Hareram v. State of Delhi, 2026

The petitioner, Hareram, sought regular bail before the Delhi High Court.

The case arose from FIR No. 324/2022, registered at Police Station Sarai Rohilla, Delhi.

The petitioner was accused of offences under Section 376(2)(n) of the IPC and Section 6 of the POCSO Act.

The prosecutrix was stated to have been born on 8 September 2006.

At the time of the alleged incidents in May and June 2022, she was approximately 16 years old and was therefore a minor under the POCSO Act.

The petitioner was also a minor at the relevant time, although he was approximately 20 years old when the bail application was considered.

According to the FIR, the petitioner and the prosecutrix had met while working at the same pickle-manufacturing factory.

They developed a friendship and allegedly entered into a relationship as boyfriend and girlfriend.

The prosecution alleged that the two had physical relations on several occasions.

The alleged incidents included physical relations on 2 May 2022, 16 May 2022 and 2 June 2022.

According to the prosecutrix's statement, the physical relations took place with her approval, although she alleged that the petitioner had promised to marry her.

The prosecutrix also stated that the petitioner came to her house when no other person was present and that physical relations took place there.

The petitioner relied upon the FIR and the prosecutrix's statement under Section 164 CrPC to argue that the relationship appeared to have been voluntary.

The prosecution, however, maintained that the prosecutrix was a minor and therefore her consent had no legal validity under the POCSO framework.

The Court noted that there was no allegation of force, violence or brutality being used by the petitioner.

The Court also noted that the prosecutrix herself had described the physical relationship as having occurred with her approval.

The Court considered the fact that the prosecutrix was approximately 16 years old and had been working in a factory, which the Court considered relevant to the factual circumstances surrounding the alleged relationship.

The petitioner had spent approximately one year and eleven months in judicial custody as of 9 May 2024.

His jail conduct was recorded as satisfactory and he was not involved in any other criminal case.

By the time the bail application was considered, the depositions of the prosecutrix and her mother had already been recorded before the Trial Court.

The trial was thereafter pending for examination of official and police witnesses.

The High Court therefore had to determine whether the petitioner should be granted bail while making it clear that the minor's legally recognised consent could not be treated as a defence to the alleged POCSO offence.

The Delhi High Court allowed the bail application and granted regular bail to the petitioner, Hareram.

The Court first made an important distinction between consent-in-law and approval-in-fact.

The Court made it clear that because the prosecutrix was a minor at the relevant time, her consent had no legal validity under the POCSO Act.

Therefore, the Court did not treat the prosecutrix's alleged consent as a legal defence to the offence.

However, the Court held that it could not completely ignore the factual circumstance that the prosecutrix herself stated that the physical relations occurred with her approval.

The Court noted that the physical relations allegedly took place at the prosecutrix's home when no one else was present and that she had invited the petitioner there.

The Court also noted the absence of allegations that the petitioner had used force, violence or brutality.

The Court described the circumstances as indicating that the relationship appeared to have occurred with the prosecutrix's “approval-in-fact”, even though she could not legally give consent.

The Court considered the prosecutrix to be approximately 16 years old and observed that she was of an “age of discretion”, although she was not legally an adult.

The Court also considered the fact that she had worked in a factory and had demonstrated a certain degree of maturity in the circumstances appearing from the record.

The Court relied upon its earlier decision in Dharmander Singh @ Saheb v. State (Govt. of NCT of Delhi), which had discussed practical and real-life considerations relevant to bail applications in POCSO cases.

The Court considered the fact that the petitioner and prosecutrix were both minors at the relevant time.

The Court also noted that the petitioner had already spent approximately one year and eleven months in judicial custody.

The jail conduct of the petitioner was recorded as satisfactory.

The Court further noted that the petitioner was not involved in any other criminal case.

The depositions of the prosecutrix and her mother had already been recorded before the Trial Court.

The remaining trial concerned the examination of official and police witnesses.

Taking the circumstances collectively, the Court concluded that the petitioner had made out a case for grant of regular bail.

The Court directed the petitioner to furnish a personal bond of ₹20,000 with two sureties of the same amount to the satisfaction of the Trial Court.

The Court directed the petitioner to provide a functioning mobile telephone number to the Investigating Officer or Station House Officer and keep it active.

If the petitioner possessed a passport, he was directed to surrender it and not leave India without prior permission of the Trial Court.

The petitioner was directed not to contact, visit or attempt to influence prosecution witnesses.

He was specifically prohibited from offering any inducement, threat or promise to prosecution witnesses or other persons acquainted with the facts of the case.

He was also directed not to tamper with evidence or undertake any activity that could prejudice the pending trial.

The Court expressly clarified that its observations were only for deciding the bail application and should not be treated as an opinion on the merits of the case.

Consent under POCSO remains legally immaterial: The judgment does not dilute the basic principle of the POCSO Act that a child cannot provide legally valid consent to sexual activity.

Approval-in-fact is different from consent-in-law: The central distinction made by the Court is between what happened factually and the legal consequences attached to it. The Court could consider the minor's factual approval without recognising it as legally valid consent.

Bail and trial are different stages: The Court was deciding only whether the accused should remain in custody during the trial. It was not determining whether the accused was guilty or whether the POCSO offence was ultimately established.

Limited use of the prosecutrix's statement: The prosecutrix's statement was considered as part of the overall bail assessment. It was not treated as a legal waiver of the protection available to her under POCSO.

Absence of force or violence: The Court considered the absence of allegations of force, violence or brutality as one factual circumstance relevant to bail.

Age of discretion: The Court's observation that the prosecutrix was of an "age of discretion" is significant but must be understood carefully. Being of an age of discretion does not mean that a 16-year-old acquires legal capacity to consent to sexual activity under POCSO.

POCSO's protective framework remains intact: The judgment does not create a general "consent exception" for minors under POCSO. The statutory protection continues to apply irrespective of whether the minor factually agreed to the relationship.

Close-in-age consideration: The fact that the accused was also a minor at the relevant time was an important contextual circumstance considered by the Court while determining bail.

Bail requires contextual assessment: The Court considered several circumstances together rather than relying upon a single factor, including the FIR, Section 164 statement, age, absence of force, custody period, jail conduct and stage of trial.

Section 29 POCSO does not eliminate judicial discretion: The Court relied upon its earlier jurisprudence to recognise that the statutory presumption under POCSO does not mean that bail becomes legally impossible in every case.

Protection of the trial process: The stringent bail conditions imposed by the Court demonstrate that granting bail does not mean releasing the accused without safeguards.

No interference with witnesses: Because the prosecutrix and her mother had already been examined, the Court could also consider the stage of the proceedings while assessing the risk of interference.

Important distinction for examination purposes: The correct proposition is not that a minor's consent is valid under POCSO. The correct proposition is that although consent is legally immaterial, the factual circumstance of the minor's approval may be relevant to the judicial assessment of bail.

Potential controversy: The concept of "approval-in-fact" in cases involving minors remains sensitive because there is a risk that factual approval could be misunderstood as legally valid consent. The judgment itself avoids this by expressly recognising that the prosecutrix could not provide consent-in-law.

Impact on bail jurisprudence: The decision illustrates that courts may examine the factual context of an alleged POCSO offence in considerable detail while deciding bail, provided that such examination does not convert factual approval into a legal defence.

Limited precedential effect: Since the order was passed at the bail stage, its observations should not be understood as determining the final guilt or innocence of the accused.