Bail In POCSO Case Cannot Be A Mechanical Consequence Of Chargesheet: Calcutta High Court Cancels Bail For ‘Serious Infirmity’

“It Is Surprising To Note… Bail Granted Within 10 Days Without Any Change In Circumstances”, In a stern pronouncement underscoring judicial responsibility in cases involving child sexual abuse, the Calcutta High Court on 02 March 2026 set aside an order granting bail to an accused charged under Section 376(3) of the IPC and Section 6 of the POCSO Act.

Justice Bivas Pattanayak held that the Trial Court’s decision to grant bail merely upon submission of the chargesheet, despite earlier rejecting bail on merits, reflected “non-application of mind” and was vitiated by “serious infirmity”.

The Court, exercising jurisdiction under Section 439(2) CrPC, cancelled the bail granted on 20 July 2024 and directed the accused to surrender within ten days, observing that in grave POCSO offences, bail cannot be granted “as a matter of course”.

The case originated from a complaint lodged on 29 May 2024 by the mother of a 14-year-old girl alleging repeated sexual exploitation by the accused, who was her English tutor and a civic volunteer attached to the local police station. An FIR was registered under Section 376(3) IPC and Section 6 of the POCSO Act.

The accused first sought anticipatory bail under Section 438 CrPC, which was rejected on 21 June 2024 considering the seriousness of the allegations. After surrendering, his regular bail application was again rejected on 10 July 2024. The Trial Court at that stage observed that there were incriminating materials indicating that the accused might have established physical relations with the minor “with the knowledge that she has not attained 18 years”.

However, on 16 July 2024, a chargesheet was filed. Within four days, on 20 July 2024, the same court granted bail to the accused primarily on the ground that investigation had been completed.

Aggrieved, the de facto complainant approached the High Court seeking cancellation of bail.

“The Court Granting Bail Should Exercise Its Discretion In A Judicious Manner And Not As A Matter Of Course”

The High Court undertook a close scrutiny of the impugned order and found it legally unsustainable.

Justice Pattanayak noted that the victim’s statement under Section 164 CrPC categorically alleged penetrative sexual assault, blackmail through obscene photographs, repeated coercion, and even a suicide attempt due to trauma. The medical report also recorded that the victim had undergone sexual intercourse with her tutor.

Despite these materials, the Trial Court granted bail solely because the chargesheet had been submitted. The High Court remarked:

“It is surprising to note that the same court which held in its earlier order that there are sufficient incriminating materials against the accused, proceeded to grant bail… without any change in the circumstances save and except filing of the chargesheet.”

The Court emphasized that filing of a chargesheet does not automatically dilute the gravity of the offence or neutralize the prima facie materials already recorded.

Reiterating settled bail principles, the Court observed:

“The court granting bail should exercise its discretion in a judicious manner and not as a matter of course.”

It further stressed that even at the stage of bail, the court must indicate reasons reflecting consideration of the nature and gravity of the charge, severity of punishment, prima facie satisfaction, and impact on society. An order devoid of such reasoning “would suffer from non-application of mind.”

“Offences Against Children Are Offences Against Society”

The High Court underscored that the POCSO Act is a special legislation enacted to address child sexual abuse with child-centric procedures.

Referring to Supreme Court precedents, the Court observed:

“Commission of such offences cannot be taken lightly as offences of private nature and in fact, such offences are bound to be taken as offences against the society.”

The Court found that the Trial Court had failed to appreciate the object and spirit of the POCSO Act, and had granted bail in a mechanical manner without considering the seriousness of aggravated penetrative sexual assault, which carries stringent punishment.

Maintainability: High Court Can Examine Perversity In Bail Order

A key argument raised by the accused was that since the Trial Court had earlier rejected an application for cancellation of bail on the ground of alleged misconduct, and that order was not challenged, the present petition was not maintainable.

Rejecting this contention, the High Court drew a distinction between cancellation of bail on account of supervening circumstances and setting aside a bail order that is itself perverse or illegal.

Quoting from Gurcharan Singh, the Court observed:

“If… the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile… to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail.”

The Court held that examining the legality and propriety of the original bail order under Section 439(2) CrPC is well within the High Court’s jurisdiction, even if the later order refusing cancellation on misconduct grounds was not separately challenged.

Section 29 POCSO: Presumption Not Automatic At FIR Stage

The petitioner also argued that the Trial Court failed to consider the presumption under Section 29 of the POCSO Act.

While ultimately cancelling bail, the High Court clarified that the presumption under Section 29 operates upon proof of foundational facts and is primarily a rule of evidence at trial. It does not automatically arise upon mere registration of FIR.

Thus, although the argument regarding Section 29 was not accepted as an independent ground, the infirmity in the bail order stood established on broader principles of bail jurisprudence.

Bail Cancelled, Accused Directed To Surrender

Holding that the bail order dated 20 July 2024 was unsustainable in law, the High Court cancelled the bail and directed the accused to surrender before the Trial Court within ten days, failing which coercive steps were to be taken.

The ruling stands as a clear message that in serious POCSO prosecutions, judicial discretion must be exercised with reasoned analysis and sensitivity to the legislative intent. Bail cannot be treated as a routine consequence of filing of chargesheet when prima facie materials disclose grave allegations against a minor.

Date of Decision: 02/03/2026