POCSO | Anticipatory Bail Cannot Be Denied on Mere Allegations Without Evidentiary Support: Supreme Court

POCSO | Anticipatory Bail Cannot Be Denied on Mere Allegations Without Evidentiary Support: Supreme Court

“Driving a Vehicle Cannot Be Construed as Abetment of POCSO Offence…..There has been no other overt act alleged against the appellant vis-à-vis the victim. On the principle of parity and considering his limited role, he is entitled to anticipatory bail” — Supreme Court

On 3rd November 2025, the Supreme Court of India, in a significant judgment concerning anticipatory bail jurisprudence under the Bharatiya Nyaya Sanhita, 2023 (BNS) and Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), allowed an appeal , setting aside the Bombay High Court’s order that had denied him anticipatory bail in connection with an FIR involving child marriage, sexual offences under the POCSO Act, and abetment under BNS provisions.

The Bench of Justice B.V. Nagarathna and Justice R. Mahadevan concluded that mere presence or peripheral assistance without any direct or overt act is not sufficient to deny anticipatory relief, especially when co-accused with greater roles have already secured bail. The Court also confirmed the interim protection granted to the appellant earlier, directing that he be released on bail in the event of arrest on furnishing cash security of Rs. 25,000/- and two sureties.

“Appellant’s Role Limited to Driving Vehicle; No Overt Act Alleged Vis-à-Vis Victim”

The case stemmed from FIR No. 49 of 2025 dated 21.01.2025, registered at Indapur Police Station, Pune, initially under Section 137(2) of the BNS and later invoking graver charges under Section 64(2)(i)(m) of BNS, Sections 4 and 17 of the POCSO Act, and Sections 9 to 11 of the Prohibition of Child Marriage Act, 2006.

While denying bail, both the Sessions Court and the Bombay High Court had not adequately considered the limited nature of the appellant’s involvement. According to the FIR, the only role attributed to him was that he had driven the vehicle in which the minor victim was transported. The Court noted:

“There has been no other overt act which has been alleged as against the appellant vis-a-vis the victim.”

This formed the cornerstone of the Supreme Court’s reasoning in differentiating the appellant’s liability from the main accused.

“Parity Must Apply When Co-Accused With More Serious Allegations Are Granted Bail”

The appellant invoked the principle of parity, highlighting that accused Nos. 4, 5, and 6 had already been granted anticipatory bail, while two others had secured regular bail. The Supreme Court found merit in this argument, stating that:

“On the principle of parity also the appellant may be granted the relief of anticipatory bail.”

The Court made it clear that differential treatment among co-accused must be justified by differential roles, and when such distinction does not exist — or, as here, where the appellant’s role is even lesser — denial of bail becomes unjustified and contrary to Article 14.

“Presence at the Scene or Peripheral Assistance Not Enough to Deny Anticipatory Relief”: Section 482 BNSS Invoked

While granting anticipatory bail, the Supreme Court invoked Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which preserves the inherent powers of the Court to prevent miscarriage of justice.

The Bench emphasized that:

“Considering the circumstances on record, in our view, the appellant is entitled to the relief claimed under Section 482 of the BNSS.”

In a nuanced observation, the Court clarified that proximity to the scene of the offence or facilitation by conduct not amounting to criminal intent cannot be grounds to deny anticipatory bail, especially in the absence of direct allegations or incriminating material.

This interpretation marks a judicial endorsement of measured and context-specific bail adjudication, particularly in multi-accused FIRs where roles vary.

“Anticipatory Bail Confirmed; Strict Conditions Imposed To Prevent Misuse”

Having concluded that the High Court’s rejection of bail was unsustainable, the Supreme Court directed the Arresting Officer to release the appellant on bail in the event of arrest, subject to the following conditions:

• The appellant shall furnish a cash security of Rs. 25,000/- and two sureties of the like amount.
• He must cooperate with the investigation and the ensuing trial.
• He shall not misuse his liberty or influence witnesses or tamper with evidence.

By reiterating the interim protection granted earlier, the Court ensured the continuity of liberty pending final adjudication, and now through its conclusive grant of bail, safeguarded the appellant’s right under Article 21.

“Anticipatory Bail Cannot Be Denied on Mere Allegations Without Evidentiary Support”

This judgment reiterates the evolving jurisprudence under the Bharatiya Nyaya Sanhita, 2023, and BNSS, highlighting that bail decisions must not be mechanical, especially in cases where roles of the accused differ, and the material against the accused is vague or non-substantive.

The Court’s approach echoes the principle that:

“Liberty is the rule, and bail is the norm — especially when the allegations are general, and others with greater culpability have secured bail.”

The decision also sends a message to the High Courts and subordinate courts to apply anticipatory bail jurisprudence with sensitivity to proportionality, role of the accused, and equality before the law.

In quashing the Bombay High Court’s order dated 23.04.2025, the Supreme Court reaffirmed that anticipatory bail is a vital protection against arbitrary or unjustified arrest, especially when allegations are tenuous, roles are limited, and co-accused with greater culpability have already been granted bail.

The Court rightly held that the appellant’s act of driving the vehicle, in absence of any direct or sexual offence involvement, did not warrant custodial interrogation or denial of liberty, and thus directed his release on bail in the event of arrest, subject to strict conditions.

Date of Decision: 03.11.2025