The Delhi High Court has observed that while the consent of a minor is legally immaterial under the Protection of Children from Sexual Offences (POCSO) Act, the minor's “approval-in-fact” to a physical relationship can be considered as a relevant circumstance while deciding an accused's bail plea.

Justice Anup Jairam Bhambhani made the observation while granting bail to a man accused of offences under Section 376(2)(n) of the Indian Penal Code and Section 6 of the POCSO Act.

The case arose from an FIR registered at Sarai Rohilla Police Station. The prosecutrix was stated to be born on September 08, 2006 and was around 16 years old when the alleged incidents took place in May-June 2022. The accused was also a minor at the relevant time.

The FIR alleged the two had met while working at the same pickle-manufacturing factory, developed a friendship and had physical relations on several occasions as boyfriend and girlfriend.

The accused argued that the FIR and the prosecutrix's statement under Section 164 of CrPC indicated that their relationship was consensual.

Granting bail to the accused, the Court noted that the prosecutrix had herself stated that the physical relations took place with her consent, although she alleged that he had promised to marry her. It also noted that there was no allegation that the accused had used force, violence or brutality.

The Court, however, made it clear that the prosecutrix's consent had no legal validity since she was a minor.

“Though there is no gainsaying the fact, that technically in law, consent of the prosecutrix is immaterial since she was 'minor' at the relevant time, the court cannot completely ignore the fact that the prosecutrix herself says that the physical relations between the two happened with her approval,” the Court said.

It added: “It is also to be noticed, that each time, the physical relations were made within the confines of the prosecutrix's home, into which she invited the petitioner of her own free will and volition, when no one else was present at home.”

Justice Bhambhani also said that the physical relations between the accused and the prosecutrix appeared to have happened with her “approval-in-fact,” even though she could not have given her consent-in-law.

The Court also said that prosecutrix was certainly of the age of discretion, even though she was not of the age of majority.

“This court is also of the view that being about 16 years of age and having worked in a factory, with a certain level of maturity, it cannot be ignored that the prosecutrix has, both in the FIR as well as in her statement under section 164 Cr.P.C. expressly said that she had physical relations with the petitioner voluntarily,” the Court said.

It noted that the deposition of the prosecutrix as well as of her mother had already been recorded before the trial court and the matter was now pending for recording the statements of official and police witnesses.

The Court allowed the bail plea and directed that the accused be released on furnishing a personal bond of Rs.20,000 with two sureties of the same amount.

The Court directed the accused not to contact or visit prosecution witnesses or offer them any inducement, threat or promise. It also directed him not to tamper with evidence or prejudice the trial proceedings.

It further clarified that the observations would not be construed as an expression of opinion on the merits of the pending trial.

Title: HARERAM v. STATE OF DELHI

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