Can consent of the prosecutrix after attaining majority be considered in bail applications under the POCSO Act?

Yes. This judgment holds that when the prosecutrix, after attaining majority, voluntarily consents to the accused’s release, resides with him, and has a child with him, such consent is a material factor that courts must consider in exercising bail discretion under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023.

Does the gravity of offences under Section 376(2)(n) IPC and POCSO Act automatically disqualify an accused from bail?

No. While these offences carry serious penalties, this judgment clarifies that judicial discretion under Section 483 permits bail where exceptional circumstances-such as prolonged cohabitation, child birth, and voluntary reconciliation-exist, even if the offence is grave.

Is an affidavit from the prosecutrix sufficient to support a bail plea in a POCSO case?

An affidavit alone is not conclusive, but when corroborated by an in-chamber verification confirming the absence of coercion and the victim’s voluntary intent-as done in this case-it becomes a powerful evidentiary factor supporting bail.

POCSO bail consent cohabitation Madhya Pradesh HC

In a significant exercise of judicial discretion, the Madhya Pradesh High Court has granted regular bail to an accused in a POCSO and IPC case where the minor prosecutrix, now an adult, has expressed unequivocal consent to his release and continues to reside with his family. The judgment underscores that in exceptional factual matrices involving prolonged cohabitation, child birth, and voluntary reconciliation, the rigidity of statutory gravity must yield to the imperatives of justice and human dignity.

Background & Facts

The Dispute

The applicant, Rasu, aged 23 at the time of application, is accused of committing rape upon a minor girl, now aged 21, under Sections 363, 366, 376(2)(n), 376(3) of the Indian Penal Code and Sections 5L/6 and 5(j)(ii)/6 of the Protection of Children from Sexual Offences Act, 2012. The crime was registered as Crime No. 393/2025 at Police Station Shivgarh, District Ratlam, Madhya Pradesh. The applicant has been in custody since 18.12.2025.

Key Facts

The alleged incident occurred in the year 2023, when the prosecutrix was a minor
The complaint was filed in 2025, over two years after the incident
During the period between 2023 and 2025, the applicant and prosecutrix lived together as husband and wife
A child was born out of their relationship
The prosecutrix, now aged 21, is currently residing with the parents of the applicant along with the child
The charge sheet has been filed and the statement of the prosecutrix has been recorded under Section 164 CrPC
The prosecutrix filed an affidavit dated prior to 05.05.2026, stating she had no objection to the grant of bail to the applicant
The Court personally examined the prosecutrix in chambers and confirmed that the affidavit was filed voluntarily, without duress or coercion
The prosecutrix expressed her willingness to grant bail for the sake of her child’s future

Procedural History

2023: Alleged incident occurred
2025: Crime No. 393/2025 registered at Police Station Shivgarh
18.12.2025: Applicant taken into custody
Prior to 05.05.2026: Prosecutrix filed affidavit consenting to bail
05.05.2026: Bail application filed under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023
05.05.2026: Hearing before Justice Sandeep N. Bhatt, High Court of Madhya Pradesh at Indore

Relief Sought

The applicant sought regular bail on the grounds of prolonged cohabitation, birth of a child, voluntary consent of the prosecutrix, and the prolonged duration of trial. He requested release on personal bond with surety, subject to conditions.

The Legal Issue

The central question was whether the gravity of offences under the POCSO Act and IPC, particularly Section 376(2)(n), can be mitigated by the voluntary consent and cohabitation of the prosecutrix after attaining majority, and whether such peculiar circumstances warrant the exercise of judicial discretion to grant bail despite the statutory seriousness of the charges.

Arguments Presented

For the Appellant/Petitioner

Counsel for the applicant argued that the facts of the case are extraordinary: the parties lived together for approximately two years, a child was born, and the prosecutrix, now an adult, has unequivocally consented to the applicant’s release. He emphasized that denying bail under these circumstances would serve no punitive or deterrent purpose and would instead harm the child’s welfare. He relied on the principle that courts must consider the totality of facts, particularly where reconciliation is genuine and voluntary.

For the Respondent/State

The Government Advocate opposed bail on the ground of the gravity of the offences, particularly under Section 376(2)(n) IPC and POCSO, which attract mandatory minimum punishment. However, he conceded that the Court may consider the totality of facts and pass an appropriate order, thereby leaving the discretion to the Court.

The Court's Analysis

The Court undertook a nuanced evaluation of the facts, distinguishing this case from typical POCSO prosecutions where the victim is a minor, isolated, and unwilling. Here, the prosecutrix, now an adult, has not only consented to the applicant’s release but has chosen to reside with his family and raise their child. The Court noted that the affidavit was filed voluntarily and was corroborated by an in-chamber verification.

"Therefore, considering the totality of the facts and circumstances of the case and considering the fact that the applicant is behind the bars since 18.12.2025 and trial will take some more time to conclude and in view of the peculiar facts of the case now the parties are willing to settle the matter and in fact the prosecutrix is staying with the parents of the present applicant, I am of the opinion that no fruitful purpose would be served to deny the bail in these peculiar facts and circumstances of the case."

The Court held that the statutory gravity of the offences, while significant, does not preclude the exercise of judicial discretion under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023. It emphasized that bail is not a reward but a procedural safeguard, and in exceptional cases where the victim’s autonomy and welfare are aligned with the accused’s release, the court must act in the interest of justice. The Court rejected the notion that consent of the victim is irrelevant in POCSO cases, particularly where the victim has matured and voluntarily chosen to remain with the accused.

The Verdict

The applicant succeeded. The Court granted regular bail on the condition that he furnish a personal bond of Rs. 50,000 with one solvent surety of like amount, to be approved by the trial court. He must appear before the trial court on all dates fixed during the trial and abide by the conditions under Section 480(3) of the Bhartiya Nagrik Suraksha Sanhita, 2023. The bail order remains effective until the conclusion of the trial, but shall become void upon any breach of conditions or bail jump.

What This Means For Similar Cases

Practitioners must now argue that post-majority consent, especially when coupled with cohabitation and child-rearing, constitutes a compelling ground for bail in POCSO cases
The mere fact of prior minority does not automatically negate the victim’s current autonomy
Affidavits and in-chamber verifications of the victim’s willingness are now critical evidence

Judicial Discretion Overrides Mechanical Application of Gravity

Courts must avoid rigid application of "gravity of offence" as a blanket bar to bail
The ratio here establishes that exceptional factual matrices - where the victim and accused have formed a de facto family unit - warrant individualized assessment
Bail applications in POCSO cases must now include detailed affidavits, evidence of cohabitation, and proof of the victim’s current wishes

Trial Delay Must Be Factored into Bail Decisions

Prolonged pre-trial custody, especially where trial timelines are uncertain, strengthens the case for bail
Courts are now expected to weigh the duration of custody against the likelihood of trial conclusion
This judgment provides a framework for arguing against indefinite detention in cases with reconciled parties

POCSO Act Bail Jurisprudence | Prosecutrix's Consent and Cohabitation Override Gravity of Offence: MP HC Grants Bail Under BNSS Section 483