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Judicial Discretion in POCSO Bail: A Crucial Shift in Legal Thinking
Judicial Discretion and POCSO Bail: Empowering Fair Justice
Context: Recently, a special POCSO court in Mumbai granted bail to a 40-year-old female teacher accused of sexually assaulting a teenage boy, citing the apparent consensual nature of their relationship as a key factor. This case reflects the growing judicial willingness to consider relational context and the victim’s statement while exercising discretion in bail decisions under the POCSO Act.
What Legal Framework Governs Bail under POCSO and What Discretion Does the Judiciary Have?
- The Protection of Children from Sexual Offences Act (POCSO), 2012 is a special legislation enacted to safeguard children (below 18 years) from sexual offences. While it criminalises all sexual activity involving minors irrespective of consent, it does not provide explicit statutory guidelines for bail, making judicial discretion the cornerstone of bail decisions.
Key Judicial Considerations:
- Age of both parties and age gap
- Nature of relationship (romantic/voluntary or coercive)
- Medical evidence – contradictions or lack thereof
- Delay in FIR or inconsistencies in the victim’s statement
- Possibility of false implication (e.g., family enmity)
- Length of custody and trial delay
These are not statutory benchmarks, but evolving judicial norms, enabling courts to humanise justice without compromising child protection.
- Under procedural law, bail applications are now governed by Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023—replacing Section 439 of the CrPC.
- This provision allows Sessions and High Courts to grant bail, considering: Nature and gravity of the offence, Risk of flight or tampering with evidence, Severity of punishment & Conduct of the accused post-offence.
- However, in POCSO cases, courts are required to weigh constitutional liberties against the best interests of the child. Importantly, POCSO reverses the burden of proof (Section 29), placing the onus on the accused to prove innocence, further complicating bail prospects.
Which Judicial Precedents Shape Bail Decisions in POCSO Cases, and What Factors Have Emerged as Key Considerations?
- Dharmander Singh v. State (Delhi HC, 2020): The court suggested considering the age of the victim and accused, age gap, relationship dynamics, coercion, and accused’s post-offence conduct. Though not binding, this judgment remains widely cited.
- X Juvenile vs. State of U.P. (Allahabad HC, 2024): Bail was granted under the Juvenile Justice Act, ruling that gravity alone cannot deny bail to a minor.
- Mohammad Bilal v. State of Himachal Pradesh (2025): Bail was allowed due to excessive pre-trial custody (3+ years), citing the constitutional right to a speedy trial (Article 21).
How Do Legal Grey Zones Impact Judicial Discretion and Bail Outcomes?
One of the most contested legal grey zones in POCSO cases involves consensual romantic relationships between adolescents, especially when the girl is just below 18 and the boy slightly older.
- No Recognition of Consent Under 18: As per Section 2(d) of the POCSO Act, consent is legally irrelevant if the victim is below 18, making even mutually consensual acts criminal. This creates a paradox where adolescent love is criminalised.
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- Example: In the 2024 Deshraj @ Musa case, despite the apparent consent, the boy was in jail for five months before bail was granted by the Supreme Court.
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- Pending Debate on Lowering Age of Consent: In an ongoing matter, Senior Advocate Indira Jaising urged the Supreme Court to consider reducing the age of consent to 16, highlighting how criminalising adolescent relationships infringes on bodily autonomy and personal liberty (Article 21).
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- However, the Centre’s affidavit warned that any such relaxation could “undermine protective legal frameworks and expose children to greater exploitation”.
What Recent Trends Highlight Evolving Judicial Approaches in POCSO Bail Jurisprudence?
Courts in recent years are increasingly acknowledging the sociological and psychological complexity behind certain POCSO cases, especially involving adolescent consent, false implication, and delayed trials.
- Increasing Reliance on Victim’s Statement: If the victim has recorded a voluntary statement before a magistrate under Section 164 CrPC, indicating no coercion, courts have considered granting bail even if the law doesn’t recognise consent.
- Greater Recognition of Prolonged Pre-Trial Detention: Echoing principles from Economic Survey 2022-23, which highlighted judicial pendency and its impact on undertrial populations, courts are increasingly granting bail where trials are delayed without charges framed (Mohammad Bilal, 2025).
- Role of Medical and Documentary Evidence: Medical evidence contradicting the allegations has been key in Pitamber @ Pitu vs. State of U.P. (2025)—where lack of injury or assault led the court to grant bail.
- Diverging State Practices Around Anticipatory Bail: Earlier, states like Uttar Pradesh had blanket bars on anticipatory bail in POCSO matters. But post Sushila Aggarwal v. State (2020, SC), anticipatory bail cannot be denied outright, though courts still apply stricter scrutiny.
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- Legal Trend: Courts now allow interim protection in genuine cases while ensuring evidence preservation and victim protection.
