The Karnataka High Court has clarified that mere participation in a sexual offence against a minor, without direct commission of rape, does not automatically justify continued custody when the investigation is complete and the accused has no prior record. The order underscores the necessity of proportionality in bail decisions under the Bharatiya Nyaya Sanhita and POCSO Act.
Background & Facts
The Dispute
The petitioner, Akash S/o Parashuram Mantangi, a 21-year-old student, was arrested on 22.10.2025 in connection with Crime No. 183/2025 registered at Hangal Police Station, Haveri. The case arose from an alleged incident involving a minor girl, where multiple accused, including the petitioner, were implicated under the Bharatiya Nyaya Sanhita, 2023 (BNS) and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The main accused, identified as Accused No. 1, was a juvenile and is being tried separately under the Juvenile Justice (Care and Protection of Children) Act, 2015.
Key Facts
- The incident occurred on or about 21.10.2025 at a secluded location in Muduru Village, Hanagal Circle, Haveri
- The victim, a minor girl, was taken to the location by multiple accused with the alleged common intention of engaging in sexual activity
- The petitioner is accused of attempting to have sexual intercourse with the victim, but not of completing the act
- The victim, in her statement under Section 183 of BNS, stated that the petitioner attempted to have sex with her, but she pierced his eye (which was already wounded), causing him to flee the scene
- No allegation of penetration or rape was made against the petitioner in the victim’s statement
- The charge sheet was filed on 15.12.2025
- The petitioner has been in continuous custody since 22.10.2025, amounting to approximately eight months at the time of hearing
- The petitioner has no prior criminal record or convictions
- Accused No. 1, the alleged primary offender, has been granted bail
Procedural History
- 21.10.2025: Alleged incident occurred
- 22.10.2025: Petitioner arrested and taken into custody
- 15.12.2025: Charge sheet filed in Special S.C. No. 125/2025
- 22.10.2025 to 16.06.2026: Petitioner remained in custody for eight months
- 05.04.2026: Petition for regular bail filed before the Additional District and Sessions Judge, FTSC-1, Haveri
- 10.05.2026: Bail application dismissed by the Trial Court
- 16.06.2026: Criminal Petition No. 100340/2026 filed before the High Court of Karnataka at Dharwad under Section 483 of BNSS (read with Section 439 CrPC)
Relief Sought
The petitioner sought regular bail in Crime No. 183/2025, arguing that the nature of the allegation against him did not warrant continued custody, the investigation was complete, and he had no criminal antecedents.
The Legal Issue
The central question was whether regular bail can be granted to an accused under Section 351(1) read with Section 3(5) of BNS and Sections 12 and 18 of POCSO Act, where the allegation is limited to an attempt at sexual intercourse, no rape is alleged, the charge sheet is filed, custodial interrogation is unnecessary, and the accused has spent eight months in custody without prior criminal history.
Arguments Presented
For the Petitioner
The learned counsel argued that the petitioner’s role was distinct from that of the main accused, who was the alleged perpetrator of rape. The victim’s statement under Section 183 of BNS did not allege penetration or sexual intercourse by the petitioner, only an attempt. The maximum punishment for the offence under Section 351(1) read with Section 3(5) of BNS is five years, which is not a non-bailable offence per se. The charge sheet was already filed, negating the need for further custodial interrogation. The petitioner had no criminal antecedents and had been in custody for eight months without trial. Reliance was placed on Arnesh Kumar v. State of Bihar to argue against automatic denial of bail based on the nature of the offence alone.
For the Respondent
The High Court Government Pleader opposed the petition, contending that all accused acted with a common intention to commit sexual offences against the minor. The acts of Accused No. 1, including rape, were attributable to the petitioner under the doctrine of common intention under Section 34 of BNS. The gravity of offences under POCSO Act, particularly Section 18, warranted continued custody. The State argued that the nature of the crime against a minor justified strict bail conditions and that the petitioner’s release might influence witnesses.
The Court's Analysis
The Court carefully examined the victim’s statement recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The statement explicitly did not allege sexual intercourse by the petitioner. It only stated that he attempted to have sex with her, and upon her resistance - piercing his eye - he fled. The Court noted that the charge sheet had been filed, indicating the investigation was complete. The State did not assert that the petitioner posed a threat to witnesses or had any criminal antecedents.
"The victim has not alleged any act of sexual intercourse against the petitioner. It is stated that he made an attempt to have sex with the victim. However, as she pierced his eye, which was already wounded, he left the scene."
The Court held that the distinction between attempt and commission is legally significant. While the offences under POCSO and BNS are serious, the principle of proportionality must govern bail decisions. The petitioner had already spent eight months in custody, and the absence of any allegation of rape or penetration significantly reduced the risk of reoffending or witness tampering. The Court also observed that the main accused, who was alleged to have committed rape, had already been granted bail, further undermining the argument for differential treatment.
The Court rejected the State’s argument of common intention as speculative in the absence of any corroborative evidence linking the petitioner directly to the rape. The Court emphasized that bail is the rule and jail is the exception, particularly where custody has exceeded eight months without trial and the accused is a first-time offender.
The Verdict
The petition was allowed. The petitioner was granted regular bail in Crime No. 183/2025 subject to the following conditions: (i) execution of a personal bond of Rs. 2,00,000 with two sureties of the like amount to the satisfaction of the Trial Court; (ii) punctual attendance at all court hearings unless exempted; (iii) no threat, inducement, or tampering with witnesses or evidence; (iv) furnishing current address and active mobile number to the jurisdictional police, with any change intimated within 48 hours; (v) no departure from the jurisdiction without prior intimation; and (vi) no commission of any further offence. The Court clarified that these observations do not reflect on the merits of the case.
What This Means For Similar Cases
Attempt vs. Commission Matters in Bail Decisions
- Practitioners must distinguish between allegations of attempt and commission in sexual offences under BNS and POCSO when arguing for bail
- Where the victim’s statement does not allege penetration or completion of the act, courts may treat the offence as less severe for bail purposes
- The maximum punishment under Section 351(1) BNS (5 years) is a key factor in determining bailability
Custody Duration Triggers Proportionality Review
- Eight months of pre-trial custody without trial is a significant factor favoring bail, even in serious cases
- Courts are expected to weigh custodial duration against the nature of the allegation, not merely the statutory maximum
- Delay in trial cannot be used to justify continued detention
Common Intention Requires Concrete Evidence
- Mere association with the main accused does not automatically make an accused liable for the principal offence
- Prosecution must establish active participation or shared intent with corroborative evidence
- Bail cannot be denied solely on the basis of association with a more serious co-accused
