The Allahabad High Court has clarified that non-penetrative, non-sexual touching of a child, without corroboration from medical evidence or consistent testimony, does not automatically attract the gravest provisions of the POCSO Act. In granting bail, the Court emphasized that the nature of the alleged act must be assessed against the specific statutory definitions, not assumed by the mere fact of the victim’s age.
Background & Facts
The Dispute
The applicant, Mukesh, is accused in Crime No. 55 of 2026 at Police Station Kirawali, District Agra, under Section 65(2) of the Bharatiya Nyaya Sanhita (BNS) and Section 5M/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The allegations stem from a complaint filed by the victim’s father, who claimed that the applicant kidnapped his seven-year-old daughter, removed her clothes, and outraged her modesty.
Key Facts
- The victim, a seven-year-old girl, was interviewed under Sections 180 and 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)
- In her statement, the victim stated that the applicant did not remove her clothes
- She alleged that the applicant touched her bottom and licked her breasts with his tongue
- No medical report was produced to substantiate the allegations of sexual assault or penetration
- The applicant has no prior criminal record
- The applicant has been in judicial custody since 19.03.2026
- The charge sheet has been filed by the police, concluding the investigation phase
Procedural History
- 19.03.2026: Applicant arrested and taken into custody
- Between 19.03.2026 and 03.07.2026: Investigation completed; charge sheet filed
- 03.07.2026: Criminal Misc. Bail Application No. 18557 of 2026 filed before the Allahabad High Court
- 03.07.2026: Hearing conducted; no appearance by the first informant
Relief Sought
The applicant seeks bail during trial, arguing that the allegations, even if true, do not constitute rape or penetrative sexual assault under Section 3 of the POCSO Act, and that the offence, if any, falls under Section 8 (sexual harassment), which carries a maximum punishment of five years. He further contends that custodial interrogation is no longer required, and that he poses no flight risk or threat to witnesses.
The Legal Issue
The central question was whether the alleged conduct - non-penetrative touching and licking of a child’s body - without medical corroboration or consistent testimony of removal of clothes, constitutes an offence under Section 6 of the POCSO Act (penetrative sexual assault), or whether it more appropriately falls under Section 8 (sexual harassment), which is bailable and less severe.
Arguments Presented
For the Appellant/Petitioner
Counsel for the applicant argued that the victim’s own statement under BNSS contradicts the FIR. The absence of any allegation of removal of clothes or penetration negates the ingredients of Section 6 of the POCSO Act. The conduct described, while reprehensible, aligns with Section 8, which is punishable with up to three years, extendable to five. The lack of a medical report further weakens the prosecution’s case. The applicant has no criminal antecedents, has been in custody for over three months, and the investigation is complete. Reliance was placed on Kapil Wadhawan v. Central Bureau of Investigation (2025 SCC OnLine SC 3038) for the principle that bail should not be denied merely on the basis of the seriousness of the charge when custody is no longer required.
For the Respondent/State
The Additional Government Advocate for the State opposed bail but did not dispute the factual discrepancies between the FIR and the victim’s statement. No counter-evidence or rebuttal to the absence of medical proof was offered. The State did not argue that custodial interrogation was still necessary.
The Court's Analysis
The Court undertook a careful review of the victim’s statement under BNSS, noting the material divergence from the FIR. The Court observed that the prosecution’s case, as it stands, lacks the essential element of penetration or removal of clothes required to invoke Section 6 of the POCSO Act. The Court stated:
"The allegations, even if accepted at face value, do not meet the threshold of penetrative sexual assault under Section 3 of the POCSO Act. The act of touching the bottom and licking the breasts, without more, may constitute sexual harassment under Section 8, which is a non-cognizable, bailable offence under the POCSO framework."
The Court further noted the absence of any medical evidence, the applicant’s clean record, and the fact that the charge sheet has been filed, rendering custodial interrogation unnecessary. The Court emphasized the principle from Kapil Wadhawan that bail must be granted where the nature of the offence does not justify continued detention, particularly in light of prison overcrowding and judicial pendency. The Court explicitly declined to express any opinion on the ultimate guilt or innocence of the applicant, stating that its decision was confined to the procedural and statutory context of bail eligibility.
The Verdict
The bail application is allowed. The applicant, Mukesh, shall be released on bail upon furnishing a personal bond of Rs. 50,000 and two sureties each in the like amount, subject to conditions. The trial court shall issue the release order through the Bail Order Management System (BOMS) within 24 hours. The applicant must file a certified copy of this order within 15 days. The jail authorities are directed to release him upon verification of identity and sureties, and the High Court’s order shall be communicated via e-prison portal within 24 hours.
What This Means For Similar Cases
Non-Penetrative Acts May Not Trigger Section 6 POCSO
- Practitioners must carefully compare the FIR with the victim’s recorded statement under BNSS
- Absence of penetration or removal of clothes negates Section 6; Section 8 may apply instead
- Medical evidence remains critical in substantiating allegations of penetrative assault
Bail Is Not Automatically Denied in POCSO Cases
- The gravity of the charge alone cannot override the mandate of Kapil Wadhawan
- Once investigation concludes and charge sheet is filed, custodial interrogation ceases to be a valid ground for denial of bail
- Courts must assess the actual nature of the alleged act, not the label attached by the police
Procedural Compliance Is Non-Negotiable
- Release orders must be transmitted via BOMS within 24 hours
- E-prison portal and email communication to jail authorities is mandatory
- Certified copies of bail orders must be filed within 15 days to avoid procedural invalidation
