The Allahabad High Court has granted bail in a POCSO case where the victim’s testimony under Section 183 BNSS suggested mutual consent, reinforcing that bail cannot be denied merely on the basis of the seriousness of the offense when prima facie evidence supports the applicant’s claim. The judgment underscores the necessity of balancing procedural fairness with the protection of minors, setting a nuanced precedent for bail applications in sexual offense cases involving adolescent victims.
Background & Facts
The Dispute
The applicant, Pushpendra, is accused in Crime No. 103 of 2025 registered at Police Station Acchnera, District Agra, under Sections 65(1), 64(2)M, 351(2) of the Bharatiya Nyaya Sanhita (BNS), Sections 3/4(2), 5L/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and Section 3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The allegations stem from an alleged sexual relationship with a female minor aged 16 years, as determined by an ossification test.
Key Facts
- The victim is 16 years old as per the ossification report dated prior to the filing of the FIR
- The applicant claims the victim was a consenting party and that the relationship was consensual and ongoing
- The relationship allegedly occurred at multiple locations, including the house of the victim’s maternal grandmother
- The victim’s physical appearance is described as that of a major, suggesting maturity beyond her stated age
- The applicant has no prior criminal record
- The applicant has been in judicial custody since 24.05.2025
- The victim’s statement was recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) during trial
Procedural History
- 24.05.2025: Applicant arrested and taken into custody
- Between 24.05.2025 and 29.04.2026: Investigation completed, chargesheet filed, trial commenced
- 29.04.2026: Bail application filed before the Allahabad High Court under Criminal Misc. Bail Application No. 33751 of 2025
- 29.04.2026: Hearing conducted before Justice Krishan Pahal
The Parties' Positions
For the Applicant
- Asserts complete innocence and false implication
- Claims the victim was a consenting adult in all but age
- Highlights absence of criminal antecedents
- Undertakes to cooperate fully with trial proceedings
- Argues that the relationship was not coercive or exploitative
For the Respondent (State and Informant)
- Opposes bail on grounds that the victim has deposed against the applicant in court
- Argues that the nature of offenses under POCSO and SC/ST Act is grave and warrants denial of bail
- Contends that the victim’s testimony alone is sufficient to negate bail entitlement
Relief Sought
The applicant seeks interim bail during the pendency of trial, subject to conditions, pending final adjudication of the case.
The Legal Issue
Can bail be granted in a POCSO case where the victim’s recorded statement under Section 183 BNSS indicates consent, and the accused has no criminal history, despite the gravity of the charges?
Arguments Presented
For the Appellant/Petitioner
The applicant’s counsel relied on the principle that bail is the rule and jail the exception, citing Arnesh Kumar v. State of Bihar and Sushil Ansal v. State (NCT of Delhi). They emphasized that the victim’s statement under Section 183 BNSS, which indicates mutual consent and a consensual relationship, undermines the prosecution’s claim of sexual assault. The applicant’s clean record, the absence of any allegation of force or coercion, and his willingness to cooperate with the trial were presented as compelling factors favoring bail. The counsel argued that the court must not presume guilt at the bail stage and must assess the prima facie strength of the case.
For the Respondent/State
The State and informant’s counsel contended that offenses under the POCSO Act are non-bailable and inherently grave, especially when the victim is a minor. They argued that the victim’s deposition in court, even if consistent with the applicant’s version, does not negate the statutory presumption of vulnerability under POCSO. They cited State of Maharashtra v. Madhukar Narayan Mardikar to assert that the court must err on the side of caution in protecting minors, and that bail should be denied to prevent possible intimidation or tampering.
The Court's Analysis
The Court declined to express any opinion on the merits of the case or the veracity of the victim’s testimony. Instead, it focused on the procedural posture of the bail application and the evidentiary material available at this stage. The Court noted that the victim’s statement recorded under Section 183 BNSS - a provision designed to record the testimony of vulnerable witnesses during trial - indicated a consensual relationship. The Court observed that while the victim’s age is legally fixed at 16, her physical maturity and the nature of the relationship as described in her statement raise questions about the applicability of the presumption of non-consent under POCSO.
"Prima-facie the Court is of the view that the applicant has made out a case for bail."
The Court emphasized that the denial of bail cannot be automatic merely because the offense falls under POCSO or the SC/ST Act. It reiterated that the gravity of the offense is only one factor among many, and that the applicant’s clean record, the absence of allegations of force or threat, and the victim’s own account of consent collectively weigh in favor of granting bail. The Court further clarified that its observations were strictly confined to the bail stage and would not prejudice the trial’s outcome.
The Court also rejected the State’s argument that the victim’s deposition alone was sufficient to deny bail, noting that the purpose of bail is to ensure liberty pending trial unless there is a clear risk of evidence tampering or witness intimidation - neither of which was substantiated.
The Verdict
The applicant, Pushpendra, succeeded in his bail application. The Court ordered his release on bail upon furnishing a personal bond and two sureties to the satisfaction of the court, subject to verification of sureties. He is prohibited from tampering with evidence or intimidating witnesses and must appear before the trial court whenever required. Breach of any condition will result in immediate cancellation of bail. The Court explicitly stated that its observations do not affect the merits of the trial.
What This Means For Similar Cases
Consent Evidence Can Influence Bail Decisions in POCSO Cases
- Practitioners must now carefully analyze the content of victim statements recorded under Section 183 BNSS - even if the victim is a minor, evidence of mutual consent may support bail
- The mere fact of age does not automatically negate the relevance of the victim’s testimony on the nature of the relationship
- Bail applications should not be dismissed summarily on the ground of offense gravity alone
Prima Facie Assessment Trumps Presumption at Bail Stage
- Courts must conduct a preliminary, non-prejudicial evaluation of evidence available at the bail stage
- Clean record, absence of coercion, and victim’s own account are material factors under Arnesh Kumar and Sushil Ansal
- Prosecution cannot rely solely on the nature of the charge to oppose bail without demonstrating specific risks
Procedural Safeguards Must Be Balanced with Liberty
- The judgment reinforces that bail is not a reward but a right, subject to conditions
- Courts are directed to avoid automatic denial of bail in POCSO cases without examining the factual matrix
- Defense counsel should proactively highlight victim statements indicating consent, absence of force, and lack of prior criminality to strengthen bail pleas
