The Madhya Pradesh High Court has clarified that disputes regarding the age of a prosecutrix and the issue of consent in POCSO cases cannot be resolved at the bail stage. The court granted regular bail to a 19-year-old accused, emphasizing that such factual controversies must be adjudicated during trial, not through pre-trial detention.
Background & Facts
The Dispute
The applicant, Sharif Behna, a 19-year-old male, was arrested on 10.02.2026 in connection with FIR No. 62/2026 registered at Police Station Ajaygarh, District Panna, Madhya Pradesh. The case involves allegations under Sections 64(2)(m), 64(2)(a)(i), 87, and 137(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Sections 3/4, 5L/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The prosecution alleges sexual assault against a female minor.
Key Facts
- The applicant has been in judicial custody since 10.02.2026.
- The prosecutrix is alleged to be 17 years and 3 months old at the time of the incident, according to the prosecution.
- The applicant’s counsel contends that the prosecutrix is above 18 years of age and left her parental home voluntarily.
- The prosecutrix appeared before the trial court and stated under oath that she is a major and that no wrongful act was committed by the applicant.
- No medical evidence regarding age has been formally recorded or submitted in the bail proceedings.
- The applicant is a first-time accused with no prior criminal record.
Procedural History
- 10.02.2026: Arrest of applicant following registration of FIR No. 62/2026.
- 15.02.2026: Chargesheet filed by police under BNSS and POCSO Act.
- 20.03.2026: Applicant produced before Magistrate; remanded to custody.
- 25.04.2026: First bail application filed under Section 483 of BNSS.
- 30.04.2026: Hearing before the High Court at Jabalpur.
The Parties' Positions
For the Applicant
The applicant’s counsel, Shri Vineet Mishra, argued that:
- The prosecutrix is a major and consented to the relationship.
- Her own statement before the trial court negates the allegation of sexual assault.
- The applicant is a young adult with no prior record.
- Prolonged custody without determination of age or consent violates the principle of presumption of innocence.
- The case lacks corroborative evidence and hinges entirely on conflicting testimonies.
For the Respondent-State
The State’s counsel, Shri Sandeep Kumar Dubey, opposed bail on the grounds that:
- The prosecution case alleges the prosecutrix was 17 years and 3 months old at the time of the incident.
- Under the POCSO Act, consent of a child below 18 is legally irrelevant.
- The seriousness of the offences warrants continued custody.
- The court must err on the side of protecting minors, even if age is disputed.
Relief Sought
The applicant sought regular bail under Section 483 of BNSS, with a personal bond and surety, pending trial.
The Legal Issue
Can a court grant regular bail in a POCSO case where the age of the prosecutrix and the issue of consent are in dispute, without conclusive evidence on either point?
Arguments Presented
For the Applicant
The applicant’s counsel relied on the principle that bail is the rule and jail is the exception, especially where the accused is young and the allegations are contested. He cited Arnesh Kumar v. State of Bihar to argue that gravity of offence alone cannot justify denial of bail. He emphasized that the prosecutrix’s own testimony before the trial court, asserting her majority and lack of coercion, raises a reasonable doubt about the prosecution’s version. He further contended that Section 483 of BNSS permits bail where the accused is not likely to abscond or tamper with evidence, and no such risk was demonstrated.
For the Respondent-State
The State argued that POCSO is a protective statute and that any ambiguity regarding the age of the victim must be resolved in favor of the child. It cited State of Maharashtra v. Chandrakant to assert that consent is immaterial under POCSO if the victim is below 18. The State maintained that the seriousness of the charges, including penetrative sexual assault under Section 6 of POCSO, justifies continued custody pending trial, particularly where the victim’s age remains unverified by medical or documentary evidence.
The Court's Analysis
The court declined to adjudicate the factual dispute regarding the prosecutrix’s age or the voluntariness of her conduct at the bail stage. It observed that the applicant’s custody since 10.02.2026 exceeds two months without a final determination of the allegations. The court noted that the prosecutrix herself appeared before the trial court and made a statement inconsistent with the prosecution’s version. While acknowledging the seriousness of POCSO offences, the court held that the law does not mandate automatic denial of bail merely because the offence falls under POCSO.
"The court cannot, at the bail stage, accept the prosecution’s version of age as conclusive without medical or documentary proof, nor can it reject the accused’s version merely because the offence is serious. The issue of age and consent must be determined after evidence is recorded."
The court further emphasized that Section 483 of BNSS, which governs regular bail, requires the court to consider whether the accused is likely to flee, tamper with evidence, or intimidate witnesses. No such risk was established. The court also noted that the applicant is a first-time offender with strong local ties and no history of non-appearance.
The court distinguished this case from those involving premeditated exploitation or use of force, where bail is routinely denied. Here, the allegations are contested and hinge on credibility, making the case unsuitable for pre-trial incarceration without a trial.
The Verdict
The applicant succeeded. The High Court granted regular bail to Sharif Behna on furnishing a personal bond of Rs.50,000 with one surety of the same amount, to be approved by the trial court. The applicant is directed to comply with Section 480(3) of BNSS, including reporting to the police station as required. The order is effective immediately, and the applicant shall be released upon fulfillment of the bail conditions.
What This Means For Similar Cases
Age Disputes Do Not Automatically Bar Bail in POCSO Cases
- Practitioners must argue that contested age claims require evidentiary support, not mere assertion by prosecution.
- Bail applications should highlight any contradictory statements by the prosecutrix, even if made before the trial court.
- Courts must avoid presuming minority without proof; the burden remains on the prosecution to establish age.
Consent Is Not Irrelevant at Bail Stage - But Must Be Evaluated Contextually
- While consent is legally immaterial under POCSO if the victim is below 18, the existence of a consensual relationship may raise reasonable doubt about the nature of the act.
- Courts may consider whether the relationship was voluntary and whether the accused had reason to believe the victim was an adult.
- This does not excuse the offence but may justify bail where the prosecution’s case is weak or contradictory.
BNSS Has Broadened Bail Discretion
- Section 483 of BNSS replaces the old CrPC bail framework and allows greater judicial discretion.
- Courts are now expected to weigh the likelihood of conviction against the right to liberty more carefully.
- First-time accused in contested POCSO cases, especially where the victim’s testimony is inconsistent, have a stronger claim to bail.
