Can consent of a minor be used as a defense in a POCSO case?

No. Under the POCSO Act, 2012, consent of a person below 18 years is legally irrelevant. Any sexual activity with a minor is an offense regardless of consent, as held in State v. Arjun and affirmed in this judgment.

Does the absence of force in a POCSO case entitle the accused to bail?

Not automatically, but it is a material factor. This judgment holds that where the prosecutrix admits to consensual relations, no force is alleged, investigation is complete, and no flight risk exists, bail under Section 483 BNSS may be granted despite the nature of the offense.

Is bail denied in all POCSO cases regardless of facts?

No. This judgment clarifies that bail cannot be denied solely on the ground that the offense is under POCSO. Courts must consider the specific facts, including the nature of the relationship, presence of force, investigation status, and risk of flight.

POCSO bail consent minor Rajasthan HC

The Rajasthan High Court has granted bail to an accused in a POCSO case where the prosecutrix, though a minor, admitted to a consensual relationship with no allegation of force or coercion. The judgment underscores that while consent of a minor is legally irrelevant under the POCSO Act, the absence of violent or non-consensual conduct may still warrant bail under procedural safeguards, provided there is no risk of flight or tampering with evidence.

Background & Facts

The Dispute

The petitioner, Pukhraj Jakhar, a 20-year-old resident of Mornavada, Jodhpur, was arrested in connection with F.I.R. No. 250/2025 registered at Police Station Kherapa, District Jodhpur Rural. The case involves allegations under Sections 137(2) and 64(2) of the Bharatiya Nyaya Sanhita (BNS), 2023, and Sections 3/4, 5L/6, and 11/12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The prosecutrix, identified as a 17-year-old girl, allegedly had a consensual physical relationship with the petitioner.

Key Facts

The prosecutrix and the petitioner were in a romantic relationship and intended to marry
On or about November 2025, the prosecutrix voluntarily left her home and accompanied the petitioner on his motorcycle to Rampura, Bhilwara
She stayed with him for approximately three days in a hut, during which time other laborers were also present
The prosecutrix did not allege any force, threat, or non-consensual intercourse in her statements
The relationship was described by her as consensual and based on mutual affection
The FIR was registered after parental pressure, according to the petitioner’s counsel
The prosecutrix’s statement under Section 183 BNSS, recorded on 04.12.2025, confirmed her age as 17 and her voluntary association with the petitioner
The charge sheet was filed on 20.12.2025
The petitioner has been in custody since 05.12.2025

Procedural History

04.12.2025: Statement of prosecutrix recorded under Section 183 BNSS
05.12.2025: Petitioner arrested and lodged in Central Jail, Jodhpur
20.12.2025: Charge sheet filed by police
04.05.2026: Bail application filed under Section 483 BNSS before the High Court of Judicature for Rajasthan at Jodhpur

Relief Sought

The petitioner sought bail under Section 483 of the Bharatiya Nyaya Sanhita, 2023, on grounds of prolonged custody, absence of force in the allegations, completion of investigation, and no risk of fleeing justice.

The Legal Issue

Can bail be granted under Section 483 BNSS in a POCSO case involving a minor where the prosecutrix admits to consensual sexual relations and no force or coercion is alleged, despite the legal impossibility of consent being a defense?

Arguments Presented

For the Petitioner

Counsel for the petitioner, Mr. J.R. Chawel, argued that the prosecutrix’s statement under Section 183 BNSS clearly indicated that she went with the petitioner voluntarily, stayed with him for three days in the presence of others, and engaged in physical relations with her full consent. No allegation of rape, threat, or abduction was made. The investigation was complete, the charge sheet filed, and the petitioner had no history of prior offenses. Counsel emphasized that the FIR was registered under parental pressure and that the petitioner posed no risk of absconding or tampering with evidence. Reliance was placed on the principle that bail is the rule and jail the exception, particularly where the prosecution has not demonstrated any danger to the investigation.

For the Respondent

The Public Prosecutor, Mr. Narendra Gehlot, opposed bail on the ground that the offense falls under the POCSO Act, which is a stringent statute designed to protect minors. Counsel for the complainant, Mr. M.L. Bishnoi, reiterated that any sexual activity with a minor below 18 years is per se an offense under the POCSO Act, regardless of consent. He argued that granting bail in such cases would undermine the legislative intent and send a wrong message to society.

The Court's Analysis

The Court carefully examined the prosecutrix’s statements recorded under Section 183 BNSS, noting that she explicitly stated she was in a consensual relationship with the petitioner, that they intended to marry, and that no force or coercion was used. The Court observed that while the law does not recognize the consent of a minor as a defense under the POCSO Act, the absence of any allegation of violence, threat, or abduction is a material factor in bail adjudication.

"She does not state of any rape or forceful intercourse with her."

The Court emphasized that the purpose of bail under Section 483 BNSS is not to determine guilt or innocence but to assess whether the accused should remain in custody pending trial. The prosecution failed to demonstrate any apprehension of the petitioner fleeing justice or interfering with witnesses. The Court noted that the investigation was complete, the charge sheet filed, and the petitioner had been in custody for over four months without any indication of flight risk. The Court further clarified that it was not expressing any opinion on the merits of the case or the eventual liability under the POCSO Act.

The Verdict

The bail application under Section 483 BNSS was allowed. The petitioner, Pukhraj Jakhar, shall be released on bail upon furnishing a personal bond of Rs. 50,000 and two sureties of Rs. 25,000 each, to the satisfaction of the trial court. He must appear before the trial court on every hearing date and whenever summoned until the conclusion of the trial. The order is subject to the condition that he is not wanted in any other case.

What This Means For Similar Cases

Practitioners must argue that while consent of a minor is legally void under the POCSO Act, the absence of force, threat, or abduction is a relevant factor in bail applications
Courts may distinguish between cases involving violence and those involving consensual adolescent relationships when assessing flight risk and interference with evidence
Bail should not be automatically denied merely because the offense falls under POCSO

Procedural Compliance and Investigation Status Are Critical

Once the charge sheet is filed and investigation closed, the prosecution bears a higher burden to justify continued custody
Prolonged pre-trial detention without demonstrated risk of flight or tampering may violate Article 21
Courts are likely to favor bail where the accused has no prior record and the complainant’s statement does not support allegations of violence

Judicial Caution Against Overreach in POCSO Bail Matters

The judgment reinforces that bail decisions must be based on facts, not the mere label of the statute
Lawyers should highlight prosecutrix statements, presence of third parties, and absence of forensic or medical evidence of force
This ruling provides a roadmap for arguing bail in consensual POCSO cases where the minor’s testimony is consistent and non-accusatory

POCSO Act | Consent of Minor Irrelevant for Offense; Bail Granted Where No Force or Flight Risk Established : Rajasthan HC