1. Bail application under POCSO Act for sexual assault of a minor; victim and applicant were in a consensual relationship. (Para 3 , 4 , 5 )
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2026 Supreme(Online)(UK) 1225
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Alok Mahra, J
Tushar Sharma – Appellant
Versus
State – Respondent
BA1 No. 2403 of 2025
Important Points
In cases under the POCSO Act involving consensual relationships between adolescents, courts may adopt a liberal approach toward granting bail, considering the victim's maturity and the lack of violence, notwithstanding the statute's stringent nature.
Subject
Criminal - Bail
Act Referred
Headnote
(A) Bail - POCSO Act - Consensual relationship - Where the statement of the victim indicates a romantic relationship and consent, and the prosecutrix demonstrated sufficient maturity to comprehend her actions, a liberal approach towards bail is warranted to prevent the adverse effects of prolonged incarceration. (Para 11, 12, 13)
(B) Discretionary Jurisdiction - Stringency of Statutes - The stringent nature of the POCSO Act does not preclude the Court from exercising its discretionary jurisdiction to grant bail if the facts and circumstances of the case justify it to secure the ends of justice. (Para 10)
Issues: Whether the applicant is entitled to bail in a case of alleged sexual assault under the POCSO Act where the relationship was consensual.
(B) Discretionary Jurisdiction - Stringency of Statutes - The stringent nature of the POCSO Act does not preclude the Court from exercising its discretionary jurisdiction to grant bail if the facts and circumstances of the case justify it to secure the ends of justice. (Para 10)
Issues: Whether the applicant is entitled to bail in a case of alleged sexual assault under the POCSO Act where the relationship was consensual.
Legal Category Hierarchy
Advocates:
For the Appellants/Petitioners: Shubhang Dobhal
For the Respondents: Prabhat Kandpal
For the Appellants/Petitioners: Shubhang Dobhal
For the Respondents: Prabhat Kandpal
Table of Contents
2. Applicant argued consensual relations with minor above 16 years; State opposed bail citing stringent POCSO provisions. (Para 5 , 6 , 7 )
3. Victim's statement shows consent and maturity; POCSO rigour does not preclude bail where facts warrant ends of justice. (Para 9 , 10 , 11 )
4. In consensual adolescent relationships, liberal bail approach warranted to prevent adverse effects of prolonged incarceration. (Para 12 )
5. Bail allowed; applicant to be released on personal bond and two sureties to the satisfaction of the court. (Para 14 , 15 )
6. Does the stringent nature of the POCSO Act preclude a court from granting bail?
No, the rigour of the POCSO Act does not preclude the court from exercising discretionary jurisdiction to grant or refuse bail if facts and circumstances warrant it to secure ends of justice. (Para 10 )
7. Can consent of a minor prosecutrix be considered for bail under the POCSO Act?
Yes, the court can consider the victim's consent, maturity, and discernment in consensual adolescent relationships for granting bail, even though the victim is legally a minor. (Para 9 , 11 )
8. What approach should courts adopt in bail cases involving young offenders and consensual relationships between adolescents?
Courts should adopt a liberal approach to prevent regressive and adverse influences of prolonged incarceration and further the principle of best interest of both parties. (Para 12 )
Hon’ble Alok Mahra, J.
Mr. Shubhang Dobhal, learned counsel for
the applicant.
2. Mr. Prabhat Kandpal, learned A.G.A. for
the State.
3. The applicant – Tushar Sharma @ Tannu,
who is in judicial custody in connection with
FIR/Case Crime No. 73 of 2025, under Sections
5(l)/6 of POCSO r/w Section 65(1) of BNS and
Section 88 of BNS, registered at P.S.- Kotwali
Tanakpur, District Champawat, has sought his
release on bail.
4. In this case, an FIR was lodged on
08.07.2025 by the mother of the victim, in
which, it was alleged that applicant has sexually
assaulted her minor daughter. After
investigation, chargesheet was filed against the
applicant under Sections 5(l)/6 of POCSO r/w
Section 65(1) of BNS and Section 88 of BNS.
5. Learned counsel for the applicant would
submit that at the time of incident, the
applicant was 23 years of age and the victim
was above 16 years. They were having
friendship and relations were made
consensually and this is also corroborated by
the statement of the victim. The victim and the
complainant have also been examined as PW1
and PW2. It is further submitted that the
applicant is languishing in jail since 08.07.2025.
6. To support his case, learned counsel for
the applicant has relied upon a judgment
passed by Hon’ble High Court of Delhi in the
case of Varun Kumar Singh Vs. State. For ready
reference, paragraph nos. 23, 24 and 25 of the
aforesaid judgment are extracted hereinbelow:-
“23. The present is not a case where
prosecutrix has been subjected to any
violence or brutality, rather it is case in which
the prosecutrix appears to be in romantic
relationship with petitioner and willingly went
with him to Agra. As noted above, even in the
FIR it is alleged that prosecutrix and the
petitioner were friends.
24. Further, the prosecutrix as well as the
mother of the prosecutrix and other public
witnesses have already been examined.
Therefore, there is no question of petitioner
exerting any influence on the said witness.
25. Furthermore, the petitioner is in
custody since 23.08.2023 i.e. for about 2
years and 5 months. It is also not the case of
the prosecution that the petitioner has any
previous involvements. The presence of the
petitioner during trial can otherwise, be
ensured by putting appropriate conditions.”
7. Learned State Counsel, on the other hand,
vehemently opposed the bail application.
8. Heard learned counsel for the parties and
perused the records.
9. Statement of the victim recorded as PW1
under Section 183 of BNSS would reveal that
she had liking for the applicant and physical
relations made between them were by the
consent of the victim.
10. Insofar as the offences punishable under
the provisions of Protection of Children from
Sexual Offences Act, 2012 are concerned, it is
pertinent to observe that although the
provisions of the said statute are stringent in
nature, such rigour does not preclude the Court
from exercising its discretionary jurisdiction to
grant or refuse bail, where the facts and
circumstances of the case so warrant, in order
to secure the ends of justice.
11. The material on record indicates that the
prosecutrix had voluntarily left her parental
home and accompanied the applicant of her
own volition. It is, no doubt, true that under the
purview of the POCSO Act, the prosecutrix is
legally a minor; however, the facts of the
present case reveal that she was possessed of
sufficient understanding, maturity, and
discernment to comprehend the nature and
consequences of her actions, and that she had
voluntarily joined the company of the applicant.
12. It is well settled by a catena of decisions
of the Hon’ble Supreme Court as well as various
High Courts that, in cases involving young
offenders and consensual relationships between
adolescents, a liberal approach may be
warranted at the stage of bail, so as to prevent
the regressive and adverse influences of
prolonged incarceration and to further the
principle of best interest of both the parties
involved.
13. Considering the above facts and also
considering the fact that applicant and victim
were having friendship and relat
