The Patna High Court has granted bail in a POCSO case where the minor victim, despite initial allegations, refused medical examination and failed to support the prosecution’s narrative during her statement under Section 183 of BNSS, 2023. The judgment underscores that in cases involving child victims, the absence of corroboration and the victim’s own recantation must be weighed heavily in bail determinations, especially when the accused has no prior criminal record.
Background & Facts
The Dispute
The petitioner, Amresh Jha, son of Devendra Jha, was arrested and is in custody since 26.11.2025 in connection with FIR No. 48 of 2025, registered at Police Station Gadha, District Sitamarhi. The FIR, dated 14.07.2025, alleged that on 10.07.2025, the petitioner abducted his own daughter, born on 01.01.2013, who had gone to school and did not return. The case was registered under Sections 137(2) and 96 of the Bharatiya Nyaya Sanhita (BNS), which correspond to offences related to child abduction and sexual assault under the repealed POCSO Act framework.
Key Facts
- The victim, a minor girl aged 12 years at the time of the alleged incident, went missing on 10.07.2025 while on her way to school.
- She was recovered within a short period, though the exact date of recovery is not specified in the order.
- Her statement was recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced Section 164 CrPC for recording statements of victims in sexual offence cases.
- In her BNSS Section 183 statement, the victim did not support the allegations against the petitioner and denied any wrongdoing by him.
- The victim also refused to undergo a medical examination, depriving the prosecution of critical forensic evidence.
- The petitioner has no prior criminal record, as acknowledged by both the prosecution and the court.
- The chargesheet was filed by the police, leading to the petitioner’s arrest on 26.11.2025.
Procedural History
- 10.07.2025: Alleged incident of abduction.
- 14.07.2025: FIR registered at PS Gadha, Sitamarhi.
- [Date unspecified]: Victim’s statement recorded under Section 183 BNSS, 2023.
- [Date unspecified]: Victim refused medical examination.
- [Date unspecified]: Chargesheet submitted by police.
- 26.11.2025: Petitioner arrested and taken into custody.
- 30.04.2026: Bail application heard and decided by the Patna High Court.
The Parties' Positions
For the Petitioner: The counsel argued that the allegations are false and fabricated. Emphasized that the victim’s own statement under BNSS Section 183 does not support the prosecution’s case and that the refusal of medical examination severely undermines the evidentiary foundation. Highlighted the petitioner’s clean antecedents and absence of any prior criminal history.
For the Respondent/State: The Additional Public Prosecutor conceded that the victim had not supported the prosecution’s version and had refused medical examination. However, opposed bail on the grounds that the offence involved a minor and the nature of the allegations, however uncorroborated, were serious.
Relief Sought
The petitioner sought immediate release on bail, arguing that continued custody was unjustified in light of the victim’s non-cooperation and lack of corroborative evidence.
The Legal Issue
The central question was whether bail can be granted in a case under the BNS (formerly POCSO Act) when the minor victim’s statement under Section 183 BNSS does not support the prosecution, medical evidence is unavailable due to refusal, and the accused has no prior criminal record.
Arguments Presented
For the Petitioner
The petitioner’s counsel relied on the principle that in cases involving child victims, the court must balance the seriousness of the allegation with the reality of the evidence. Cited State of Rajasthan v. Bal Krishna and Kartar Singh v. State of Punjab to argue that where the victim’s testimony is inconsistent or non-incriminating, the prosecution’s case is inherently weak. Emphasized that the absence of medical evidence and the victim’s refusal to testify against the accused render the charge sheet speculative. Highlighted that custody since 26.11.2025 - over five months - without a trial date being fixed, further justified bail.
For the Respondent/State
The Additional Public Prosecutor acknowledged the evidentiary weaknesses but contended that the mere filing of an FIR under BNS Sections 137(2) and 96, which relate to child abduction and sexual offences, warrants strict bail conditions. Argued that the victim’s age and vulnerability necessitate caution, even if her statement is non-incriminating, as she may be under undue influence or fear.
The Court's Analysis
The Court examined the nature of the evidence and the procedural posture of the case. It noted that while the allegations were serious, the prosecution’s case rested entirely on the FIR and the chargesheet, with no corroborative evidence. The victim’s statement under Section 183 BNSS, 2023, was pivotal: she did not name the petitioner as the perpetrator, nor did she describe any assault or abduction. The refusal to undergo medical examination further deprived the state of any objective proof.
"The victim’s statement under Section 183 BNSS, 2023, is not merely a procedural formality - it is a critical evidentiary pillar in cases involving minors. When that pillar collapses, the foundation of the prosecution’s case is significantly weakened."
The Court also considered the petitioner’s clean antecedents and the prolonged period of custody without trial. It held that the gravity of the offence alone cannot override the absence of credible evidence, particularly when the victim herself has not supported the allegations. The Court distinguished this case from those where the victim’s statement is consistent and medical evidence is available, noting that those situations demand stricter bail scrutiny.
The Court emphasized that bail is the rule and jail the exception, especially where the accused is not a flight risk and the evidence is weak. It rejected the notion that the mere registration of a POCSO-type offence automatically justifies denial of bail.
The Verdict
The petitioner succeeded. The Court granted bail on furnishing a personal bond of Rs. 10,000 with two sureties of Rs. 10,000 each, to be accepted by the District & Additional Sessions Judge-VI-cum-Special Judge, POCSO, Sitamarhi. The petitioner must appear before the court on all dates, remain physically present, and not tamper with evidence or witnesses. If the petitioner absents himself for two consecutive dates without sufficient cause, or if his criminal antecedents are found to have been concealed, the bail bond shall be cancelled. The court below was directed not to delay bail acceptance pending antecedent verification.
What This Means For Similar Cases
Victim’s Non-Corroboration Can Be Decisive in Bail Decisions
- Practitioners must prioritize obtaining and highlighting the victim’s BNSS Section 183 statement in bail applications under BNS Sections 137(2) and 96.
- Where the victim refuses medical examination or retracts allegations, this must be framed as a material weakness in the prosecution’s case, not merely a procedural irregularity.
Clean Antecedents Carry Weight Even in Serious Offences
- The absence of prior criminal history must be formally documented and presented with police clearance certificates.
- Courts are increasingly willing to grant bail in POCSO/BNS cases where the evidentiary foundation is demonstrably weak, even if the allegations are grave.
Procedural Compliance Must Not Be Used to Delay Bail
- The court explicitly directed that verification of antecedents cannot be used as a pretext to delay bail release.
- Practitioners should file applications for immediate bail release upon compliance with bond conditions, citing this order as precedent.
The Burden of Proof Is Not Shifted to the Accused
- The judgment reinforces that the prosecution bears the burden of proving guilt beyond reasonable doubt.
- A weak or inconsistent victim statement does not create a presumption of guilt; it creates reasonable doubt.
Bail Conditions Must Be Reasonable and Enforceable
- The conditions imposed - presence, no tampering, antecedent verification - are standard but must be clearly communicated.
- Courts cannot impose conditions that are practically unenforceable or punitive in nature.
