Section 483 BNSS & POCSO Act | Negative DNA Evidence and Prosecutrix's Denial of Physical Access Justify Bail : MP HC

In a significant bail order under the Bharatiya Nagarik Suraksha Sanhita, 2023 and Protection of Children from Sexual Offences Act, 2012, the Madhya Pradesh High Court granted bail to an accused where the DNA report was negative and the prosecutrix denied any physical access. The judgment underscores the importance of objective evidence in bail considerations, particularly in cases involving minors.

Background & Facts

The Dispute

The applicant, Hemraj Shakya @ Kanha, was implicated in Crime No. 77/2026 registered at Police Station BNP Dewas, District Dewas (MP), for offences under Sections 137(2), 64(1), 65(1), 74, 75(2), 87 of the Bharatiya Nyaya Sanhita, 2023 and Sections 3 read with 4 and 7 read with 8 of the Protection of Children from Sexual Offences Act, 2012. The applicant has been in custody since 19.02.2026.

Key Facts

• On 13.02.2026, the minor prosecutrix was reported missing when she did not return from school.
• An FIR was lodged after her family failed to trace her.
• The prosecutrix was later recovered, and her statement implicated the applicant.
• The DNA report was negative, indicating no physical access.
• In her statement recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the prosecutrix stated that the applicant did not make any physical relation with her.
• The investigation is complete, and the charge-sheet has been filed.

Procedural History

• 19.02.2026: Applicant taken into custody.
• 13.07.2026: Present bail application filed under Section 483 of the BNSS before the Madhya Pradesh High Court.

Relief Sought

The applicant sought bail on the grounds of false implication, lack of physical access, and prolonged custody.

The Legal Issue

The central question was whether bail should be granted under Section 483 of the BNSS where:

1. The DNA report is negative,
2. The prosecutrix denies physical access, and
3. The applicant has been in custody for nearly five months without trial.

Arguments Presented

For the Applicant

• The applicant has been falsely implicated in the case.
• There was no physical access with the prosecutrix, as corroborated by the negative DNA report.
• The prosecutrix, in her statement under Section 183 BNSS, explicitly stated that the applicant did not make any physical relation with her.
• The investigation is complete, and the charge-sheet has been filed.
• The applicant has been in custody since 19.02.2026, and continued detention is unjustified.

For the Respondent/State

• The prosecutrix is a minor (about 14 years of age).
• Even if she went with the applicant voluntarily, the applicant, being a major, cannot escape liability under the POCSO Act.
• Granting bail would undermine the protective intent of the POCSO Act.

The Court's Analysis

The Court weighed the rival submissions and examined the case diary and statement of the prosecutrix under Section 183 BNSS. The Court noted the following critical factors:

1. Negative DNA Report: The absence of physical evidence (DNA) significantly weakened the prosecution's case.
2. Prosecutrix's Statement: The prosecutrix explicitly denied any physical access by the applicant, which aligned with the DNA report.
3. Duration of Custody: The applicant had been in custody for nearly five months without trial, raising concerns about the right to liberty under Article 21 of the Constitution of India.
4. Completion of Investigation: With the charge-sheet filed, the applicant's continued detention was not justified on investigative grounds.

The Court emphasized that while the gravity of the offence under the POCSO Act is a relevant consideration, objective evidence must guide bail decisions. The Court observed:

"Considering the rival submissions and the statement of the prosecutrix recorded under Section 183 of the BNSS so also taking note of the fact that the DNA report is negative and applicant is in custody since 19.02.2026, this Court is inclined to allow the bail application."

The Court clarified that its decision was without commenting on the merits of the case, focusing solely on the bail considerations under Section 483 BNSS.

The Verdict

The Court allowed the bail application and directed the applicant's release on the following conditions:

• Furnish a personal bond of Rs. 50,000 (Rupees Fifty Thousand Only).
• Provide one solvent surety of the like amount.
• Ensure regular appearance before the trial Court during the trial.
• Comply with the conditions enumerated under Section 480(3) of the BNSS (equivalent to Section 437(3) of the CrPC).

The Miscellaneous Criminal Case was allowed and disposed of.

What This Means For Similar Cases

Objective Evidence Must Guide Bail Decisions

• Courts must prioritize objective evidence (e.g., DNA reports, medical examinations) over allegations alone, especially in POCSO cases.
• Negative forensic reports can significantly weaken the prosecution's case and tilt the balance in favor of bail.
• Practitioners should highlight discrepancies between the prosecutrix's statement and forensic evidence to argue for bail.

Duration of Custody Is a Critical Factor

• Prolonged custody without trial raises constitutional concerns under Article 21.
• Courts are increasingly inclined to grant bail where the investigation is complete and the charge-sheet is filed, particularly if the accused has been in custody for an extended period.
• Defense counsel should emphasize the duration of custody as a ground for bail, especially in cases lacking concrete evidence.

POCSO Act Does Not Automatically Preclude Bail

• While the POCSO Act is stringent, bail is not automatically denied if the evidence does not support the allegations.
• The intent of the POCSO Act is to protect minors, but it cannot override the right to liberty where the prosecution's case is weak.
• Courts will distinguish between allegations and proven facts while considering bail under the POCSO Act and BNSS.