Delhi High Court grants bail to POCSO accused after survivor-wife offers to stand surety for him

The Delhi High Court recently granted bail to a 20-year-old man in a case under the Protection of Children from Sexual Offences Act (POCSO Act) after the survivor, his wife, offered to stand as surety for him [Bijender Mehto vs GNCT of Delhi]..Justice Anup Jairam Bhambhani observed that prima facie, the relationship between the accused and the survivor was a consensual one.."X' admits that she has had a child with the petitioner and that she took that pregnancy to term and gave birth to that 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," the Court said..The application was filed by the petitioner for regular bail in a case registered under Sections 363, 366, 376 of the Indian Penal Code (IPC) and Section 6 of the POCSO Act. The case was filed by the survivor's mother after she went 'missing' in 2020..The plea highlighted that the petitioner and the survivor had known each other since they were in school together, that they even had a child together, and that they were living together with the petitioner's parents..The counsel for the petitioner argued that the case was one of a 'juvenile romance' where both parties engaged in a completely consensual physical relationship without deception, coercion or pressure..He added that the survivor, now a major, regards the petitioner as her husband and wished to live with him, as demonstrated by her by currently residing with the petitioner's parents..The petitioner had been in custody for twenty months and deserved to be enlarged on bail, the counsel contended..On the other hand, Assistant Public Prosecutor Shoaib Haider opposed the grant of bail on the ground that serious offences under Section 376(2), IPC and Section 6 of the POCSO Act were alleged. Enlarging the petitioner on bail would prejudice the prosecution, the State counsel argued. .The Court, in turn interacted with the survivor at length and found that she wholeheartedly endorsed the version of events recorded during the investigation and trial i.e. that she had gone with the petitioner of her own volition. .However, since the chargesheet was filed and charges were framed, the Court noted that Section 29 of POCSO Act would be triggered, raising the threshold of satisfaction required for the grant of bail..The Court referred to its own decision in Dharmander Singh @ Saheb vs. The State, wherein it had laid down criteria for considering such cases at the post-charge stage. .In the said case, the Court had said that, apart from nature and quality of evidence, the Court could take the following factors into account to tilt the balance against or in favour of the accused:The age of the minor victim: the younger the victim, the more heinous the offence alleged; the age of the accused: the older the accused, the more heinous the offence alleged; the comparative age of the victim and the accused: the more their age difference, the more the element of perversion in the offence alleged;the familial relationship, if any, between the victim and the accused: the closer such relationship, the more odious the offence alleged; whether the offence alleged involved threat, intimidation, violence and/or brutality; the conduct of the accused after the offence, as alleged; whether the offence was repeated against the victim, or whether the accused is a repeat offender under the POCSO Act or otherwise; 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; 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; 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; whether it appears there was tacit approval-in-fact, though not consent-in-law, for the offence alleged; whether the offence alleged was committed alone or along with other persons, acting in a group or otherwise; other similar real-life considerations..On examining these factors, the Court determined that the circumstances favoured grant of bail to the petitioner in this case.."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 added..However, while the survivor's offer to stand surety was taken note of, the Court did not make it a condition for the grant of bail. While allowing the application, the Court also clarified that nothing in the order should be construed as an expression of opinion on the merits of the pending trial..Advocates Vikas Kumar and Rajneesh Bhashar represented the petitioner. Advocate Sampanna Pani appeared for the survivor pro-bono..[Read Judgment]