The Bombay High Court's Aurangabad Bench recently granted bail to an accused in a Protection of Children from Sexual Offences Act (POCSO) case, emphasizing the victim's age of discretion despite being a minor. The judgment underscores the interplay between statutory age thresholds and factual consent in sexual offence prosecutions, offering critical guidance for similar cases involving adolescents near the age of majority.
Background & Facts
The Genesis
The applicant, Rahul Dattu Salunke, was arrested on 16.02.2026 in connection with Crime No.22 of 2026 registered at Virgaon Police Station, District Chhatrapati Sambhajinagar. The FIR alleged offences under Sections 137(2), 64(1), 87 of the Bharatiya Nyaya Sanhita (BNS) and Sections 4, 6 of the POCSO Act.
Key Facts
- The victim, born on 16.06.2008, was 17 years and 7 months old at the time of the alleged offence.
- The victim admitted in her statement to a consensual relationship with the applicant since 2023, initially refusing his advances but later reciprocating.
- She stated that physical relations began in July 2025 when she was approximately 17 years old, without alleging force or coercion.
- The victim left her parental home voluntarily on 25.01.2026 with the applicant, traveling to Mahalgaon and Tuljapur, where they stayed at a lodge. She signed the lodge register as a married woman.
- The FIR for kidnapping was initially lodged against unknown persons on 26.01.2026, with the victim's detailed statement recorded nearly a month later.
- Investigation concluded with the filing of a charge-sheet in March 2026, though charges had not yet been framed at the time of the bail application.
Procedural History
- 26.01.2026: FIR lodged for kidnapping against unknown persons.
- 16.02.2026: Applicant arrested in connection with the offence.
- March 2026: Charge-sheet filed in the matter.
- 15.07.2026: Bail application heard and reserved.
- 16.07.2026: Order granting bail pronounced.
The Parties' Positions
The applicant's counsel argued:
- The victim had attained the age of discretion and willingly accompanied the applicant.
- No force or coercion was involved, as evidenced by medical reports and witness statements.
- The delay in lodging the FIR (15 hours) and the victim's voluntary conduct negated the offence of kidnapping.
- Investigation was complete, and no purpose would be served by further detention.
The State, represented by the APP, countered:
- The victim remained a minor under the POCSO Act despite being 17 years and 7 months old.
- The applicant, a married man with children, had exploited the victim's vulnerability.
- There existed a risk of witness tampering and pressure on the victim if bail were granted.
Relief Sought
The applicant sought regular bail, citing completed investigation, lack of evidence of force, and the victim's voluntary participation.
The Legal Issue
The central question was whether the grant of bail in a POCSO case could be denied solely on the ground that the victim was a minor, despite her admission of a consensual relationship and attainment of the age of discretion.
Arguments Presented
For the Applicant
Learned Senior Counsel for the applicant emphasized the victim's admission of a consensual relationship and her voluntary conduct. He pointed to:
- The victim's statement, which indicated no force or coercion.
- Witness testimonies, including the lodge manager and vehicle driver, who confirmed the victim's behavior as that of a willing participant.
- The completion of investigation and filing of the charge-sheet, rendering further detention unnecessary.
- The uncertainty over trial commencement due to un-framed charges.
For the Respondent
The APP for the State argued that the victim's minority under the POCSO Act (being under 18 years) rendered the offence serious, irrespective of her consent. She contended:
- The applicant's position of authority and marital status exacerbated the offence's gravity.
- The risk of witness tampering and pressure on the victim justified denial of bail.
- The delay in lodging the FIR did not negate the statutory protection accorded to minors under the POCSO Act.
The Court's Analysis
The Court examined the victim's statement and medical evidence, noting her admission of a consensual relationship and lack of injuries or violence. It observed:
"What can be discern from above statement of victim is that she admits her love with the applicant. In July 2025 i.e. when she was almost 17 years of age, she narrates about applicant visiting her house and having physical relations. Apparently, she has not reported it to be against her wish."
The Court acknowledged the statutory framework under the POCSO Act but emphasized the factual matrix. It held:
"Prima facie she seems to have attained the age of discretion, when the above episodes took place."
The Court distinguished the case from typical POCSO prosecutions by focusing on the victim's conduct and the absence of force. It noted that while the victim was a minor under the Act, her statements and actions suggested a level of maturity and voluntariness that could not be ignored.
The Court also addressed the State's apprehension of witness tampering, stating that stringent bail conditions could mitigate such risks. It observed:
- The investigation was complete, and the charge-sheet filed.
- The uncertainty over trial commencement due to un-framed charges weighed in favor of bail.
- The applicant's conduct did not indicate a risk of fleeing or obstructing justice.
The Verdict
The Court allowed the bail application. The applicant was directed to be released on bail in connection with Crime No.22 of 2026 on executing a personal bond of Rs.15,000/- with one surety in the like amount. The bail was subject to stringent conditions:
- The applicant shall not tamper with prosecution evidence.
- The applicant shall not enter the vicinity where the informant and the victim reside, or the area where the victim is pursuing her education, until the conclusion of the trial.
The Court directed compliance with the order forthwith.
What This Means For Similar Cases
Age of Consent and Statutory Protection
The judgment clarifies that while the POCSO Act provides statutory protection to minors, the factual matrix - particularly the victim's conduct and statements - can influence bail decisions. Practitioners must now argue the victim's age of discretion and voluntariness as critical factors in bail applications under the POCSO Act.
Balancing Statutory Mandates with Factual Realities
- Courts are increasingly examining the victim's statement and conduct to determine the applicability of statutory protections.
- Consensual relationships involving adolescents near the age of majority may not automatically attract stringent bail denials if the victim's statements support voluntariness.
- Investigation completion and charge-sheet filing are now pivotal factors in bail jurisprudence, reducing the weight of speculative risks like witness tampering.
Stringent Bail Conditions as Safeguards
The judgment underscores the role of conditional bail in mitigating risks associated with bail grants. Practitioners should:
- Argue for specific, enforceable conditions (e.g., no contact with the victim or witnesses) to address judicial concerns.
- Highlight completed investigations and filed charge-sheets as indicators of reduced flight risk.
- Emphasize the lack of evidence of force or coercion in consensual relationship cases.
