POCSO Act Section 6 | Minor’s Consent Irrelevant for Bail; Prolonged Custody & Cooperation Justify Relief Under Section 439 CrPC : Karnataka HC

The Karnataka High Court's recent order in Shreedhar S. v. State of Karnataka underscores a nuanced approach to bail under the Protection of Children from Sexual Offences (POCSO) Act, 2012. While reaffirming that a minor's consent is legally invalid, the Court granted bail after considering the accused's prolonged custody, cooperation, and the absence of coercion evidence. This judgment highlights the delicate balance between statutory protections for minors and the discretionary power of courts in bail matters.

Background & Facts

The Dispute

The petitioner, Shreedhar S., a 24-year-old farmer from Kuduthini, Ballari District, was accused of offences under Sections 137(2), 64, 65(1), 96, and 351(2) of the Bharatiya Nyaya Sanhita (BNS), 2023, Sections 4 and 6 of the POCSO Act, 2012, and Section 9 of the Prohibition of Child Marriage (Karnataka Amendment) Act, 2016. The complaint was filed by the victim's father, Prakash, alleging that the petitioner kidnapped his 16-year-old daughter on 29.08.2025.

Key Facts

• The victim and petitioner were acquainted, as their families lived in the same village
• The victim's father filed a complaint on 29.08.2025 at 10:00 p.m., alleging his daughter had been missing since 08:00 p.m. the same day
• The victim returned home two days later, wearing a ‘Thali’ (sacred thread), suggesting a marital ritual
• In her statement (page 92 of the records), the victim admitted to a consensual relationship with the petitioner, including hugging, kissing, and a sexual act on 02.07.2025 near a government hospital
• On 28.08.2025, the petitioner took the victim to Venuvirapura Village, where he tied a ‘Thali’ around her neck and took her to his aunt's house
• The victim returned home on 29.08.2025 and revealed the events to her father

Procedural History

• 29.08.2025: Crime No. 120/2025 registered at Kuduthini Police Station
• Post-investigation: Charge sheet filed, leading to Special Case No. 1274/2025 before the Additional District and Sessions Judge, Ballari
• 19.06.2026: Present criminal petition (Crl.P No. 104974/2025) filed under Section 439 CrPC (Section 483 BNSS, 2023) seeking regular bail

Relief Sought

The petitioner sought bail pending trial, arguing:

• The alleged acts were consensual, though the victim's consent is invalid under law
• The investigation was complete, and custodial interrogation was unnecessary
• The petitioner had already spent 9 months in custody and was willing to abide by bail conditions

The Legal Issue

The central question was whether bail could be granted under Section 439 CrPC in a case involving POCSO Act offences, where the victim's consent - though legally invalid - appeared to be factually present, and the accused had already undergone prolonged custody without evidence of coercion.

Arguments Presented

For the Petitioner

• The victim's statement suggested consensual acts, though her consent is irrelevant under Section 6 of the POCSO Act
• The investigation was complete, and the petitioner posed no flight risk or threat to witnesses
• Prolonged custody (9 months) warranted bail, as custodial interrogation was no longer necessary
• Reliance was placed on precedents like Vijay Chand Dubey v. State of Maharashtra and Deshraj alias Musa v. State of Rajasthan, where bail was granted in similar POCSO cases despite statutory prohibitions

For the Respondent/State

• The offences were heinous, and the victim's consent was irrelevant under law
• The evidence collected formed a strong case against the petitioner
• Release on bail could jeopardize the trial, as the petitioner might tamper with evidence or influence witnesses

The Court's Analysis

The Court acknowledged that the victim's consent is no defence under the POCSO Act, as the law prioritizes the protection of minors regardless of factual consent. However, the Court emphasized that bail is not automatically denied in such cases, especially when:

• The accused and victim knew each other, and the victim's statement suggested cooperation rather than coercion
• The victim returned home wearing a ‘Thali’, indicating a marital context rather than abduction
• The investigation was complete, and the petitioner had spent 9 months in custody without any indication of non-cooperation

"Though the consent of the victim is not consent in the eye of law since she is aged under 18, the Court is of the view that the factors referred to above may be taken into consideration while considering the petition seeking bail. More so in a situation where the investigation is over and the accused has spent around 9 months in custody."

The Court distinguished the case from typical POCSO matters by noting the absence of coercion and the familial relationship between the parties. It relied on precedents where bail was granted in POCSO cases, holding that discretion under Section 439 CrPC must be exercised based on individual facts rather than a blanket prohibition.

The Verdict

The Court allowed the petition and granted bail to the petitioner subject to the following conditions:

• Execution of a personal bond of ₹1,00,000 with two sureties for the like sum
• Reporting to the Investigating Officer on the third Saturday of every month between 10:00 a.m. to 7:00 p.m. for the first three months, and thereafter as required
• Cooperation with the trial, including attendance on all dates unless exempted, failing which the prosecution could seek revocation of bail
• No influence over witnesses or tampering with evidence
• No travel outside the court's jurisdiction without prior permission
• Notification of address or contact changes to the Investigating Officer
• Revocation of bail for any violation of the above conditions

What This Means For Similar Cases

Bail Is Not Automatically Denied Under POCSO Act

• Courts may exercise discretion under Section 439 CrPC even in POCSO cases, especially when the facts suggest consensual acts and prolonged custody without coercion
• Precedents matter: Reliance on cases like Vijay Chand Dubey and Deshraj alias Musa demonstrates that blanket denial of bail is not mandatory under POCSO

Consent of Minor Is Irrelevant, But Context Matters

• While Section 6 of the POCSO Act renders a minor's consent invalid, courts may consider factual cooperation as a mitigating factor in bail hearings
• Marital or familial contexts (e.g., ‘Thali’ ceremony) may influence the court's perception of the severity of the offence

Stringent Conditions Can Ensure Trial Cooperation

• Courts may impose strict bail conditions to mitigate risks of witness tampering or non-cooperation, such as:
  • Regular reporting to the Investigating Officer
  • Restrictions on travel
  • Mandatory attendance during trial
  • Revocation clauses for violations
• Practitioners should propose reasonable conditions to address prosecution concerns while seeking bail

Prolonged Custody Without Coercion Evidence Favours Bail

• Nine months of custody without evidence of coercion or flight risk strengthens bail pleas
• Defence counsel should highlight cooperation during investigation and willingness to abide by trial conditions
• Prosecution must justify continued custody with specific risks (e.g., tampering, absconding) rather than relying on the gravity of the offence alone