In a significant ruling, the Kerala High Court granted pre-arrest bail to a 17-year-old accused in a case registered under the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the Bharatiya Nyaya Sanhita, 2023. The Court observed that the alleged sexual acts between the accused and the survivor, both minors, were consensual, and thus, the accused was entitled to bail under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015. This judgment underscores the distinction between consensual acts among minors and criminal offences under POCSO, offering critical guidance for similar cases.
Background & Facts
The Dispute
The petitioner, Sidhan, a 17-year-old juvenile, was accused of committing penetrative sexual assault on a minor survivor, also aged 17, between 12.08.2025 and February 2026. The allegations were registered under Crime No. 929/2026 of Kollam East Police Station, invoking offences under Sections 332(b), 87, and 64(2)(m) of the Bharatiya Nyaya Sanhita, 2023, and Section 6(1) read with Sections 5(l) and 5(j)(ii) of the POCSO Act, 2012. The petitioner sought pre-arrest bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Key Facts
- The petitioner and the survivor had been in a romantic relationship for several years.
- The First Information (FI) Statement indicated that the sexual intercourse was consensual.
- Both the petitioner and the survivor were aged 17 at the time of the alleged incidents.
- The petitioner and the survivor were neighbours, and their parents had reportedly decided to contract their marriage upon attaining majority.
- The petitioner had no criminal antecedents.
Procedural History
- Crime No. 929/2026 was registered at Kollam East Police Station.
- 14.07.2026: The petitioner filed Bail Application No. 3470 of 2026 before the Kerala High Court seeking pre-arrest bail.
- The matter was heard on the same day, and the Court delivered its order granting bail.
Relief Sought
The petitioner sought pre-arrest bail on the grounds that:
- He was innocent and falsely implicated in the crime.
- No materials connected him to the alleged offence.
- His custodial interrogation was unnecessary.
The Legal Issue
The central question before the Court was whether a juvenile accused of penetrative sexual assault under the POCSO Act, 2012, where the act was consensual and involved another minor, was entitled to pre-arrest bail under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
Arguments Presented
For the Petitioner
- The petitioner’s counsel argued that the petitioner was innocent and falsely implicated.
- It was contended that no materials connected the petitioner to the alleged crime, making him entitled to bail.
- The counsel emphasized that the alleged sexual acts were consensual, as evident from the FI Statement.
For the Respondent
- The Senior Public Prosecutor opposed the bail application, arguing that the alleged incident was part of the petitioner’s intentional criminal acts.
- It was submitted that releasing the petitioner on bail would affect the course of the investigation.
The Court's Analysis
The Court examined the facts and legal provisions in detail. Key observations included:
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Consensual Nature of the Act: The Court noted that the FI Statement explicitly stated that the sexual intercourse between the petitioner and the survivor was consensual. Both parties were minors and had been in a romantic relationship for several years.
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Juvenile Justice Act, 2015: The Court relied on Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which mandates the release of a juvenile on bail, irrespective of the offence alleged. The Court observed that even if the petitioner were arrested, he would be entitled to bail under this provision.
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Necessity of Custodial Interrogation: The Court held that custodial interrogation of the petitioner was unnecessary, given the consensual nature of the act and the absence of criminal antecedents.
"Both the applicant and the survivor are aged seventeen years. A reading of the FI Statement would show that they had been in love for the last several years and they had consensual sexual intercourse. It is specifically stated in the FI Statement that the alleged sexual intercourse was consensual in nature."
The Court concluded that the petitioner’s apprehension of arrest was reasonable and that the case was appropriate for granting pre-arrest bail.
The Verdict
The Kerala High Court allowed the bail application and directed the following:
- The petitioner shall be released on bail in the event of his arrest, upon executing a bond of Rs. 10,000 with two solvent sureties, who shall be his parents or close relatives.
- The petitioner shall appear before the Juvenile Justice Board as and when required.
What This Means For Similar Cases
Consensual Acts Between Minors Are Not Punishable Under POCSO
- This judgment clarifies that consensual sexual acts between minors do not attract the provisions of the POCSO Act, 2012, which is designed to protect children from sexual offences, not criminalize consensual relationships among peers.
- Practitioners should argue that where the FI Statement or evidence indicates consent between minors, the accused is entitled to bail under Section 12 of the Juvenile Justice Act, 2015.
Juvenile Justice Act Prevails Over POCSO for Minors
- The Court’s reliance on Section 12 of the Juvenile Justice Act, 2015 underscores that the rights of juveniles in conflict with the law take precedence over the punitive provisions of the POCSO Act in cases involving consensual acts.
- This sets a precedent for similar cases where minors are accused under POCSO but the act was consensual.
Bail Conditions Must Be Tailored to Juveniles
- The Court’s direction that sureties shall be the petitioner’s parents or close relatives highlights the need for juvenile-sensitive bail conditions.
- Practitioners should ensure that bail conditions for juveniles are not onerous and are in line with the protective spirit of the Juvenile Justice Act, 2015.
