Patna High Court
Pratap Kumar @ Prahlad @ Prahlad KumarversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- PURNENDU SINGH
Holding
The court disposed of the pre‑arrest bail application, directing mediation and deferring any bail decision to the district court after settlement.
Summary
The petitioner, Pratap Kumar, applied for pre‑arrest bail in a case where he is charged under several sections of the Bihar Negotiable Sale Act, 2023 and Section 8 of the POCSO Act, 2012 for allegedly catching the hand of the informant’s minor daughter and attempting to abduct her, leading to a scuffle and injuries to the informant’s family. The petitioner argued that the POCSO provisions were being misused, that there was no sexual intent, and that the allegations stemmed from a longstanding village dispute, citing his clean antecedents. The informant contended that the act demonstrated sexual intent, satisfying the elements of Section 7 of the POCSO Act, and opposed bail. The court examined the statutory language, noting that even touching a child’s hand with sexual intent could attract POCSO liability, but observed that such incidents often occur without sexual intent in rural settings. Consequently, the court directed that the matter be referred to mediation under the Mediation Act, 2023, and that no coercive action be taken pending settlement, after which the district court may grant bail. The application for pre‑arrest bail was therefore disposed of with directions for mediation.
Issues considered
- Whether the alleged act of catching the minor's hand constitutes sexual assault under Section 7 of the POCSO Act, thereby justifying denial of pre‑arrest bail.
- Whether the petitioner is entitled to pre‑arrest bail in a POCSO case where sexual intent is contested.
Legislation cited
Subjects
- pre‑arrest bail
- POCSO Act
- sexual assault
- mediation
- false accusation
- criminal procedure
- child protection
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.91404 of 2025
Arising Out of PS. Case No.-454 Year-2025 Thana- NAUBATPUR District- Patna
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Pratap Kumar @ Prahlad @ Prahlad Kumar son of Late Suresh Yadav R/o -
Karai, P.S - Naubatpur, District - Patna
... ... Petitioner/s
Versus
1. The State of Bihar
2. X son of Late Rambabu Rai R/o - Karai, P.S - Naubatpur, District - Patna
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Rabi Bhushan Prasad, Advocate.
For the Informant : Mr. Amarnath Kumar, Advocate.
For the State : Mr.Sunil Kumar Pandey, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL ORDER
5 21-04-2026 Heard learned counsel appearing on behalf of the
petitioner; learned counsel for the informant and learned APP
for the State.
2. The petitioner seeks pre-arrest bail in connection
with Naubatpur P.S. Case No. 454 of 2025 registered for the
offence punishable under Sections 126(2), 115(2), 118(1), 109,
76, 352, 351(2) and 3(5) of BNS, 2023 and Section 8 of the
POCSO Act.
3. As per the allegation made in the F.I.R., the
petitioner is said to have misbehaved with the minor daughter of
the informant by catching her hand and tried to abduct her, but
she fled away. Thereafter, the petitioner along with other
accused persons assaulted the informant and his family
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members causing them injury. Both the sons of the informant
were badly injured in the occurrence.
4. Learned senior counsel appearing on behalf of the
petitioner informs this Court that this is one case in which
provision of Protection of Children from Sexual Offences Act,
2012 (hereinafter referred to as “POCSO Act”) has been
misused. Petitioner is the co-villager and there is case and
counter case between the parties. The implication of the
petitioner is on the basis of false accusation. The informant’s
side aggravated the petitioner which resulted into free fight and
for that the petitioner had lodged a case prior to the present case
being Naubatpur P.S. Case No. 453 of 2025. Learned counsel on
merits submitted that even considering the ingredients of
Section 7 of the POCSO Act, no case is made out for attracting
the penal provision that there must be intention to commit
sexual assault. In the statement recorded under Section 183
BNSS, the victim has merely stated that the petitioner had
caught hold her hand and considering the attending
circumstances that the petitioner is the co-villager and enmity
between the parties exists which may have led to lodging a false
criminal case against the petitioner. Petitioner has clean
antecedent. On these grounds, learned counsel submitted that
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the petitioner deserves to be released on pre-arrest bail.
5. Mr. Amarnath Kumar, learned counsel tendered his
appearance on behalf of the informant and submitted that the
petitioner with an intention to commit sexual assault had caught
hand of the minor daughter of the informant. The element of
sexual assault as defined under Section 7 of the POCSO Act is
made out calling punishment under Section 8 of the POCSO
Act. Learned counsel further submitted that present is not a case
in which there is every likelihood that the petitioner will be
acquitted in course of trial.
6. Mr. Sunil Kumar Pandey, learned APP submitted
that the victim has supported the prosecution case in her
statement recorded under Section 183 BNSS, hence, the
petitioner don’t deserve to be released on pre-arrest bail.
7. Heard the parties.
8. Having heard the rival submissions made on behalf
of the parties, as well as, having perused the allegation made in
the F.I.R., for better appreciation of the case, the provisions of
Sections 7 and 8 of the POCSO Act are reproduced hereinafter:
“7. Sexual assault.—Whoever, with sexual
intent touches the vagina, penis, anus or breast of the child
or makes the child touch the vagina, penis, anus or breast
of such person or any other person, or does any other act
with sexual intent which involves physical contact without
penetration is said to commit sexual assault.
