Bail Under POCSO Act | Consensual Acts With Minor Can Be Mitigating Factor : Karnataka HC

The Karnataka High Court recently granted regular bail to a 19-year-old accused in a case involving offences under the Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Bharatiya Nyaya Sanhita (BNS), 2023. The judgment underscores that while consent of a minor is not legally valid, alleged consensual acts can be considered as a mitigating factor for bail, particularly when the victim was close to the age of majority and the investigation is complete.

Background & Facts

The Dispute

The petitioner, a 19-year-old student, was accused of offences under Sections 137(2), 64(1), 64(2)(m), 351(1), and 3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023, and Sections 4, 6, 8, 12, and 18 of the POCSO Act, 2012. The allegations stemmed from a complaint filed by the mother of the victim, who was 17 years old at the time of the incident. The complaint alleged that the petitioner and two other accused committed sexual offences against the victim.

Key Facts

• The victim was 17 years old at the time of the alleged incident
• The FIR (Crime No. 183/2025) was registered based on the complaint by the victim’s mother
• The petitioner was 19 years old at the time of the alleged incident
• The victim allegedly accompanied the petitioner to multiple locations on two occasions following phone calls
• The DNA report filed with the charge sheet did not implicate the petitioner
• Two other accused were already granted bail, with no allegations of rape against them

Procedural History

• Crime No. 183/2025 registered at Hangal Police Station, Hangal Circle, Haveri District
• Spl. S.C. No. 125/2025 filed before the Additional District and Sessions Judge, Fast Track Special Court-I, Haveri
• 24.10.2025: Petitioner taken into custody
• 2026: Charge sheet filed; investigation completed
• 07.07.2026: Present bail petition (Crl.P. No. 101305 of 2026) filed under Section 439 of the CrPC (Section 483 of the BNSS, 2023) before the Karnataka High Court, Dharwad Bench

The Parties' Positions

For the Petitioner

• Argued that the alleged act appeared consensual based on the complaint’s contents
• Highlighted that the victim’s consent cannot be legally valid but can be a mitigating factor for bail
• Pointed out that two other accused were granted bail, despite being present during the incident
• Emphasized that the investigation was complete and custodial interrogation was unnecessary
• Submitted that the DNA report did not implicate the petitioner
• Urged that the petitioner was young (19 years old) and had been in custody since 24.10.2025

For the Respondents

• State of Karnataka: Opposed bail on the grounds that the offences were heinous and the victim was pregnant, with a DNA report implicating the accused
• Second Respondent (Victim’s Mother): Though served, did not appear

Relief Sought

The petitioner sought regular bail under Section 439 CrPC (Section 483 BNSS) in Spl. S.C. No. 125/2025, pending before the Additional District and Sessions Judge, Haveri.

The Legal Issue

The central question was whether alleged consensual acts with a minor, coupled with mitigating factors such as the victim’s age (close to majority), the completion of investigation, and the lack of implicating evidence, could justify granting regular bail under Section 439 CrPC/483 BNSS in a case involving serious offences under the POCSO Act and BNS.

Arguments Presented

For the Petitioner

• Relied on the contents of the complaint to argue that the alleged act appeared consensual
• Cited the grant of bail to two other accused as a precedent for similar circumstances
• Highlighted the completion of investigation and the lack of need for custodial interrogation
• Pointed to the DNA report, which did not implicate the petitioner
• Emphasized the petitioner’s young age (19 years) and prolonged custody since 24.10.2025

For the State

• Opposed bail on the grounds that the offences were heinous and the victim was pregnant, with a DNA report supporting the allegations
• Argued that the gravity of the offence warranted denial of bail

The Court's Analysis

The Court carefully considered the contentions of both parties and perused the records, including the complaint, bail orders of co-accused, and the DNA report. The Court observed:

1. Consensual Acts as Mitigating Factor: While the victim’s consent is not legally valid under the POCSO Act, the Court noted that the alleged consensual nature of the act could be considered a mitigating factor for bail. The victim, though a minor, was 17 years old and allegedly accompanied the petitioner to multiple locations on two occasions.

   "It is also noticed from the contents of the complaint that, the victim allegedly went along with the petitioner to quite a few places and though it is stated that the alleged sexual intercourse has taken place despite her protest, what can be noticed is the victim allegedly went along with the petitioner to two different places on two different occasions on a phone call made by the petitioner."

2. Completion of Investigation: The Court noted that the charge sheet had been filed, and the investigation was complete. There was no need for custodial interrogation, and the medical evidence (DNA report) did not implicate the petitioner.

3. Comparison with Co-Accused: The Court observed that two other accused had already been granted bail, despite being present during the incident. While the allegations against them were not identical, this fact was considered in the overall assessment of bail.

4. Petitioner’s Age and Custody Duration: The petitioner was 19 years old at the time of the incident and had been in custody since 24.10.2025. The Court took this into account as a humanitarian factor.

5. No Threat to Trial: The Court was satisfied that the petitioner’s release would not threaten the trial process, as there was no indication of witness tampering or evidence tampering.

The Verdict

The Court allowed the bail petition subject to stringent conditions:

• The petitioner was directed to execute a personal bond of Rs. 2,00,000 with two sureties for the like sum
• The petitioner must attend the trial court on every posting date unless exempted
• The petitioner must cooperate with the trial and not tamper with evidence or witnesses
• The petitioner must furnish his current address and active mobile number to the jurisdictional police and intimate any changes within 48 hours
• The petitioner cannot leave the jurisdiction of the police station without prior intimation
• The petitioner must not commit any offences during the bail period
• The Court clarified that its observations would not influence the final verdict

What This Means For Similar Cases

Consent of Minor as Mitigating Factor

• Bail Consideration: While consent of a minor is invalid under the POCSO Act, courts may consider alleged consensual acts as a mitigating factor for bail, particularly when the victim is close to the age of majority
• Victim’s Conduct: Courts may examine the victim’s conduct (e.g., accompanying the accused voluntarily) as part of the bail assessment, though this does not absolve the accused of liability

Completion of Investigation and Evidence

• DNA and Medical Evidence: If medical or forensic evidence (e.g., DNA report) does not implicate the accused, this can strengthen the case for bail, especially when the investigation is complete
• Custodial Interrogation: Once the charge sheet is filed, courts are less likely to deny bail on the grounds of custodial interrogation, unless specific evidence requires further investigation

Age and Humanitarian Considerations

• Young Accused: Courts may consider the age of the accused (e.g., 19 years) as a humanitarian factor for bail, particularly when the accused has been in prolonged custody
• Co-Accused Precedent: If co-accused in similar circumstances have been granted bail, this can be cited as a precedent to argue for parity in bail decisions

Conditions for Bail Under POCSO

• Stringent Conditions: Courts are likely to impose strict conditions for bail in POCSO cases, including high bond amounts, regular court attendance, and restrictions on movement
• Non-Interference: Accused must not threaten, induce, or promise anyone connected with the case, nor tamper with evidence or witnesses