Section 29 POCSO Act | Statutory Presumption Not Absolute At Bail Stage, Minor's Apparent Consent Is A Mitigating Factor: Bombay High Court

"There is no doubt that presumption under Section 29 exists but it is not an absolute presumption. This Court is of the opinion that presumption would come into play only when prosecution is able to bring on record facts that would prima facie form the foundation for the presumption." Bombay High Court has held that the statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is not absolute at the stage of bail and does not require courts to accept the prosecution's allegations as gospel truth.

A single-judge bench of Justice Milind N. Jadhav observed that where an adolescent minor between 15 to 18 years voluntarily elopes and enters into a relationship without any violence or force, such apparent consensus serves as a vital mitigating circumstance for granting bail. The court emphasized that the prosecution must first establish foundational facts to activate the statutory presumption, granting bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to a 29-year-old accused who had married a 16-year-old girl.

The applicant approached the High Court seeking regular bail in connection with C.R. No. 51 of 2026 registered at Harsul Police Station for offences under the Bharatiya Nyaya Sanhita, 2023 (BNS), the POCSO Act, the Child Marriage Restraint Act, and the SC/ST (Prevention of Atrocities) Act. The First Information Report had been lodged on May 4, 2026, by the minor prosecutrix's father after an unexplained delay of six days from when she went missing from her home. The record revealed that the prosecutrix had voluntarily eloped, solemnized marriage in the presence of family members, and cohabited with the applicant for over a month without any tracing efforts initiated by the informant.

The primary legal question before the court was whether the statutory presumption under Section 29 of the POCSO Act operates as an absolute bar against the grant of bail in cases involving minor victims. The court was also called upon to determine whether the voluntary consensus of a minor between the ages of 15 and 18 years, coupled with the absence of force or violence, constitutes a valid mitigating circumstance to enlarge an accused on bail under Section 483 BNSS.

Victim's Statement Prima Facie Shows Consensual Cohabitation Without Force

Scrutinizing the record, the bench closely examined the victim's statement recorded under Section 183 BNSS, noting that she had left her home voluntarily and resided with the applicant for more than a month following a marriage ceremony. The court underscored that despite an allegation concerning an exchange of money among relatives, the statement read as a whole indicated an association devoid of any violence, abuse, or coercion.

The bench remarked that the timeline and surrounding circumstances left several questions unanswered, particularly since the informant took no immediate steps to locate his daughter during the month-long cohabitation. The court ruled that at the threshold stage of bail, the victim's own statement enured to the benefit of the applicant, offering strong prima facie grounds for relief.

Statutory Presumption Under Section 29 POCSO Requires Foundational Facts

Addressing the statutory bar and presumption ingrained in Section 29 of the POCSO Act, the court clarified that the provision cannot be applied mechanically to incarcerate an accused without evaluating the essential factual matrix. The bench observed that the presumption only triggers once the prosecution brings on record prima facie foundational facts.

The court reiterated that if the statutory presumption were treated as automatic, all that the prosecution would be required to do is to raise some allegation against the accused person and claim that the case projected by it is true. The bench stressed that courts must remain on guard to ensure that the uncritical invocation of legal presumptions does not result in grave injustice prior to trial.

Adolescent Consensual Relationships Constitute Mitigating Grounds For Bail

Drawing substantial support from the precedent in Sajid Mehendi Hasan Khan v. State of Maharashtra, the court referred extensively to the landmark principles laid down in Sunil Mahadev Patil v. State of Maharashtra regarding adolescent love affairs. The court noted that while consent of a minor is legally immaterial to establish statutory guilt, obvious consent in the age group of 15 to 18 years is an indispensable mitigating factor at the bail stage.

The bench recalled that modern teenagers undergo biological and sexual maturation and face varied social and peer influences, meaning criminal courts cannot ignore the intention or motive behind the act at the stage of assessing personal liberty. Denying bail merely because the victim is below 18 years, without examining whether the act involved violence, criminal antecedents, or intimidation, was characterized as an erroneous approach.

Reliance Placed On Kerala High Court Precedent In Joy v. State of Kerala

The bench further derived support from the Kerala High Court's ruling in Joy v. State of Kerala, which ruled that patent absurdities or inherent improbabilities in the prosecution version weaken the statutory presumption under Section 29. The court noted that statutory presumption does not mean the prosecution version has to be accepted as gospel truth, and any material casting serious doubt on the veracity of the case enables the court to grant bail.

The court also cited the Supreme Court's decisions in S. Varadarajan v. State of Madras and Siddharam Satlingappa Mhetre v. State of Maharashtra, reiterating that where a minor voluntarily leaves guardianship with the capacity to understand the import of her actions, and where prosecution versions exhibit frivolity or doubt, personal liberty must be safeguarded.

Faint Line Between Punitive And Reformative Incarceration Of Young Accused

Emphasizing the perils of prolonged pre-trial incarceration, the bench observed that keeping a young offender behind bars is likely to worsen his prospects of success in life and expose him to custodial abuse. The court highlighted that there is a very faint line between a punitive and a reformative approach when dealing with young individuals entangled in consensual relationships.

Consequently, the High Court allowed the bail application, directing the applicant's immediate release upon furnishing a personal recognizance bond of Rs. 25,000 with one or two sureties. The court imposed strict conditions, requiring the applicant to report to the police station on the first Sunday of every month, attend trial dates without seeking unnecessary adjournments, refrain from leaving Maharashtra without court permission, avoid contacting the prosecutrix through any physical or electronic means until the verdict, and refrain from tampering with evidence or witnesses.

The court commended appointed legal aid counsel Mr. Akshay Patil for his valuable assistance to the victim and directed the payment of his fees through the High Court Legal Aid Services Authority pursuant to the Maharashtra State Legal Services Authority Rules. The bench clarified that all observations were strictly prima facie in nature and would not prejudice the substantive trial.

In conclusion, the High Court established that the statutory presumption under Section 29 of the POCSO Act cannot override judicial discretion where foundational facts are doubtful and the relationship is shown to be non-violent and consensual. The ruling reinforces that the apparent consent of an adolescent minor acts as a crucial mitigating circumstance preventing unjustified pre-trial detention under Section 483 BNSS.

Date of Decision: October 12, 2026