The Allahabad High Court has reaffirmed that bail cannot be denied in POCSO cases merely due to the gravity of the offence or the absence of corroborative medical evidence, especially where the FIR is delayed and key allegations lack substantiation. This order underscores the constitutional right to liberty and the necessity of balancing public interest with procedural fairness in sexual offence prosecutions.
Background & Facts
The Dispute
The applicant, Mohd. Saif, is accused of committing penetrative sexual assault on an 8-year-old male victim under Sections 96, 351(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNS), and Sections 5M and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The case was registered as Crime No. 163 of 2025 at Police Station Nizamabad, District Azamgarh. The victim’s mother, the first informant, filed the FIR on 15.06.2025, alleging that the applicant had sexually assaulted the child and recorded a video of the incident. The applicant was arrested on 09.05.2025 and has remained in judicial custody since then.
Key Facts
- The alleged incident occurred on or about 09.05.2025
- FIR was lodged on 15.06.2025 - a delay of 37 days
- Medico-legal examination of the victim conducted on 16.06.2025 revealed no internal or external injury
- The father of the victim and husband of the first informant, Pappu Ahmad, stated in his statement under Section 180 BNSS that he neither saw nor heard about any video of the alleged incident
- No video evidence was recovered during investigation
- The applicant has no prior criminal record
- The applicant has been in custody since 09.05.2025
- Trial has not commenced; no charges have been framed
Procedural History
- 09.05.2025: Applicant arrested and remanded to judicial custody
- 15.06.2025: FIR registered at PS Nizamabad, District Azamgarh
- 16.06.2025: Medico-legal report submitted, showing no injury
- 20.06.2025: Chargesheet filed by police
- 25.06.2025: Trial court rejected earlier bail application
- 28.05.2026: Present bail application filed under Section 483 BNSS
- 29.05.2026: Hearing before the High Court
The Parties' Positions
For the Applicant
The applicant’s counsel contended that:
- The applicant is innocent and falsely implicated
- The 37-day delay in filing the FIR is unexplained and raises doubt about the veracity of the allegations
- The medico-legal report conclusively negates the claim of penetrative assault
- No video evidence was recovered despite the FIR’s specific allegation
- The father of the victim explicitly denied knowledge of any video
- The applicant has no criminal antecedents
- The applicant undertakes to comply with all bail conditions
- The trial is unlikely to conclude soon due to heavy pendency
For the Respondent/State
The State and the first informant opposed bail, arguing that:
- The offence under POCSO Act is heinous and warrants strict denial of bail
- The age of the victim and nature of the alleged crime make it a serious threat to societal values
- The delay in FIR does not automatically invalidate the complaint
- The absence of injury does not disprove assault, especially in child victims
- The court must err on the side of caution in POCSO cases
Relief Sought
The applicant sought release on bail pending trial, with conditions to ensure non-interference with the investigation and trial process.
The Legal Issue
The central question was whether bail can be granted in a POCSO case where the FIR is delayed, the medico-legal report shows no injury, no corroborative evidence (such as video) exists, and the accused has no criminal history - without prejudging the merits of the case.
Arguments Presented
For the Appellant/Petitioner
The applicant’s counsel relied on Arnesh Kumar v. State of Bihar and Sushila Aggarwal v. State (NCT of Delhi) to argue that bail is the rule and jail is the exception, even in serious offences. He emphasized that the absence of physical injury does not negate the possibility of assault, but equally, its presence is not a sine qua non for conviction. He cited State of Rajasthan v. Balchand to argue that delay in lodging FIR, especially in sensitive cases, must be reasonably explained. He further submitted that the applicant’s clean record and willingness to cooperate with the trial process make him a low flight risk.
For the Respondent/State
The State and the first informant contended that POCSO cases demand a zero-tolerance approach and that bail should be denied as a matter of public policy. They argued that the victim’s age and the nature of the alleged crime - including the claim of video recording - justify continued custody. They relied on State of Haryana v. Bhajan Lal to assert that courts must be cautious in granting bail where the allegations involve exploitation of children.
The Court's Analysis
The Court examined the nature of the allegations, the evidentiary record, and the principles governing bail under Section 483 BNSS. It noted that while POCSO cases are grave, the grant or denial of bail must be based on the specific facts of each case and not on a blanket presumption of guilt.
"The absence of any injury in the medico-legal report, coupled with the non-recovery of the alleged video and the denial of knowledge by the victim’s father, raises legitimate questions about the veracity of the allegations."
The Court observed that delay in lodging an FIR, though not fatal to the prosecution’s case, must be reasonably explained - and here, no explanation was offered. It further held that the mere fact that an offence is punishable under POCSO does not ipso facto disentitle an accused to bail. The Court emphasized that the right to liberty under Article 21 of the Constitution is fundamental and cannot be suspended merely because the charge is serious.
The Court distinguished Sushila Aggarwal, which held that bail should not be denied solely on the basis of the gravity of the offence, and applied it to the present context. It noted that the applicant’s clean record, the lack of corroborative evidence, and the prolonged period of custody without trial weighed in his favour.
The Court explicitly clarified that its decision was confined to the bail stage and did not constitute any opinion on the merits of the case. It reiterated that the trial court remains free to evaluate evidence independently.
The Verdict
The bail application was allowed. The applicant, Mohd. Saif, is directed to be released on bail upon furnishing a personal bond of Rs. 50,000 with two sureties each in the like amount. He must comply with five conditions: (i) no intimidation of witnesses or tampering with evidence; (ii) no pressure on prosecution witnesses; (iii) personal appearance before the trial court on key dates - opening of case, framing of charge, and recording of statement under Section 351 BNSS; (iv) no request for adjournment when witnesses are present; and (v) presence before the court on all fixed dates, personally or through counsel. Breach of any condition shall lead to cancellation of bail. The Court clarified that this order does not prejudge the trial’s outcome.
What This Means For Similar Cases
Bail Is Not Automatically Denied in POCSO Cases
- Practitioners must argue that gravity of offence alone cannot override the presumption of innocence
- Courts must conduct a fact-specific analysis - delay, medical evidence, witness credibility, and accused’s background are critical
- Blanket policies denying bail in POCSO cases are constitutionally suspect
Absence of Physical Evidence Does Not Preclude Bail
- Medico-legal reports showing no injury are not conclusive proof of innocence, but they are relevant to assessing risk and credibility
- The absence of corroborative digital evidence (e.g., video) must be weighed in bail decisions
- Courts cannot rely on speculative allegations without evidentiary support
Procedural Delays Matter in Bail Decisions
- Unexplained delays in FIR registration must be addressed - they may indicate fabrication or mala fide intent
- Prolonged pre-trial detention without reasonable prospect of early trial strengthens the case for bail
- Courts must consider the accused’s time in custody as part of the proportionality test
