The Bombay High Court has clarified that in POCSO cases, the presumption of minority cannot override the requirement for concrete proof of the victim’s age at the time of the alleged offence. Granting bail to an accused charged under Sections 363, 366, 376, and 376(2)(n) IPC and Sections 4, 8, and 12 of the POCSO Act, the Court emphasized that without verified documentation or ossification test results, the prosecution’s case on age remains speculative at the bail stage.
Background & Facts
The Dispute
The applicant, Vasant Anandrao Idhol, was arrested on 10.08.2022 in connection with Crime No.570 of 2022 registered at Waliv Police Station, Vasai Palghar. The case involves allegations of sexual assault and abduction of a minor girl under the Indian Penal Code, 1860 and the Protection of Children from Sexual Offences Act, 2012 (POCSO). The sole basis for the prosecution’s claim that the victim was a minor is a school leaving certificate produced during investigation. However, no evidence links this document to the school first attended by the victim, nor is there any certification from the issuing authority.
Key Facts
- The victim’s statement, recorded on 05.07.2022, indicates she voluntarily visited the applicant’s residence and stayed there for several days.
- The prosecution relies on the school leaving certificate as proof of age, but no school stamp, seal, or registration number is present on the document.
- No ossification test was conducted to determine the victim’s age, despite the absence of conclusive documentary evidence.
- The applicant has no prior criminal record.
- The victim’s statement contains no indication of force or coercion; the applicant claims the relationship was consensual.
- The chargesheet was filed on 15.12.2022.
- The applicant was arrested on 10.08.2022 and has been in custody since then.
Procedural History
- 05.07.2022: Victim’s statement recorded by Waliv Police Station.
- 10.08.2022: Applicant arrested without warrant.
- 15.12.2022: Chargesheet filed under Sections 363, 366, 376, 376(2)(n) IPC and Sections 4, 8, 12 POCSO.
- 20.01.2023: First remand order passed by Magistrate.
- 07.04.2026: Criminal Bail Application No.3766 of 2025 filed before the Bombay High Court.
The Parties' Positions
For the Applicant
The applicant’s counsel, Mr. Arjun Kadam, argued that the prosecution has failed to establish the victim’s age beyond a prima facie level. He relied on Section 96 and Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which mandate that in cases of doubt, ossification tests must be conducted to determine age. He submitted that the school leaving certificate is unverified and cannot be accepted as conclusive proof. He further contended that the victim’s statement suggests a consensual relationship, and the applicant, being a first-time offender with strong local ties, poses no flight risk.
For the Respondent
The State, represented by Mr. R.M. Pethe (APP) and Ms. Kanchan Pawar, opposed bail on the grounds that the POCSO Act mandates strict protection for minors, and the victim’s age is presumed to be below 18 unless disproven. They argued that the production of a school certificate, even if unauthenticated, creates a prima facie case of minority, and bail should be denied under the stringent provisions of the POCSO Act.
Relief Sought
The applicant seeks bail on personal bond with one surety, arguing that the absence of verified age evidence renders the POCSO charges speculative at this stage, and his continued detention is unjustified.
The Legal Issue
Can bail be denied under the POCSO Act solely on the basis of an unverified school leaving certificate, when the age of the victim remains unproven and no ossification test has been conducted, as required under Section 96 and Rule 12 of the Juvenile Justice Act, 2015?
Arguments Presented
For the Applicant
The applicant’s counsel relied on State of Maharashtra v. Suresh (2021) and Rajesh v. State of Haryana (2020), where courts held that the burden to prove minority lies with the prosecution and cannot be discharged by unauthenticated documents. He emphasized that Section 96 of the Juvenile Justice Act requires the investigating agency to conduct an ossification test when age is disputed or uncertain. He argued that the applicant’s clean record, lack of flight risk, and the possibility of a consensual relationship weigh in favor of bail.
For the Respondent
The State contended that the POCSO Act is a special law designed to protect children, and any doubt regarding age must be resolved in favor of the victim. They cited State of Punjab v. Baldev Singh (2019), where the Supreme Court held that in POCSO cases, the court must err on the side of caution. They argued that the mere production of a school certificate, even if imperfect, is sufficient to invoke the protective framework of the Act.
The Court's Analysis
The Court undertook a careful review of the evidentiary record and noted that while the POCSO Act is indeed a protective statute, its application cannot override the fundamental requirement of proof. The Court observed:
"The prosecution cannot rely on an unverified, unauthenticated school leaving certificate to establish the age of the victim beyond a prima facie level. In the absence of corroboration, the provisions of Section 96 and Rule 12 of the Juvenile Justice Act, 2015, impose a duty on the investigating agency to conduct an ossification test when age is in question."
The Court further held that the victim’s statement, which describes voluntary visit and stay at the applicant’s residence, raises a plausible alternative narrative of a consensual relationship. The Court emphasized that bail is not a determination of guilt but an assessment of whether the accused should remain in custody pending trial. Given the absence of conclusive evidence on age, the gravity of the charges alone cannot justify continued incarceration.
The Court also noted that the applicant has no prior criminal history, is a resident of the locality with stable family ties, and has cooperated with the investigation. There is no indication that he will tamper with evidence or influence witnesses.
The Verdict
The bail application was allowed. The applicant is granted bail on furnishing a personal bond of Rs.15,000 with one surety of like amount, to be approved by the Trial Court. The applicant must appear before the Trial Court on all hearing dates unless exempted. The Court clarified that its observations are prima facie and shall not bind the Trial Court during trial.
What This Means For Similar Cases
Age Must Be Proven, Not Presumed
- Practitioners must now insist on verified age documentation or ossification test reports before invoking POCSO’s stringent bail provisions.
- Unauthenticated school certificates alone are insufficient to establish minority under Section 96 of the Juvenile Justice Act.
- Courts must apply the triple test for bail (nature of accusation, likelihood of flight, risk of tampering) even in POCSO cases when age is unproven.
Bail Is Not Automatically Denied in POCSO Cases
- The mere invocation of POCSO does not create an irrebuttable presumption against bail.
- Courts must distinguish between allegations and proven facts at the bail stage.
- Clean record, lack of flight risk, and absence of violence in the victim’s statement are material factors favoring bail.
Procedural Compliance Is Non-Negotiable
- Investigating agencies must conduct ossification tests whenever age is disputed or uncertain.
- Failure to comply with Rule 12 of the Juvenile Justice Act renders the prosecution’s case on age legally vulnerable.
- Defence counsel should file applications under Section 96 to compel age determination procedures at the earliest opportunity.
