Patna High Court
Rajo Mahto @ Lav Kashyap @ Raja MahtoversusThe State of Bihar
- Decided
- Disposal
- BAIL REJECTED
- Bench
- CHANDRA SHEKHAR JHA
Holding
The court held that bail could not be granted as the victim’s statement established a prima facie case and no statutory right to bail existed under Section 35(2) of the POCSO Act.
Summary
The petitioner, Rajo Mahto, sought bail in a Special POCSO case alleging penetrative sexual assault on a 16‑year‑old girl. The petitioner argued that the case was politically motivated and that the medical examination found no injury, suggesting a weak prosecution. The prosecution countered that the victim’s recorded statement under Section 183 of the Bhartiya Nyaya Sanhita established a prima facie case and that lack of injury does not negate rape, which is a legal determination. The court noted that the charge was framed and that Section 35(2) of the POCSO Act does not confer a bail right in such circumstances. Consequently, the bail application was rejected, and the trial court was directed to complete the trial within nine months, after which the petitioner may renew the bail plea.
Issues considered
- Whether bail should be granted to the accused in a POCSO case where the victim has made a statement under Section 183 of the BNSS.
- Whether the absence of medical injury negates the charge of penetrative sexual assault.
- Whether Section 35(2) of the POCSO Act provides a right to bail for the accused.
Legislation cited
- Bhartiya Nyaya Sanhita, 2023 — s. 126(2), 183, 351(2) read with 3(5), 65(1), 74, 75(1), 77
- Protection of Children from Sexual Offences Act, 2012 — s. 12, 35(2), 4, 8
Subjects
- bail
- POCSO
- sexual assault
- minor
- medical evidence
- BNSS
- trial delay
- section 35(2)
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.72278 of 2025
Arising Out of PS. Case No.-16 Year-2025 Thana- GHOSWARI District- Patna
======================================================
Rajo Mahto @ Lav Kashyap @ Raja Mahto, S/o Madho Mahto @ Radha
Mohan Kashyap, R/o Village-Karkayin, P.S.- Ghoswari, District- Patna
... ... Petitioner
Versus
1. The State of Bihar
2. Munni Devi, W/o Vinod Thakur, R/o Village-Karkayin, P.S.-Ghoswari,
District- Patna
... ... Opposite Parties
======================================================
Appearance :
For the Petitioner/s : Mr. Krishna Prasad Singh, Senior Advocate
with Ms. Sakshi Deep, Advocate
Mr. Rakesh Singh, Advocate
For the Opposite Party/s : Mr. Sanjay Kumar Tiwary, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
4 25-02-2026 Heard learned senior counsel for the petitioner and
learned Additional Public Prosecutor for the State.
2. The accused/petitioner seeks bail in connection
with Special POCSO Case No.57 of 2025 arising out of
Ghoswari P.S. Case No.16 of 2025 registered for the offences
punishable under Sections 126(2), 74, 75(1), 77, 65(1),
351(2) read with 3(5) of the Bhartiya Nyaya Sanhita, 2023
(for short ‘B.N.S.’) as well as Sections 4, 8 and 12 of the
Protection of Children from Sexual Offences Act, 2012 (in
short ‘POCSO Act’).
3. The accused/petitioner is named in the FIR and
Patna High Court CR. MISC. No.72278 of 2025(4) dt.25-02-2026
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is in custody since 05.06.2025.
4. As per FIR, the petitioner committed penetrative
sexual assault upon minor daughter of the informant aged
about 16 years.
5. Mr. Krishna Prasad Singh, learned senior counsel
appearing for the petitioner submitted that the petitioner has
been implicated with this case due to local village politics. In
support of his submission, it is pointed out by Mr. Singh that
the victim was medically examined on very next day of the
occurrence but, no injury in or around her private part was
found. It is submitted that petitioner is in custody since
05.06.2025 and in last six months, only single prosecution
witness was examined in this case, suggesting that the trial
would not conclude in near future.
6. Learned APP while opposing the prayer for bail
submitted that the victim alleged petitioner specifically as to
commit rape/penetrative sexual assault in terms of her
statement as recorded under Section 183 of the BNSS. It is
submitted that the non-finding of injury does not lead to
conclusion ipso facto that rape/penetrative sexual assault was
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not committed upon her, as rape is a legal finding and not a
medical one. It is submitted that charge in this matter was
framed on 31.07.2025 and further, the time period nowhere
suggest that even any legal right accrued in terms of Section
35(2) of the POCSO Act in favour of petitioner.
7. In view of aforesaid factual submissions and by
taking note of fact as victim has specifically stated against this
petitioner as to commit rape upon her through her statement
recorded under Section 183 of the BNSS, accordingly, the
prayer of bail of petitioner stands rejected, for the present.
8. As petitioner remains in custody since
05.06.2025, therefore, the learned trial court is directed to
conclude the trial preferably within nine months, failing which
the petitioner may renew his prayer of bail, if so advised.
(Chandra Shekhar Jha, J.)
Sanjeet/-
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