Custodial Motherhood Deserves Compassion: Delhi High Court Grants 90-Day Interim Bail to Woman Accused Under POCSO To Care For Newborn Delivered In Jail

“Keeping in view the fact that the applicant delivered a child while in judicial custody... interim bail for a period of 90 days is granted” — Delhi High Court, in a significant order delivered by Justice Renu Bhatnagar (Vacation Judge), allowed 90 days' interim bail to a woman accused of serious offences under the POCSO Act, the IPC, and the Juvenile Justice Act, considering her custodial motherhood. The court noted, “The applicant has delivered a child while in judicial custody and is unable to properly take care of her newborn… interim bail for a period of 90 days is granted.”

The decision was rendered in the case titled Kushi vs. State (NCT of Delhi), under Bail Application No. 2090 of 2025, invoking Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This judgment underscores the delicate balance between the strict mandates of criminal law and the humane consideration of an accused's right to care for her minor children.

The applicant, Kushi, was arrested in connection with FIR No. 370/2019, registered at Police Station Burari, involving allegations of kidnapping, trafficking, and sexual offences. The charges framed include violations under Sections 363, 366, 370, 376, and 354A of the IPC, along with Sections 4 and 6 of the POCSO Act, and Section 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Initially, the applicant had been granted bail by the Trial Court. However, due to her failure to appear subsequently, the Trial Court issued Non-Bailable Warrants (NBWs) against her and declared her a Proclaimed Offender on 24.09.2024. She was re-arrested on 12.12.2024 and has remained in judicial custody since then.

During her incarceration, the applicant gave birth to a child on 12.05.2025, inside Central Jail No. 6, where she is lodged along with her two minor children — one aged around two years and the other a newborn.

While applying for interim bail, the applicant argued that her continued detention prevents her from providing basic care to her newborn. Her counsel stressed that the investigation is already complete, the chargesheet has been filed, and the co-accused have been granted bail. They also submitted that the applicant’s prior non-appearance stemmed from poverty and an inability to arrange legal representation, not from any intention to evade justice.

On the other hand, the prosecution, led by the Additional Public Prosecutor, strongly opposed the bail plea, highlighting the grave nature of the offences and warning that the applicant had already violated bail conditions earlier. The APP submitted, “The petitioner was declared a proclaimed offender… there is every apprehension that she may again jump bail if released.”

“Mere Past Default Cannot Override the Welfare of a Newborn”: Court’s Observations on the Legal Issues

Addressing the State’s objection regarding the applicant’s prior non-compliance with bail conditions, the Court remarked, “While the State opposed bail citing the petitioner’s previous non-appearance and declaration as a proclaimed offender, the Court held that the applicant’s circumstances, including childbirth in custody and inability to care for her minor children, warranted interim relief.”

The Court observed that the investigation is already concluded, and the chargesheet has been filed, noting that the co-accused are already on bail. Justice Bhatnagar further emphasized, “It is a settled principle that bail is the rule and jail is the exception… particularly when the rights of minor children, especially a newborn, are intertwined with the custody status of their mother.”

The Court also took cognizance of the Medical Status Report dated 20.06.2025, which confirmed that the applicant had indeed delivered a child while in custody and continues to reside with both her minor children in the jail premises.

Referring to the applicant’s contention of financial constraints preventing her earlier legal participation, the Court noted, “This Court is conscious of the practical realities that financial hardship often becomes an impediment for effective legal recourse... the custodial status of a mother with a newborn requires a humane approach.”

Granting interim relief, the Court stated in clear terms, “Keeping in view the fact that the applicant is in judicial custody since 12.12.2024, the investigation has already been completed, the chargesheet has also been filed by the State, the co-accused are already on bail, and the applicant is unable to properly take care of her newborn child while being in judicial custody, the applicant is granted interim bail for a period of 90 days from the date of her release.”

The Court, however, imposed strict conditions to ensure that this interim relief does not result in abuse of process. The order records, “The applicant shall not leave the NCT of Delhi without prior permission of the Court... she shall commit no offence whatsoever during the period of interim bail and shall not tamper with evidence nor influence any witness.”

Furthermore, the Court directed that the applicant must “provide her address and mobile number to the Investigating Officer/SHO concerned at the time of release, which shall be kept operational at all times during the period of interim bail.”

The applicant was ordered to furnish a personal bond of ₹25,000 along with one surety of like amount to the satisfaction of the Trial Court.

Concluding the proceedings, the Court directed, “A copy of this order be sent to the Jail Superintendent for necessary action and compliance.”

The Delhi High Court’s judgment in this case underscores that criminal law does not operate in a vacuum devoid of humanitarian considerations. While recognizing the serious nature of the offences alleged, the Court prioritized the fundamental rights of the child, remarking implicitly that custodial motherhood cannot be disregarded in the rigid application of penal laws.

By granting interim bail for 90 days, the Court reaffirmed the principle that “bail jurisprudence must balance the interest of justice with the realities of life, particularly when the welfare of innocent children is at stake.”

This decision is a telling reminder that even within the strict framework of the Bharatiya Nagarik Suraksha Sanhita, 2023, the courts retain their role as guardians of human dignity.

Date of Decision: 25 June 2025