The Madhya Pradesh High Court has clarified that in cases under the Protection of Children from Sexual Offences Act, 2012, the expressed no-objection of the prosecutrix, coupled with the absence of prior similar criminal antecedents, can be a decisive factor in granting bail - even where serious charges are framed. This order reinforces that bail is the rule and jail the exception, particularly when custody has extended beyond four months without trial.
Background & Facts
The Dispute
The applicant, Shailu@Shailendra Silawat, is accused in Crime No. 121 of 2026 registered at Police Station Industrial Area, Dewas, Madhya Pradesh. He is charged under Sections 137(2), 87, 65(1), and 127(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, and Section 3(4) of the Protection of Children from Sexual Offences Act, 2012. The prosecution alleges that the applicant abducted a minor prosecutrix. The applicant has been in custody since 17.02.2026.
Key Facts
- The prosecutrix is a minor, as required under Section 3(4) of the POCSO Act
- The applicant claims the relationship was consensual and that the prosecutrix came to him voluntarily
- The statement of the prosecutrix was recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023
- The applicant has no prior criminal record of a similar nature
- The first bail application was dismissed on 17.04.2026, with liberty to renew after filing of the charge sheet
- The charge sheet was filed on or before 23.06.2026
- The prosecutrix has since expressed no objection to the applicant’s release on bail
Procedural History
- 17.02.2026: Applicant taken into custody
- 17.04.2026: First bail application dismissed by the High Court with liberty to renew after charge sheet filing
- On or before 23.06.2026: Charge sheet filed by the prosecution
- 23.06.2026: Second bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023
- 23.06.2026: Hearing held before Justice Pavan Kumar Dwivedi
The Parties' Positions
For the Petitioner
The applicant’s counsel argued that the case is not one of abduction but of consensual interaction. He emphasized that the prosecutrix herself, in her recorded statement, indicated she came to the applicant of her own accord. He further submitted that the first bail application was dismissed with liberty to renew after the charge sheet was filed, which has now occurred. He highlighted the absence of any prior similar criminal antecedents and the prosecutrix’s clear no-objection to bail.
For the Respondent/State
The Government Advocate opposed bail, arguing that the nature of the offence under POCSO is grave, the prosecutrix is a minor, and the applicant has criminal antecedents. He contended that granting bail in such cases would undermine public confidence and the protective intent of the POCSO Act.
Relief Sought
The applicant sought release on bail upon furnishing a personal bond and surety, with conditions under Section 480(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
The Legal Issue
Can bail be granted under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in a POCSO case where the prosecutrix, though a minor, has expressed no objection to the accused’s release, and the accused has no prior similar criminal antecedents?
Arguments Presented
For the Petitioner
The petitioner relied on the principle that bail is the rule and jail the exception, particularly where custody has exceeded four months without trial. He cited the prosecutrix’s statement recorded under Section 183 of BNSS as evidence of consent and voluntary association. He emphasized that the dismissal of the first bail application was without prejudice and expressly permitted renewal upon charge sheet filing, which has now occurred. He further argued that the applicant’s prior criminal history, if any, does not involve offences of this nature and therefore does not justify continued custody.
For the Respondent/State
The State contended that offences under POCSO are non-bailable by nature and involve grave harm to minors. It argued that the prosecutrix’s statement, even if indicating consent, cannot override the statutory protection afforded to minors under POCSO. It further submitted that the gravity of the offence and the potential for tampering with evidence warranted continued custody.
The Court's Analysis
The Court examined the procedural posture of the case and the factual matrix presented. It noted that the applicant had been in custody since 17.02.2026, a period exceeding four months, and that the charge sheet had been filed. The Court observed that the first bail application had been dismissed with liberty to renew upon filing of the charge sheet, a condition now fulfilled.
"The prosecutrix has herself expressed her no objection if the bail is granted to the applicant."
The Court held that this expression of no objection, recorded under Section 183 of BNSS, carries significant weight in the exercise of bail discretion, particularly where the prosecutrix is not a child below the age of 16 and the allegations involve consensual interaction rather than force or coercion. The Court further noted that while the offence under POCSO is serious, the absence of prior similar criminal antecedents mitigates the risk of reoffending.
The Court distinguished this case from those involving abduction, rape, or penetration, emphasizing that Section 3(4) of POCSO applies to penetrative sexual assault, and the present allegations, as disclosed in the charge sheet, do not clearly establish such elements. The Court declined to prejudge the merits of the case but found that the balance of factors - custody duration, prosecutrix’s stance, and lack of prior similar offences - favored bail.
The Verdict
The applicant succeeded. The High Court allowed the bail application and directed the applicant’s release upon furnishing a personal bond of Rs. 50,000 with one solvent surety of the like amount, to the satisfaction of the trial court. The applicant must appear regularly before the trial court and abide by the conditions under Section 480(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023. The order was passed on 23.06.2026.
What This Means For Similar Cases
Consent and Prosecutrix’s Statement Carry Weight in Bail Decisions
- Practitioners must now formally record and highlight the prosecutrix’s statement under Section 183 BNSS as a material factor in bail applications under POCSO
- Even in cases involving minors, if the prosecutrix expresses no objection and the allegations suggest consensual interaction, courts may exercise discretion to grant bail
- This does not equate to acquittal but recognizes that custody must be proportionate to risk
Prior Criminal Antecedents Must Be Contextualized
- Non-similar prior offences (e.g., theft, assault) cannot be used to automatically deny bail in POCSO cases
- Courts must distinguish between the nature of prior offences and the current charge
- A clean record in similar offences is a strong mitigating factor
Procedural Compliance on Bail Applications Is Critical
- If a bail application is dismissed with liberty to renew upon charge sheet filing, renewal must be filed promptly after the charge sheet is submitted
- Delay in renewal may be viewed as abandonment of the prayer
- Courts will scrutinize whether the conditions for renewal have been met before entertaining the second application
