The Madhya Pradesh High Court has clarified that bail may be granted in cases under Section 74 of the Bharatiya Nagarik Suraksha Sanhita (BNS) and the POCSO Act where the alleged offence involves outrage of modesty without penetration, particularly after the charge sheet has been filed and no risk of absconding or evidence tampering is evident. This decision reinforces the principle that bail is the rule and jail the exception, even in serious offences, when the factual matrix does not justify continued detention.
Background & Facts
The Dispute
The applicant, Shri Lal Sondhiya, is accused in FIR/Crime No. 77/2026 registered at Police Station Shahpur, District Mauganj, Madhya Pradesh, for offences under Section 74 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNS), Sections 7 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and Section 3(1)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The prosecution alleges that on 6.3.2026 at approximately 4:00 PM, while the prosecutrix - a minor girl - was returning from school, the applicant outrage her modesty by using criminal force.
Key Facts
- The prosecutrix is a minor, triggering application of the POCSO Act.
- The alleged act does not involve penetration or sexual assault, as explicitly noted by the Court.
- The applicant claims he has a prior personal dispute with the father of the prosecutrix, both having been employed in a company in District Kanker, Chhattisgarh.
- The applicant has been in judicial custody since 7.3.2026, a period of over 40 days at the time of the hearing.
- The charge sheet has been filed, indicating the investigation is complete and the prosecution has compiled its evidence.
- No allegation of threat to witnesses, destruction of evidence, or likelihood of absconding has been made by the prosecution.
Procedural History
- 06.03.2026: Alleged incident occurred.
- 07.03.2026: Applicant taken into custody.
- 12.05.2026: First bail application filed under Section 483 of BNS, 2023.
- 12.05.2026: Hearing before the High Court at Jabalpur.
Relief Sought
The applicant sought regular bail on the grounds that:
- He is innocent and falsely implicated due to a personal dispute.
- The charge sheet has been filed, eliminating the need for further custody for investigation.
- There is no risk of him absconding or tampering with evidence.
- The trial is likely to be protracted, and continued detention would violate his right to liberty.
The Legal Issue
The central question was whether regular bail can be granted under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 in a case involving allegations of outraging modesty under Section 74 BNS and Sections 7/8 of the POCSO Act, where the alleged act does not involve penetration, the charge sheet is complete, and there is no apprehension of flight or evidence tampering.
Arguments Presented
For the Appellant/Petitioner
Learned counsel for the applicant submitted that:
- The offence, while serious, does not amount to penetrative sexual assault and falls under the category of non-penetrative outrage of modesty.
- The applicant has been in custody since 7.3.2026, and the investigation is concluded with the filing of the charge sheet.
- There is no material suggesting the applicant will abscond or interfere with witnesses or evidence.
- The right to liberty under Article 21 of the Constitution must be balanced against the presumption of innocence.
- Precedents such as State of Rajasthan v. Balchand and Sanjay Chandra v. CBI support bail in cases where custody is prolonged without necessity.
For the Respondent/State
The State’s counsel opposed bail on the grounds that:
- The offences involve a minor girl and attract stringent provisions under POCSO and BNS.
- The nature of the crime is grave and societal interest demands strict custody.
- Bail in POCSO cases is generally denied unless exceptional circumstances are shown.
- The gravity of the allegations, even without penetration, warrants continued detention.
The Court's Analysis
The Court undertook a careful evaluation of the nature of the alleged offence, the stage of proceedings, and the absence of any risk factors. It distinguished this case from those involving penetrative sexual assault, noting that Section 74 BNS criminalizes the use of criminal force to outrage modesty, which is distinct from the more severe offences under Section 6 and 7 of the POCSO Act.
"It is not a case of penetrated sexual assault rather use of criminal force to outrage the modesty of the prosecutrix."
The Court emphasized that the filing of the charge sheet marks the end of the investigative phase, and continued custody beyond this point must be justified by concrete risks - not merely the seriousness of the charge. The Court further noted that the applicant had no history of flight or interference with justice, and no evidence suggested he would tamper with witnesses or destroy evidence.
The Court also referenced the constitutional principle that bail is the rule, jail the exception, and that prolonged pre-trial detention without necessity violates the right to personal liberty under Article 21. The Court declined to prejudge the merits of the case, stating that the decision on guilt or innocence must be left to the trial court.
The Verdict
The applicant succeeded. The Court granted regular bail on the following terms:
- The applicant shall be released on furnishing a personal bond of Rs. 50,000 with one surety of the like amount, to be approved by the trial court.
- The applicant shall comply with the provisions of Section 480(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023, including reporting to the police station as directed and not contacting the prosecutrix or her family.
- The applicant shall appear before the trial court on all dates fixed for proceedings.
- The order is effective immediately upon compliance with the bail conditions.
What This Means For Similar Cases
Bail Is Not Automatically Denied in POCSO Cases Without Penetration
- Practitioners may now argue that non-penetrative offences under POCSO Sections 7/8, coupled with Section 74 BNS, do not automatically disqualify an accused from bail.
- The absence of penetration is a critical factual distinction that courts must recognize when applying the bail calculus.
Charge Sheet Filing Shifts the Bail Balance
- Once the charge sheet is filed, the justification for custody shifts from investigation needs to trial-related risks.
- Absence of flight risk or evidence tampering becomes decisive - courts must not rely on the gravity of the charge alone.
Procedural Compliance Under Section 480(3) BNS Is Mandatory
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Courts must explicitly direct compliance with Section 480(3) BNS, which mandates conditions such as not influencing witnesses, not leaving jurisdiction without permission, and reporting to police.
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Failure to include these conditions renders the bail order legally defective.
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Always verify whether the alleged act under POCSO involves penetration or not - this determines the severity threshold for bail.
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In cases involving minors, argue for bail on the basis of completed investigation and absence of risk, not on the basis of innocence.
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Ensure bail conditions under Section 480(3) BNS are explicitly stated in the order to avoid future challenges.
