POCSO Act | Bail Granted for Consensual Relationship Between Minor and Young Adult Despite Statutory Prohibition : Bombay HC Nagpur

The Bombay High Court's recent bail order in Harish Ganesh Rathod v. State of Maharashtra underscores a nuanced approach to cases under the Protection of Children from Sexual Offences (POCSO) Act, 2012, where the relationship between the accused and the minor victim appears consensual. The Court distinguished between predatory offences and romantic relationships involving minors, granting bail after a year of incarceration while imposing stringent conditions to protect the victim's interests.

Background & Facts

The Dispute

The applicant, Harish Ganesh Rathod, was accused of offences under Sections 137(2), 64(2)(i), and 65(1) of the Bharatiya Nyaya Sanhita (BNS), 2023, and Sections 4 and 6 of the POCSO Act, 2012. The case arose from a missing complaint lodged by the mother of the victim, a 14-year-old girl. During the investigation, it was revealed that the applicant and the victim had eloped and were living together for three months before being traced by the police.

Key Facts

• The victim, aged 14, and the applicant, aged 21, were in a romantic relationship and had been communicating over mobile phones
• The applicant established sexual relations with the victim under the pretext of marriage
• On 23.03.2025, the victim and the applicant left their parents' homes and resided together at various locations, including Nagpur, Hingoli, and Ahilyanagar
• On 23.06.2025, both were traced by the police and brought to Pusad Police Station
• The victim’s statement indicated no complaint against the applicant, and she had become pregnant during their cohabitation, though the pregnancy was subsequently terminated
• The applicant was arrested and remained in jail for one year before filing this bail application

Procedural History

• Missing complaint lodged by the victim’s mother with Vasant Nagar Police Station
• FIR registered under Crime No. 143 of 2025 for offences under BNS and POCSO Act
• Investigation completed, and charge-sheet filed
• Bail application filed before the Bombay High Court, Nagpur Bench (Criminal Application No. 619 of 2026)

The Parties' Positions

For the Applicant

The applicant’s counsel argued that:

• The victim and the applicant were in a consensual relationship and had eloped voluntarily
• The victim’s statement indicated no grievance against the applicant
• The applicant was 21 years old at the time of the incident, and the investigation was complete
• The applicant had been in jail for one year, and further detention was unnecessary

For the State and Victim

The State and the victim’s counsel opposed the bail application on the grounds that:

• The victim was a minor (14 years old) and incapable of giving valid consent under the law
• The applicant, being 21, was aware of the victim’s age and had established sexual relations with her, leading to pregnancy
• The consent of a minor is legally irrelevant, and the applicant’s actions constituted a serious offence under the POCSO Act

Relief Sought

The applicant sought bail on the grounds of prolonged incarceration, completion of investigation, and the consensual nature of the relationship.

The Legal Issue

The central question before the Court was whether bail should be granted in a case under the POCSO Act where:

• The victim was a minor but had voluntarily eloped with the accused
• The relationship appeared consensual, and the victim had no complaint against the accused
• The accused was a young adult (21 years old) and had been incarcerated for one year without trial

Arguments Presented

For the Applicant

The applicant’s counsel relied on the judgment in Imran Iqbal Shaikh v. State of Maharashtra and anr. (2023 SCC OnLine Bom 1040), arguing that:

• The POCSO Act was enacted to protect children from predatory offences, not to criminalize consensual relationships between minors and young adults
• Prolonged detention of the applicant, who had no criminal intent, would be detrimental to his rehabilitation
• The victim’s statement indicated no coercion or complaint, and she had voluntarily cohabited with the applicant

For the Respondent

The State and the victim’s counsel contended that:

• The victim’s age (14 years) rendered her consent legally invalid under the POCSO Act
• The applicant, being 21, was aware of the victim’s age and had exploited her under the pretext of marriage
• The seriousness of the offences and the potential harm to the victim warranted denial of bail

The Court's Analysis

The Court engaged in a detailed analysis of the POCSO Act’s objectives and the circumstances of the case. Key observations included:

1. Distinction Between Predatory Offences and Consensual Relationships:

   "The POCSO Act has been enacted to protect children from offences of sexual assault, sexual harassment etc., and contains stringent penal provisions as to safeguard the interest and the well being of the children. The object is certainly not to punish minors in romantic or consensual relationship and brand them as criminals."

   The Court emphasized that the POCSO Act was not intended to criminalize consensual relationships involving minors, particularly where the accused is also a young adult with no predatory intent.

2. Victim’s Consent and Voluntary Cohabitation: The Court noted that the victim had voluntarily left her parents’ home and resided with the applicant for three months. While her consent was legally irrelevant due to her age, the fact that she had no complaint against the applicant weighed in favor of granting bail.

3. Age of the Applicant: The applicant was 21 years old at the time of the incident, which the Court considered a mitigating factor. The judgment in Imran Iqbal Shaikh was cited to highlight that prolonged detention of young adults in such cases could be counterproductive.

4. Completion of Investigation: The Court observed that the investigation was complete, the charge-sheet had been filed, and the applicant had been in jail for one year. These factors justified the grant of bail, subject to stringent conditions.

The Verdict

The Court allowed the bail application with the following directions:

• The applicant was released on bail on furnishing a personal recognizance (P.R.) bond of Rs. 50,000 with one surety in the like amount
• The applicant was prohibited from tampering with evidence or contacting the victim directly or indirectly
• The applicant was barred from entering the jurisdiction of Vasant Nagar Police Station until the culmination of the trial
• The applicant was required to provide his residential address and contact details to the police and inform them of any change in residence
• The applicant was mandated to attend all trial dates regularly, failing which the bail could be cancelled

What This Means For Similar Cases

Consensual Relationships Under POCSO: A Nuanced Approach

This judgment reinforces the principle that courts must distinguish between predatory offences and consensual relationships involving minors and young adults. Practitioners should argue:

• The POCSO Act’s objective is to protect children from exploitation, not to criminalize romantic relationships where no coercion is involved
• Victim’s statement and conduct (e.g., voluntary cohabitation) can be pivotal in bail applications
• Age of the accused and the duration of incarceration are relevant factors in determining bail

Bail Conditions: Ensuring Compliance Without Overreach

• Courts are likely to impose stringent conditions in POCSO cases, even where bail is granted
• Practitioners must ensure clients comply with geographical restrictions, non-contact orders, and trial attendance requirements to avoid bail cancellation
• Surety bonds and personal recognizance are standard requirements, and their amounts may vary based on the case’s gravity

The Limits of Minor’s Consent

• Consent of a minor is legally invalid under the POCSO Act, regardless of the victim’s willingness
• However, courts may consider the absence of coercion and the victim’s lack of grievance as mitigating factors in bail applications
• Pregnancy or termination of pregnancy may be viewed as aggravating factors, but their weight depends on the case’s specific circumstances