The Madhya Pradesh High Court has clarified that anticipatory bail is not categorically barred in POCSO cases, even where the victim is a minor, if the circumstances suggest genuine consent and the delay in lodging the FIR undermines the prosecution’s claim of non-consent. This ruling recalibrates the presumption of non-consent under the POCSO Act by emphasizing contextual evaluation over mechanical application of statutory provisions.
Background & Facts
The Dispute
The applicant, Shivank Gupta, was named in Crime No. 769/2025 registered at Police Station Rahli, Sagar, for offences under Sections 137(2), 87, 65(1), 64(2)(m), 69, and 89 of the Bharatiya Nagrik Suraksha Sanhita, 2023, and Sections 3/4, 5(l)/6, and 5(j)(ii)/6 of the Protection of Children from Sexual Offences Act, 2012. The prosecution alleges that the victim, then aged 14 years and 5 months, was subjected to repeated sexual assaults between 2021 and 2025, resulting in pregnancy and an induced abortion. The FIR was lodged only on 10.12.2025, nearly four years after the alleged first incident.
Procedural History
- 2021: Victim and applicant developed a friendship while she was studying in Higher Secondary School
- 2024: Victim became pregnant; applicant allegedly administered abortion pills
- 2025: Victim alleges renewed sexual assault; FIR registered on 10.12.2025
- January 2026: Application under Section 482 of BNSS, 2023 filed for anticipatory bail
- 23 January 2026: Hearing before the Madhya Pradesh High Court, Jabalpur Bench
Relief Sought
The applicant sought anticipatory bail, arguing that the relationship was consensual, the delay in reporting was unexplained, and the charge sheet had already been filed, indicating the investigation was complete. He contended that his arrest would be arbitrary and contrary to the principles laid down in Arnesh Kumar v. State of Bihar.
The Legal Issue
The central question was whether anticipatory bail can be granted in a POCSO case where the victim was a minor at the time of initial contact, but the circumstances - including prolonged cohabitation, delayed FIR, and alleged mutual consent - suggest the relationship was not coercive or exploitative as presumed under the Act.
Arguments Presented
For the Petitioner
The applicant’s counsel argued that the victim was a consenting major at the time of the alleged offences in 2024 - 2025, and the initial relationship began as consensual friendship. They cited State of Haryana v. Bhagwan Singh to emphasize that consent, even if later withdrawn, must be evaluated contextually. The delay in lodging the FIR, coupled with the victim’s failure to report the abortion, indicated a voluntary relationship rather than criminal exploitation. The charge sheet’s filing demonstrated the investigation was complete, reducing the risk of evidence tampering.
For the Respondent/State
The State and objector contended that the victim was a minor during the initial acts of sexual contact in 2021, triggering the strict liability regime under Section 6 of the POCSO Act. They argued that any sexual activity with a minor under 16 is per se non-consensual, regardless of subsequent conduct. The continuation of the relationship and the abortion, they claimed, were part of a pattern of manipulation and control, rendering bail inappropriate.
The Court's Analysis
The Court examined the presumption of non-consent under Section 6 of the POCSO Act and its interaction with the factual matrix of delayed reporting and evolving consent. It noted that while the Act creates a rebuttable presumption of non-consent when the victim is under 18, it does not preclude the court from examining the totality of circumstances.
"Considering the factual aspect that the parents of the victim were alive and that no report had been lodged until 10.12.2025, despite the fact that the victim was aborted by administering pills, it appears to be a case of consent."
The Court held that the absence of parental intervention, the protracted timeline, and the lack of immediate outcry after the abortion were inconsistent with a coercive or non-consensual relationship. It distinguished this case from those involving force, threat, or exploitation by a person in authority. The Court emphasized that bail jurisprudence under Article 21 requires balancing the presumption of innocence with the gravity of the offence, and that arrest is not automatic merely because the victim was a minor at the outset.
The Court further noted that the applicant had no prior criminal record, the investigation was complete, and the conditions proposed would ensure cooperation without compromising the trial.
The Verdict
The applicant won. The Court held that anticipatory bail may be granted in POCSO cases where the factual matrix strongly suggests genuine consent and the delay in reporting undermines the prosecution’s claim of non-consent. The applicant was granted anticipatory bail subject to specified conditions, including cooperation with investigation and medical examination.
What This Means For Similar Cases
Consent Can Be Evaluated Contextually in POCSO Cases
- Practitioners must now argue that Section 6 POCSO Act’s presumption of non-consent is rebuttable, not absolute
- Delayed FIR, absence of parental complaint, and prolonged cohabitation are relevant factors to challenge the prosecution’s narrative
- Evidence of mutual affection, communication, or prior consent may be admissible to rebut the statutory presumption
Arrest Is Not Automatic in POCSO Cases
- Anticipatory bail is not barred merely because the victim was a minor at the start of the relationship
- Courts must assess whether the accused’s conduct was exploitative or consensual at the time of each alleged act
- The triple test for bail (prima facie case, likelihood of fleeing, tampering with evidence) remains applicable even under POCSO
Procedural Compliance Must Be Demonstrated
- Applicants must proactively offer to comply with conditions: medical examination, no contact with witnesses, regular court appearances
- Failure to propose concrete conditions may result in denial, even if consent is plausible
- The Court’s direction to undergo medical examination and provide biological samples sets a new precedent for investigative cooperation in bail orders
