The Patna High Court has refused bail to an accused in a serious sexual offence involving a minor, emphasizing that the gravity of allegations - particularly when coupled with pregnancy - renders the accused a flight risk and a threat to the victim’s welfare. The judgment reinforces the judiciary’s strict stance on bail in cases under the Bharatiya Nyaya Sanhita, 2023, where the victim is a child.
Background & Facts
The Dispute
The petitioner, Kundan Kumar @ Kundan Kumar Das, is accused of sexually exploiting a minor girl, the daughter of the informant, under the pretext of marriage. The case arose after the informant discovered that his daughter had been in a physical relationship with the petitioner and subsequently confronted him. The confrontation allegedly led to verbal abuse and physical assault by the petitioner’s father and brother, escalating the matter into a criminal complaint.
Key Facts
- The victim, born on 15.03.2009, was 15 years and 5 months old at the time of the alleged offence on or before 19.08.2024.
- The First Information Report (FIR) was registered on 19.08.2024 at Rajoun Police Station, Case No. 392 of 2024.
- The victim’s statement was recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), wherein she disclosed that the petitioner had engaged in sexual relations with her under the false promise of marriage.
- Medical examination confirmed that the victim was pregnant at the time of investigation.
- The petitioner was arrested and has been in custody since 06.12.2024.
- The offences invoked are under Sections 126(2), 115(2), 351(2), 352, 64, and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS), which correspond to offences of sexual assault, criminal intimidation, assault, and sexual intercourse with a minor.
Procedural History
- 19.08.2024: FIR registered at Rajoun Police Station, Case No. 392 of 2024.
- 06.12.2024: Petitioner arrested and taken into custody.
- Pending before: Additional Sessions Judge-VI-cum-Special Judge (POCSO), Banka.
- 30.04.2026: Bail application filed before the Patna High Court under Criminal Miscellaneous No. 11804 of 2026.
The Parties' Positions
Petitioner’s Position: Claims innocence, asserts that the allegations are fabricated, and highlights his clean antecedents. Argues that the case is based on a broken engagement and personal vendetta.
Respondent/State’s Position: Contends that the victim’s statement under BNSS Section 183 and medical evidence of pregnancy establish a prima facie case of sexual exploitation of a minor. Emphasizes the vulnerability of the victim and the need to protect her from further trauma.
Relief Sought
The petitioner seeks bail pending trial, arguing that his detention is unjustified and that he poses no threat to society or the victim.
The Legal Issue
The central question was whether bail should be granted to an accused charged under Sections 126(2) and 3(5) of the BNS, 2023, where the victim is a minor and medical evidence confirms pregnancy resulting from the alleged offence.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that the allegations are false and motivated, citing the petitioner’s clean criminal record and lack of prior complaints. He contended that the prosecution has not established a strong prima facie case and that the petitioner’s continued detention is disproportionate. He relied on Arnesh Kumar v. State of Bihar to argue that bail should not be denied merely on the basis of the nature of the offence without considering the accused’s antecedents and likelihood of fleeing.
For the Respondent/State
The Additional Public Prosecutor and the informant’s counsel emphasized that the victim’s age (15 years) and the medical confirmation of pregnancy constitute compelling evidence of a serious sexual offence under Section 3(5) of the BNS, 2023, which criminalizes sexual intercourse with a child. They argued that the victim’s statement under Section 183 of the BNSS, 2023 is admissible and credible, and that granting bail would risk witness tampering, intimidation, or re-traumatization. They cited State of Haryana v. Bhagwan Das to underscore that in cases involving minors, the presumption is against bail.
The Court's Analysis
The Court examined the nature of the allegations, the age of the victim, and the medical evidence. It noted that Section 3(5) of the BNS, 2023 criminalizes sexual intercourse with a child below 18 years, and that pregnancy resulting from such an act is a severe aggravating factor. The Court observed that the victim’s statement under Section 183 of the BNSS, 2023 - a provision designed to ensure sensitive recording of child testimony - is a critical piece of evidence that cannot be dismissed lightly.
"The medical evidence of pregnancy, coupled with the victim’s statement recorded under Section 183 BNSS, establishes a strong prima facie case of sexual exploitation of a minor, which cannot be countenanced by granting bail."
The Court rejected the petitioner’s reliance on Arnesh Kumar, distinguishing it on the ground that the case involved non-bailable offences under the IPC with no element of sexual violence against a minor. It held that in cases under the BNS involving child sexual abuse, the presumption is not in favor of bail, and the court must prioritize the victim’s safety and dignity over the accused’s liberty.
The Court further noted that the trial is pending before a Special Judge (POCSO), and the delay in conclusion would further harm the victim. It emphasized that the State’s obligation to protect minors under Section 19 of the POCSO Act remains intact even under the new BNS framework.
The Verdict
The bail application was dismissed. The petitioner remains in custody. The Court directed the trial court to conclude the trial at the earliest, with a specific mandate to complete proceedings within six months from the date of this order. No conditions for bail were granted.
What This Means For Similar Cases
Bail Is Not a Right in Minor Sexual Offences
- Practitioners must now treat bail applications in BNS cases involving minors as exceptional, not routine.
- Pregnancy, medical reports, and victim statements under BNSS Section 183 are decisive factors against bail.
- Courts will not grant bail merely on the basis of clean antecedents when the victim is a child.
Procedural Safeguards for Victims Are Non-Negotiable
- The recording of victim statements under BNSS Section 183 is not a formality - it is a substantive evidentiary pillar.
- Delay in trial is now viewed as a violation of the victim’s rights under the BNS and POCSO framework.
- Special Courts must be held accountable for timelines; failure may invite appellate intervention.
BNS 2023 Does Not Dilute POCSO Protections
- The BNS has not repealed or diluted the protections under the POCSO Act.
- Courts must interpret BNS provisions in harmony with the child-centric ethos of POCSO.
- Prosecutors must ensure medical evidence and victim testimony are preserved and presented with urgency.
