The Bombay High Court, Nagpur Bench, has granted regular bail to an accused charged under the Protection of Children from Sexual Offences Act, 2012, and the Bharatiya Nyaya Sanhita, 2023, in a case involving a consensual relationship with a 17-year-old minor. The Court emphasized that while the law does not recognize the consent of a minor, the factual matrix - including the victim’s initiative, the absence of force, and the completion of investigation - warrants bail under Article 21. The order is strictly limited to bail considerations and does not prejudge the merits of the trial.
The Verdict
The applicant won. The Bombay High Court granted regular bail to the accused charged under Sections 4 and 6 of the POCSO Act and multiple sections of the Bharatiya Nyaya Sanhita, 2023, for allegedly engaging in consensual sexual relations with a 17-year-old minor. The Court held that while consent is legally irrelevant, the circumstances - including the victim’s voluntary initiation, the absence of coercion, and the completion of investigation - justify bail under Article 21. The accused was released on a PR bond of Rs. 25,000 with one surety, subject to strict conditions including geographical restriction and no contact with witnesses.
Background & Facts
The case arose from a First Information Report filed by the mother of a 17-year-old female victim, alleging kidnapping from lawful guardianship under Section 137(2) of the Bharatiya Nyaya Sanhita. During investigation, additional charges under Sections 64(2)(f), 75(2), 351, and 352 of the BNS, and Sections 4 and 6 of the POCSO Act, were added after the victim disclosed that she had engaged in consensual sexual intercourse with the accused. The victim, who was four months short of turning 18, had reportedly contacted the accused and requested him to take her away due to parental harassment. The couple lived together for three days in a jungle area before returning to the accused’s uncle’s residence, where other family members were present. The accused was arrested on May 12, 2025, and the charge-sheet was filed shortly thereafter. The prosecution opposed bail on the grounds that the victim was a minor and that the accused resided in the same locality, posing a risk of tampering. The victim’s guardian adopted the prosecution’s stance.
The Legal Issue
Can regular bail be granted to an accused charged under Sections 4 and 6 of the POCSO Act when the sexual act was consensual, initiated by the minor, and occurred in the absence of force, threat, or exploitation, despite the legal irrelevance of the minor’s consent?
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that the relationship was consensual and rooted in mutual affection, not exploitation. The victim had voluntarily contacted the accused and requested to leave home due to parental harassment. There was no evidence of physical force, coercion, or manipulation. The accused had no prior criminal record, and the investigation was complete. The petitioner relied on the principle that bail is the rule and jail the exception, especially where the accused is not a flight risk and the trial is imminent. The counsel cited judicial precedents recognizing that in cases of consensual relationships involving near-majority minors, bail should not be automatically denied.
For the Respondent
The State and the victim’s representative contended that the POCSO Act is a protective statute designed to shield minors from sexual exploitation, and consent is legally immaterial under Section 3. The gravity of the offence, particularly under Section 6 (aggravated penetrative sexual assault), mandates strict denial of bail. The accused’s residence in the same village as the victim posed a risk of intimidation or evidence tampering. The State emphasized that the law does not permit judicial discretion to dilute the statutory mandate based on factual nuances.
The Court's Analysis
The Court acknowledged the absolute legal principle that the consent of a minor is not a defence under the POCSO Act. However, it distinguished between cases of predatory exploitation and those involving mutual affection between near-adults. The Court noted that the victim herself initiated contact, expressed distress over parental conduct, and willingly accompanied the accused. The absence of any allegation of force, threat, or deception in the charge-sheet was significant. The Court observed that the accused was arrested promptly after the complaint and that the investigation was complete, reducing the risk of evidence tampering.
"It appears that the victim herself has called the present applicant and asked him to take her away as she was fed up with the conduct of her parents as the parents were harassing her. It further appears from the statements that the applicant and the victim were having a love affair and out of that, the incident of sexual intercourse has occurred."
The Court emphasized that while the law must remain uncompromising in protecting minors, the exercise of bail jurisdiction under Article 21 requires a contextual assessment. The Court rejected the notion that all POCSO cases automatically warrant denial of bail, noting that such an approach would be mechanistic and contrary to the spirit of personal liberty. The Court clarified that its observations were strictly confined to the bail stage and would not influence the trial court’s evaluation of guilt or innocence.
What This Means For Similar Cases
This judgment provides a critical precedent for bail applications in POCSO cases involving near-majority minors in consensual relationships. Practitioners may now argue that the absence of force, the victim’s initiative, and the completion of investigation are relevant factors in bail hearings, even if consent is legally irrelevant. However, the ruling is narrowly tailored: it does not create a defence to prosecution, nor does it permit courts to ignore the statutory framework of the POCSO Act. The judgment reinforces that bail is not a denial of guilt but an exercise of liberty pending trial. Future applications must still demonstrate low flight risk, no threat to witnesses, and the absence of aggravating factors such as abuse of authority or multiple victims. The conditions imposed - geographical restriction, no contact with the victim or witnesses, and mandatory court attendance - set a template for similar cases. This decision does not apply to cases involving force, manipulation, or exploitation by adults in positions of trust.
