bail to a petitioner accused under the POCSO Act, observing that while a minor’s consent has no legal value, a prima facie romantic relationship and the “intellectual capacity” of a victim near the age of majority are relevant considerations for bail.
Justice Vikas Mahajan passed the order in the case involving an accused who had been in judicial custody for approximately two years and five months.
Background of the Case
The case stemmed from an FIR registered on August 12, 2023, at PS Rajinder Nagar under Sections 363/366A/376 of the Indian Penal Code (IPC) and Section 4 of the POCSO Act, 2012. The complainant alleged that his daughter, initially claimed to be aged about 14 and a half years, went missing.
During the investigation, the prosecutrix and the petitioner were traced to a hotel in Agra on August 18, 2023. Following their return, the prosecutrix’s statement was recorded under Section 164 of the Code of Criminal Procedure (CrPC). The petitioner was arrested on August 20, 2023.
A crucial aspect of the investigation involved the determination of the prosecutrix’s age, as she had no school records. A Bone Ossification Test conducted on September 21, 2023, estimated her age to be “more than 14 years but less than 17 years.”
Arguments Placed Before the Court
Mr. Neeraj Kumar Jha, counsel for the petitioner, argued that the case was one of a consensual romantic relationship. He submitted that in her Section 164 CrPC statement, the prosecutrix admitted she loved the petitioner and had accompanied him to Agra of her own free will. He further highlighted that in her cross-examination, she admitted to going with the petitioner voluntarily.
Opposing the bail plea, Mr. Tarang Srivastava, APP for the State, and Ms. Vrinda Bhandari, counsel for the prosecutrix, contended that the victim was a minor. They argued that in her examination-in-chief, the prosecutrix testified that the petitioner had established sexual relations with her. The prosecution relied on Supreme Court judgments, including X v. State of Rajasthan and Anr. (2024) and Raju Yadav v. State of NCT of Delhi.
Judicial Analysis and Observations
Justice Mahajan began by addressing the determination of the victim’s age. Relying on the Division Bench decision in Court on its Own Motion v. State of NCT of Delhi (2024), the Court held that when relying on a bone ossification test in sexual assault cases, the “upper age given in ‘reference range’ be considered as age of the victim.” Consequently, the Court proceeded with the assumption that the prosecutrix was 17 years old.
The Court acknowledged the statutory position regarding consent but distinguished the considerations for bail. Justice Mahajan observed:
“Undoubtedly, the prosecutrix was minor at the time of incident, therefore, her consent for sexual relations, if any, between them, will have no value in the eyes of law, but taking her age as 17 years, it prima facie appears that prosecutrix was of sufficient maturity and intellectual capacity, and her romantic involvement with the petitioner is one of the consideration which tilts the balance in favour of the petitioner for the purpose of granting bail.”
The Court referenced the decision in Dharmender Singh v. State (2020), noting that while Section 29 of the POCSO Act raises the threshold for bail, the court must factor in “real life considerations,” such as the comparative age of the victim and accused and the nature of their relationship.
The Court also cited Riyaz v. State & Anr. (2024), observing that cases of romantic involvement between adolescents often fall into a “legal grey area” where the law is sometimes misapplied in genuine love affairs.
Distinguishing the precedents cited by the prosecution, the Court noted that X v. State of Rajasthan involved gang rape where witnesses had not been examined, whereas, in the present case, the material witnesses, including the prosecutrix, had already deposed. Similarly, Raju Yadav was distinguished as it involved a conviction appeal and a repeat offence, unlike the present bail application where the petitioner has no criminal antecedents.
Decision
Taking into account that the petitioner had been in custody since August 23, 2023, and that the investigation was complete with material witnesses examined, the High Court granted regular bail.
The petitioner was directed to furnish a personal bond of Rs. 25,000 with one surety of the like amount. Conditions imposed included not leaving the City/NCR region without informing the SHO and keeping his mobile number active and available to the Investigating Officer.
The Court clarified that these observations were limited to the decision on the bail application and should not affect the merits of the trial.
Case Details:
Case Title: Varun Kumar Singh v. State (SHO Rajinder Nagar)
Case No.: Bail Appln. 3015/2025
Coram: Justice Vikas Mahajan
