In a significant procedural directive, the Madhya Pradesh High Court has underscored the mandatory requirement under Section 35 of the Protection of Children from Sexual Offences Act, 2012 to record the victim's statement before considering bail applications in sexual offence cases. The order highlights the judiciary's role in ensuring victim protection while balancing the rights of the accused, setting a precedent for strict compliance with statutory safeguards in POCSO proceedings.
Background & Facts
The Dispute
The applicant, Vishal @ Maikal, sought regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (equivalent to Section 439 of the Code of Criminal Procedure) in connection with Crime No. 105/2026 registered at Police Station Narsinghgarh, District Rajgarh, Madhya Pradesh. The case involves grave charges under Sections 137(2), 87, 64(1), and 65(1) of the Bharatiya Nyaya Sanhita (BNS) and Sections 3 and 4 of the POCSO Act, 2012. The applicant has been in judicial custody since 13.03.2026.
Key Facts
- FIR Registration: Crime No. 105/2026, Police Station Narsinghgarh, District Rajgarh
- Offences Alleged:
- BNS: Sections 137(2) (sexual harassment), 87 (kidnapping), 64(1) (rape), 65(1) (aggravated sexual assault)
- POCSO Act: Sections 3 (penetrative sexual assault) and 4 (punishment for penetrative sexual assault)
- Custody Status: Applicant in judicial custody since 13.03.2026
- Bail Application: Misc. Criminal Case No. 25691 of 2026 filed under Section 483 BNS
Procedural History
- 13.03.2026: Applicant taken into judicial custody
- Date of Bail Application: Misc. Criminal Case No. 25691 of 2026 filed (exact date not specified)
- 10.07.2026: Hearing before the High Court; applicant seeks withdrawal of bail application with liberty to refile after victim's statement
The Parties' Positions
- Applicant/Petitioner: Sought withdrawal of the bail application with liberty to refile after the trial court records the victim's statement under Section 35 POCSO Act
- State/Respondent: Represented by Government Advocate; no opposition to the withdrawal noted
Relief Sought
The applicant sought:
- Withdrawal of the bail application with liberty to refile
- Direction to the trial court to record the victim's statement under Section 35 POCSO Act as a prerequisite for bail consideration
The Legal Issue
The central question before the court was whether Section 35 of the POCSO Act, 2012, which mandates the recording of the victim's statement at the earliest stage, must be complied with before considering a bail application in cases involving sexual offences against children. Additionally, the court had to determine the procedural safeguards necessary to ensure victim protection during bail proceedings.
Arguments Presented
For the Applicant
Learned counsel for the applicant, Shri A.K. Saxena, sought withdrawal of the bail application with the liberty to refile after the trial court records the victim's statement under Section 35 POCSO Act. While the judgment does not detail substantive arguments, the request implies recognition of the statutory mandate under Section 35 as a prerequisite for bail consideration.
The Court's Analysis
The High Court, while allowing the withdrawal of the bail application, issued critical directions to ensure compliance with Section 35 of the POCSO Act. The court emphasized the following legal principles:
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Mandatory Nature of Section 35 POCSO Act: The court observed that Section 35 requires the trial court to record the victim's statement "as a first instance" before proceeding with bail considerations. This provision is designed to protect the victim's interests and ensure their testimony is preserved at the earliest stage.
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Victim Protection and Procedural Safeguards: The court directed the In-Charge Police Station, Narsinghgarh, to:
- Keep the victim present under protection
- Provide transport facilities to record the victim's evidence
- Ensure compliance with Section 35 POCSO Act
The Special Public Prosecutor was also directed to coordinate with the police station to ensure these safeguards are implemented.
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Judicial Oversight: The court underscored the role of the judiciary in overseeing procedural compliance, particularly in cases involving vulnerable victims. The directions reflect a proactive approach to prevent secondary victimization and ensure fair trial standards.
"In-Charge Police Station- Narsinghgarh, District Rajgarh (MP) is directed to keep the victim present under protection and also provide the transport facility to record the evidence as a first instance so that the compliance of Section 35 of the POCSO Act, 2012 be ensured."
"Special Public Prosecutor is directed to ensure the presence to coordinate with the concerned Police Station for ensuring the compliance of Section 35 of the POCSO Act, 2012."
The Verdict
The High Court allowed the applicant's prayer to withdraw the bail application with liberty to refile after the trial court records the victim's statement under Section 35 POCSO Act. Key operative directions included:
- Withdrawal of Bail Application: The Misc. Criminal Case No. 25691 of 2026 was dismissed as withdrawn with liberty to refile
- Direction to Trial Court: Upon filing of the charge sheet, the trial court must record the victim's statement under Section 35 POCSO Act before considering any bail application
- Victim Protection Measures: The police station was directed to provide protection and transport facilities to the victim for recording her statement
- Prosecutorial Coordination: The Special Public Prosecutor was directed to ensure compliance with Section 35 POCSO Act
What This Means For Similar Cases
Section 35 POCSO Act Is Non-Negotiable
- Mandatory Compliance: Courts and prosecutors must treat Section 35 POCSO Act as a non-negotiable procedural requirement. Bail applications cannot be entertained until the victim's statement is recorded
- Judicial Precedent: This judgment reinforces that statutory safeguards under the POCSO Act must be strictly adhered to, even at the bail stage. Practitioners should cite this order to argue for procedural compliance in similar cases
Victim Protection Takes Priority in Bail Proceedings
- Transport and Security: Police stations and prosecutors must ensure the victim's physical presence, transport, and security during statement recording. Failure to comply may result in judicial intervention
- Proactive Role of Special Public Prosecutor: The court's direction to the Special Public Prosecutor highlights their role in coordinating with law enforcement to ensure victim protection. This sets a precedent for active prosecutorial involvement in safeguarding victims' rights
Procedural Compliance as a Prerequisite for Bail
- Bail Consideration Timeline: Bail applications in POCSO cases may now face delays until Section 35 compliance is ensured. Defence counsel must factor this into their bail strategies
- Trial Court Directions: Trial courts are likely to adopt a stricter approach in ensuring Section 35 compliance before proceeding with bail hearings. Practitioners should prepare for this procedural hurdle in sexual offence cases
