DATE: 03/02/2026
COURT: High Court of Delhi
BENCH: Justice Vikas Mahajan
FACTS:
The present petition was filed under
Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking regular
bail in FIR No. 357/2023 dated 12.08.2023 registered under Sections 363, 366A,
376 IPC and Section 4 of the POCSO Act. The prosecution case is that on
12.08.2023, pursuant to a PCR call made by the complainant, it was alleged that
his daughter, aged about 14½ years, had gone behind Ganga Ram City Hospital to
get tea and was thereafter taken away by the petitioner, who was stated to be
her friend. During investigation, the prosecutrix and the petitioner were traced
to a hotel in Agra on 18.08.2023 and were brought back to Delhi. The petitioner
was arrested on 20.08.2023 and has remained in judicial custody since then.
During investigation, the prosecutrix
stated that she had voluntarily accompanied the petitioner to Agra, where they
stayed for 4–5 days, and described him as a family friend. Her statement under
Sections 161 and 164 CrPC, as well as her cross-examination during trial,
indicated that she had gone with the petitioner of her own free will and shared
a romantic relationship with him. As no documentary proof of age was available
since the prosecutrix had never attended school, a bone ossification test was
conducted, which assessed her age to be more than 14 years but less than 17
years. All material public witnesses, including the prosecutrix and her mother,
were examined during trial before the bail application was decided.
ISSUES:
The principal issues before the Court were
whether, despite the prosecutrix being a minor under the POCSO Act, the facts
of the case indicated a consensual romantic relationship relevant for the
purpose of bail; whether continued incarceration of the petitioner was
justified after examination of all material witnesses; and whether the
statutory presumption under Section 29 of the POCSO Act barred the grant of
bail at the post-charge stage in the facts and circumstances of the case.
JUDGEMENT WITH REASONING:
The Delhi High Court allowed the bail
application and granted regular bail to the petitioner, subject to conditions.
The Court held that the petitioner had made out a case for bail considering the
nature of the relationship between the parties, the age and maturity of the
prosecutrix, the absence of violence or coercion, the prolonged period of
custody of over two years, and the fact that all material witnesses had already
been examined. The Court clarified that its observations were confined to the
bail stage and would not influence the merits of the trial.
The Court first examined the nature of the
relationship between the petitioner and the prosecutrix by perusing the FIR,
statements under Sections 161 and 164 CrPC, and the cross-examination of the
prosecutrix, solely for the limited purpose of deciding the bail application.
It noted that the FIR itself acknowledged that the prosecutrix and the
petitioner were friends, and her statements consistently suggested that she had
accompanied the petitioner voluntarily. While reiterating that consent of a
minor has no legal validity under the POCSO Act, the Court took note of the prosecutrix’s
assessed age of 17 years (as per the upper limit of the bone ossification test,
following the Division Bench ruling in Court on its Own Motion v. State of NCT
of Delhi) and observed that she appeared to possess sufficient maturity and
intellectual capacity. The Court found that the facts prima facie reflected a
romantic relationship rather than an incident involving force, violence, or
brutality.
In addressing the impact of Section 29 of
the POCSO Act, the Court relied on precedents such as Dharmender Singh v. State
and Ajay Kumar v. State (NCT of Delhi), which emphasize a balancing of rights
at the post-charge bail stage. Applying the factors enumerated in Dharmender
Singh, the Court observed that the age difference between the parties was not excessive,
there was no allegation of threat or repeated sexual assault, the petitioner
had no criminal antecedents, and all material witnesses had already been
examined, eliminating any apprehension of witness tampering. The Court also
distinguished the authorities cited by the prosecutrix, holding that they
involved materially different facts such as gang rape, repeat offences, or
petitions for quashing rather than bail. Considering the petitioner’s prolonged
incarceration of over two years and five months, and applying the parameters
laid down in Prasanta Kumar Sarkar v. Ashis Chatterjee, the Court concluded
that continued detention was unwarranted and that bail could be granted subject
to appropriate safeguards.
ANALYSIS:
The decision reflects a careful balancing
by the Delhi High Court between the protective intent of the POCSO Act and the
constitutional principles governing personal liberty at the bail stage. While
reaffirming that consent of a minor is legally irrelevant under POCSO, the
Court nevertheless recognised that, for the limited purpose of bail, the
surrounding circumstances of the relationship cannot be ignored. By relying on
the prosecutrix’s own statements, the absence of allegations of violence or
coercion, and the assessment of her age at the higher end of the ossification
range, the Court treated the case as one involving a consensual romantic
relationship rather than an exploitative sexual offence. This approach
underscores that Section 29 of the POCSO Act does not impose an absolute bar on
bail and that its presumption must be applied with contextual sensitivity,
particularly where the factual matrix does not prima facie indicate aggravated
or predatory conduct.
Equally significant is the Court’s emphasis
on procedural fairness and proportionality in continued detention. The grant of
bail was strongly influenced by the fact that the petitioner had already
undergone substantial incarceration of over two years, all material witnesses
including the prosecutrix had been examined, and there was no realistic
apprehension of witness intimidation or repetition of the offence. By
distinguishing precedents involving graver circumstances such as gang rape or
repeat offences, the Court clarified that bail jurisprudence under POCSO
remains fact-specific and guided by established parameters laid down in
Prasanta Kumar Sarkar. The ruling thus reinforces that even in serious
statutory offences, prolonged pre-trial incarceration cannot be justified
mechanically, and courts must continuously assess whether continued detention
serves the interests of justice or merely results in punitive confinement
before adjudication on merits.
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