The Madhya Pradesh High Court has granted suspension of sentence in a POCSO case where the minor prosecutrix was nearly 18 years old, had voluntarily accompanied the accused, and the appellant had already served three years in custody. The judgment underscores that procedural fairness and the proximity of the minor to majority can materially influence bail and suspension decisions under exceptional circumstances, even in serious sexual offences.
Background & Facts
The Dispute
The appellant, Ajay, was convicted under Section 363, Section 366, and Section 5(1)/6 of the POCSO Act for allegedly abducting and sexually exploiting a minor girl. The prosecution claimed the girl was taken against her will and subjected to sexual abuse over eight days. However, the prosecutrix’s own statement, as recorded in the trial court, indicated she had willingly gone with the appellant and stayed with him voluntarily.
Procedural History
- 2021: Trial Court convicted appellant and sentenced him to 5 years R.I. under Section 363 IPC, 5 years R.I. under Section 366 IPC, and 20 years R.I. under POCSO Act, with fines.
- 2023: Appeal filed before the High Court under CRA No. 14766 of 2023.
- 2026: Appellant filed I.A. No. 268/2026 under Section 430 of the BNSS, 2023, seeking suspension of sentence pending appeal.
- Previous application for suspension had been rejected on merit.
Relief Sought
The appellant sought suspension of his sentence on grounds of prolonged incarceration (three years served), pending appeal, and the prosecutrix’s near-majority status and apparent consent.
The Legal Issue
The central question was whether Section 430 of the BNSS, 2023 permits suspension of sentence in a POCSO case where the minor prosecutrix was nearly 18, had voluntarily stayed with the accused, and the appeal has been pending for over three years without final hearing.
Arguments Presented
For the Appellant
Counsel argued that the prosecutrix’s age, as per the scholar register, was 17 years, 7 months, and 18 days at the time of the incident - just months short of majority. Her consistent statement that she went with the appellant voluntarily undermined the claim of abduction. The appellant had served three years in custody, and the appeal’s final hearing was delayed. Reliance was placed on State of Madhya Pradesh v. Ramesh for the principle that undue delay in appellate hearing warrants relief under Section 430.
For the Respondent/State
The State contended that POCSO cases involve grave offences against children, and suspension of sentence cannot be granted merely on the basis of near-majority or alleged consent. It cited State of Rajasthan v. Rajesh to argue that consent of a minor under 18 is legally irrelevant under POCSO, and that the gravity of the offence precludes interim relief.
The Court's Analysis
The Court acknowledged the seriousness of offences under the POCSO Act but emphasized that Section 430 of the BNSS, 2023 permits suspension of sentence if the appellate court is satisfied that the appellant is not likely to abscond and that the appeal is not frivolous. The Court noted that the prosecutrix’s age was within months of 18, and her own testimony indicated voluntary association. The Court observed that while consent does not negate criminality under POCSO, it is a relevant factor in assessing the nature of the transaction and the appellant’s mens rea.
"The fact that the prosecutrix, nearing majority, chose to stay with the appellant for eight days, and the absence of any immediate complaint, raises a legitimate question about the prosecution’s narrative of abduction and coercion."
The Court further held that the appellant’s three-year incarceration without final adjudication constituted undue hardship. The Court distinguished this case from those involving pre-pubescent victims or violent coercion, noting that the facts here presented a unique confluence of proximity to majority, voluntary conduct, and prolonged pendency.
The Verdict
The appellant won. The Court held that suspension of sentence under Section 430 BNSS is permissible in POCSO cases where the minor is near majority, the evidence suggests voluntary association, and the appeal has been pending for an unreasonable duration. The appellant’s sentence was suspended upon deposit of fines and furnishing a bail bond of Rs. 50,000 with one surety.
What This Means For Similar Cases
Consent and Proximity to Majority Are Relevant Factors
- Practitioners may now argue that near-majority status and voluntary conduct, though not legal defences, can justify suspension under Section 430 BNSS.
- Prosecution narratives must be scrutinized for inconsistencies when the minor’s own testimony contradicts the claim of abduction.
Delay in Appellate Hearing Triggers Equitable Relief
- Suspension applications must highlight prolonged pendency - three years or more - as a compelling ground.
- Courts are increasingly willing to balance procedural justice against the gravity of offence when incarceration exceeds reasonable appellate timelines.
POCSO Cases Are Not Automatically Excluded from Interim Relief
- The judgment clarifies that POCSO does not create an absolute bar to suspension.
- Courts must conduct a fact-specific inquiry into the nature of the relationship, age proximity, and delay - not apply blanket prohibitions.
