In a significant development for bail jurisprudence in sexual offence cases, the Allahabad High Court has granted anticipatory bail to an accused where the alleged victim herself admitted to a consensual relationship and cast doubt on her minor status, highlighting the need to balance procedural safeguards with the reality of evidence.
Background & Facts
The Dispute
The applicant, Yogesh Kumar, is accused in Crime No. 0173 of 2025 registered at Police Station Nidhauli Kala, District Etah, under Sections 137(2), 64(1), 352, 351(2) of the B.N.S. and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012. The allegation is that he enticed away the minor daughter of the first informant, who was reportedly 17 years old at the time of the incident.
Key Facts
- The first informant filed the FIR alleging abduction and sexual assault of his 17-year-old daughter.
- The victim’s statement under Section 180 of the B.N.S.S. revealed she left her home voluntarily after being scolded by her parents and did not know the applicant.
- Subsequently, under Section 183 of the B.N.S.S., she revised her statement, admitting she had been in a consensual relationship with the applicant for one and a half years and that no wrongdoing had occurred.
- The school leaving certificate indicated the victim was 17 years and 1 month old on the date of the incident.
- An ossification test report estimated her age at 18 to 19 years, raising serious doubt about her status as a minor under the POCSO Act at the time of the alleged offence.
- The applicant has no prior criminal record.
- The charge-sheet has been filed, concluding the investigation phase.
- The applicant has been in custody since 05.04.2026.
Procedural History
- 05.04.2026: Applicant arrested and taken into custody.
- Before 03.06.2026: Charge-sheet filed in Crime No. 0173 of 2025.
- 03.06.2026: Criminal Misc. Bail Application No. 19274 of 2026 filed before the Allahabad High Court.
- 03.06.2026: Hearing conducted before Hon’ble Justice Arun Kumar Singh Deshwal.
The Parties' Positions
For the Applicant
The applicant’s counsel contended that the victim’s own statements undermine the prosecution’s case. She admitted to leaving home voluntarily and being in a long-term consensual relationship with the applicant. The ossification test indicating an age of 18 - 19 years further negates the foundational premise of the POCSO charges. With the charge-sheet filed, no custodial interrogation remains necessary. The applicant is a first-time offender with no history of criminal conduct and has been detained for over six weeks without trial.
For the Respondent/State
The State and the first informant opposed bail but did not dispute the factual assertions made by the applicant regarding the victim’s statements or the ossification report. No counter-evidence was presented to challenge the applicant’s claims.
Relief Sought
The applicant sought release on bail during the pendency of trial, arguing that continued detention is unjustified given the evolving evidence and the absence of any need for custodial interrogation.
The Legal Issue
The central question was whether bail can be granted in a POCSO case when the alleged victim’s own statements indicate a consensual relationship and objective age verification suggests she was not a minor at the time of the alleged offence, particularly when the charge-sheet has been filed and custodial interrogation is no longer required.
Arguments Presented
For the Applicant
Counsel relied on the victim’s contradictory statements under Sections 180 and 183 of the B.N.S.S., which directly contradict the FIR’s allegations. He emphasized that the ossification test, though not conclusive, raises a reasonable doubt about the victim’s age, a critical element for invoking the POCSO Act. He cited Kapil Wadhawan v. Central Bureau of Investigation (2025 SCC OnLine SC 3038) to underscore the Supreme Court’s directive against mechanical denial of bail in cases where custody is not essential. He also invoked Maya Tiwari v. State of U.P. (2024 SCC Online All 6765), which permits bail where the allegations are seriously undermined by the victim’s own testimony. The applicant’s clean record and the completion of investigation further support the grant of bail.
For the Respondent
The State and the first informant did not contest the factual assertions regarding the victim’s statements or the ossification report. No legal argument was advanced to refute the applicant’s position on the absence of need for custody or the evidentiary contradictions.
The Court's Analysis
The Court observed that the victim’s own statements under Sections 180 and 183 of the B.N.S.S. fundamentally alter the nature of the allegations. The admission of a consensual relationship over a year and a half, coupled with the absence of any assertion of force or coercion, renders the charges under Sections 3 and 4 of the POCSO Act highly questionable. The ossification report, while not definitive, introduces a material doubt regarding the victim’s age at the time of the incident, which is a sine qua non for the applicability of the POCSO Act.
"The Court cannot ignore the fact that the alleged victim herself has stated that she left her home voluntarily and was in a consensual relationship with the applicant."
The Court noted that the charge-sheet has been filed, indicating the investigation is complete and there is no need for further custodial interrogation. The applicant has no criminal antecedents and has been in custody since 05.04.2026. The Court also took judicial notice of the nationwide crisis of jail overcrowding and the pendency of criminal trials, referencing the Supreme Court’s directives in In Re: Suo Motu Writ Petition (Crl.) No. 4 of 2021 and Pila Pahan v. State of Jharkhand to emphasize the imperative of timely bail in appropriate cases.
The Court held that while the seriousness of the allegations cannot be discounted, the evidentiary foundation has been significantly eroded by the victim’s own testimony and the age discrepancy. The balance of convenience, the absence of risk of tampering, and the applicant’s cooperation with the process weigh heavily in his favor.
The Verdict
The applicant, Yogesh Kumar, succeeded. The Court granted him bail on furnishing a personal bond of Rs. 50,000 and two sureties each in the like amount, subject to strict conditions. He must not intimidate witnesses, tamper with evidence, or commit any further offence. He is required to cooperate fully in the trial without seeking adjournments and must attend all court proceedings. The trial court is directed to transmit the bail order via the Bail Order Management System (BOMS) for immediate release. The jail superintendent and trial court must verify the applicant’s and sureties’ identity, residence, Aadhaar, and mobile number before accepting bonds. A copy of the order must be sent to the applicant via the e-prison portal and to the trial court within 24 hours.
What This Means For Similar Cases
Age Discrepancy Can Undermine POCSO Charges
- Practitioners must immediately request ossification or birth records in all POCSO cases where the victim’s age is contested.
- A victim’s own admission of consensual conduct, even if later retracted, must be treated as a material fact that may negate the essential ingredients of the offence.
- Courts must not mechanically deny bail in POCSO cases where the victim’s testimony contradicts the FIR.
Bail Is Not a Privilege But a Right When Custody Is Unnecessary
- Once the charge-sheet is filed, the presumption of need for custody is rebutted.
- The Supreme Court’s directives on jail overcrowding and delayed trials must inform bail decisions at all levels.
- Courts should not delay bail on speculative grounds when the evidence is self-contradictory.
Procedural Compliance Is Non-Negotiable
- Verification of Aadhaar, mobile number, and residence of accused and sureties is mandatory before bail is granted.
- Use of BOMS and e-prison portals for transmission of bail orders is now a judicial mandate.
- Failure to comply with e-transmission timelines may attract contempt proceedings.
