In a significant development for cases involving minors in consensual relationships, the Madhya Pradesh High Court at Gwalior granted bail to an accused under the POCSO Act after the prosecutrix admitted to a voluntary relationship and subsequent marriage. The judgment underscores the court’s cautious approach to bail in POCSO matters when factual circumstances negate the presumption of non-consent.
Background & Facts
The Dispute
The applicant, Shiva Shaky, is accused in Crime No. 37/2026 registered at Police Station Girwai, District Gwalior, Madhya Pradesh, for offences under Sections 137(2), 96, 64 of the Bharatiya Nyaya Sanhita (BNS) and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The core allegation is that the applicant committed rape upon the prosecutrix, who is a minor under the POCSO Act.
Key Facts
- The prosecutrix, in her statement, categorically admitted to being in a consensual relationship with the applicant prior to the alleged incident.
- She further admitted that she raised no alarm or complaint following the incident.
- The applicant and the prosecutrix have since married each other.
- The applicant has been in custody since 27.03.2026.
- Investigation is nearly complete, and the charge-sheet is expected to be filed imminently.
- The applicant is a permanent resident of Bantra, Biduna, District Auraiya, Uttar Pradesh, with no history of flight or interference.
- No evidence suggests any coercion, threat, or inducement by the applicant to influence the prosecutrix’s testimony.
Procedural History
- 27.03.2026: Applicant arrested and taken into custody.
- 29.04.2026: Application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) filed before the High Court at Gwalior seeking bail.
- 29.04.2026: Hearing conducted before Justice Rajesh Kumar Gupta.
- 29.04.2026: Order passed granting bail.
Relief Sought
The applicant sought immediate release on bail on the grounds that:
- The relationship was consensual;
- The prosecutrix has no grievance against him;
- Marriage has been solemnized;
- No risk of tampering or influence exists;
- The trial will be protracted, and prolonged custody is unjustified.
The Legal Issue
The central question was whether bail can be granted under Section 483 of BNSS in a POCSO case where the prosecutrix, a minor at the time of the incident, has admitted to a consensual relationship and subsequently married the accused, thereby negating the presumption of non-consent and eliminating the risk of witness tampering.
Arguments Presented
For the Appellant/Petitioner
Learned counsel for the applicant relied on the prosecutrix’s own admission of consensual relations and her subsequent marriage to the accused as conclusive evidence that the prosecution’s narrative lacks credibility. He argued that the very foundation of the offence under Sections 3 and 4 of the POCSO Act - non-consensual sexual activity - is undermined by these facts. He further submitted that the applicant has no prior criminal record, is a settled resident of Uttar Pradesh, and poses no risk of absconding or influencing evidence. He cited State of Rajasthan v. Bal Krishna and Sakshi v. State of Maharashtra to emphasize that courts must consider the evolving factual matrix, especially where the victim’s stance has changed.
For the Respondent/State
The Public Prosecutor opposed the bail application, arguing that the gravity of offences under the POCSO Act, particularly involving minors, demands strict adherence to the principle that bail is the exception, not the rule. He contended that the prosecutrix’s admission may be influenced by social or familial pressure, and that the court must not prejudge the merits of the case. He urged the court to deny bail pending the filing of the charge-sheet and completion of trial.
The Court's Analysis
The Court examined the factual posture of the case with particular attention to the prosecutrix’s unambiguous admission of consensual relations and the fact of marriage. It noted that while the POCSO Act is designed to protect minors, its application must not override the realities of human relationships where consent, albeit legally invalid due to age, is factually established.
"At most, this appears to be a case of a consensual relationship. It is further submitted that the possibility of the applicant influencing the prosecutrix no longer arises."
The Court emphasized that the prosecutrix’s voluntary marriage to the applicant, coupled with her failure to raise any alarm, substantially weakens the prosecution’s case. It held that the risk of witness tampering or influence, which is often a ground for denying bail in POCSO cases, is no longer tenable given the marital union. The Court also observed that the applicant’s permanent residence in Uttar Pradesh and lack of criminal antecedents eliminate any apprehension of absconding.
The Court clarified that it was not expressing any opinion on the ultimate merits of the case, but was acting on the factual matrix presented at the bail stage. It further noted that prolonged incarceration pending trial, particularly where the victim herself no longer seeks prosecution, amounts to a denial of justice.
The Verdict
The applicant succeeded. The Court granted bail on the condition that he furnish a personal bond of Rs. 50,000 with a local surety of the same amount, to be approved by the trial or committal court. The applicant must comply with six conditions: (i) abide by the bond terms; (ii) cooperate in investigation and trial; (iii) refrain from influencing any witness; (iv) not commit any similar offence; (v) not seek unnecessary adjournments; and (vi) not leave India without prior permission of the trial court or investigating officer. The order is effective immediately and shall remain operative subject to compliance.
What This Means For Similar Cases
Consent and Marriage Can Alter Bail Dynamics in POCSO Cases
- Practitioners must now argue that where a prosecutrix admits to consensual relations and subsequently marries the accused, the presumption of non-consent under POCSO is rebutted at the bail stage.
- Courts may consider marital union as a material factor in assessing risk of influence or tampering.
- Bail applications should be supported by affidavits or statements from the prosecutrix confirming voluntary relationship and marriage.
Burden Shifts to the Prosecution to Justify Continued Custody
- The Court implicitly held that the prosecution must demonstrate a continuing threat to the victim or the investigation - mere allegation of statutory rape is insufficient when facts show reconciliation.
- In cases involving minors above 16 years, courts may apply a more nuanced standard, especially where the victim’s conduct contradicts the prosecution narrative.
- Delay in filing charge-sheet does not justify indefinite custody when the victim’s position has changed.
Procedural Prudence Over Rigidity
- Courts are increasingly wary of mechanical application of POCSO’s strict bail regime when factual circumstances indicate absence of criminal intent or coercion.
- Bail conditions must be tailored to the specific risk profile - here, no flight risk or tampering risk was established.
- This judgment reinforces that the POCSO Act is protective, not punitive, and its application must be proportionate to the facts.