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8. Punishment for sexual assault.— Whoever,
commits sexual assault, shall be punished with
imprisonment of either description for a term which shall
not be less than three years but which may extend to five
years, and shall also be liable to fine.”
9. Section 9 of the POCSO Act defines aggravated
sexual assault, which is reproduced hereinafter:
9. Aggravated sexual assault.—
(a)Whoever, being a police officer, commits sexual assault
on a child—
(i)within the limits of the police station or premises where
he is appointed; or
(ii)in the premises of any station house whether or not
situated in the police station to which he is appointed; or
(iii)in the course of his duties or otherwise; or
(iv)where he is known as, or identified as a police officer;
or
(b)whoever, being a member of the armed forces or
security forces, commits sexual assault on a child—
(i)within the limits of the area to which the person is
deployed; or
(ii)in any areas under the command of the security or
armed forces; or
(iii)in the course of his duties or otherwise; or
(iv)where he is known or identified as a member of the
security or armed forces; or
(c)whoever being a public servant commits sexual assault
on a child; or
(d)whoever being on the management or on the staff of a
jail, or remand home or protection home or observation
home, or other place of custody or care and protection
established by or under any law for the time being in force
commits sexual assault on a child being inmate of such jail
or remand home or protection home or observation home or
other place of custody or care and protection; or
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(e)whoever being on the management or staff of a hospital,
whether Government or private, commits sexual assault on
a child in that hospital; or
(f)whoever being on the management or staff of an
educational institution or religious institution, commits
sexual assault on a child in that institution; or
(g)whoever commits gang sexual assault on a child.
Explanation.— when a child is subjected to sexual assault
by one or more persons of a group in furtherance of their
common intention, each of such persons shall be deemed to
have committed gang sexual assault within the meaning of
this clause and each of such person shall be liable for that
act in the same manner as if it were done by him alone; or
(h)whoever commits sexual assault on a child using deadly
weapons, fire, heated substance or corrosive substance; or
(i)whoever commits sexual assault causing grievous hurt or
causing bodily harm and injury or injury to the sexual
organs of the child; or
(j)whoever commits sexual assault on a child, which—
(i)physically incapacitates the child or causes the child to
become mentally ill as defined under clause (l) of section 2
of the Mental Health Act, 1987 (14 of 1987) or causes
impairment of any kind so as to render the child unable to
perform regular tasks, temporarily or permanently; or
(ii)inflicts the child with Human Immunodeficiency Virus or
any other life threatening disease or infection which may
either temporarily or permanently impair the child by
rendering him physically incapacitated, or mentally ill to
perform regular tasks; or
(k)whoever, taking advantage of a child‟s mental or
physical disability, commits sexual assault on the child; or
(l)whoever commits sexual assault on the child more than
once or repeatedly; or
(m)whoever commits sexual assault on a child below twelve
years; or
(n)whoever, being a relative of the child through blood or
adoption or marriage or guardianship or in foster care, or
having domestic relationship with a parent of the child, or
who is living in the same or shared household with the
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child, commits sexual assault on such child; or
(o)whoever, being in the ownership or management or staff,
of any institution providing services to the child, commits
sexual assault on the child in such institution; or
(p)whoever, being in a position of trust or authority of a
child, commits sexual assault on the child in an institution
or home of the child or anywhere else; or
(q)whoever commits sexual assault on a child knowing the
child is pregnant; or
(r)whoever commits sexual assault on a child and attempts
to murder the child; or
(s)whoever commits sexual assault on a child in the course
of communal or sectarian violence; or
(t)whoever commits sexual assault on a child and who has
been previously convicted of having committed any offence
under this Act or any sexual offence punishable under any
other law for the time being in force; or
(u)whoever commits sexual assault on a child and makes
the child to strip or parade naked in public, is said to
commit aggravated sexual assault.
10. From the statement of the victim recorded under
Section 183 of the BNSS, it appears that the petitioner had
caught hold of the hand of the informant’s minor daughter,
without touching any other or vital part of her body, as she
managed to free herself, which led to a scuffle. Similar act was
again repeated while the victim was returning from school.
11. Upon a careful perusal of the aforesaid provisions,
it is manifest that even a mere touching of the hand, when
accompanied by the requisite sexual intent, would be sufficient
to attract the rigours of Sections 8 and 9 of the POCSO Act.
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12. However, I find that such incidence happens in
villages without any intention to commit sexual assault. The
parties may proceed to settle their dispute amicably by way of
community mediation. In case, the parties fail to do so, then in
that case, the parties may settle their dispute by way of
mediation in accordance with Mediation Act, 2023 by
approaching the learned District Court.
13. In case the petitioner approaches the learned
District Court, then in that case, the learned District Court is
directed to take necessary steps to refer the matter before the
learned Mediator of the District Mediation Center by fixing a
date for appearance of the parties to give effect to “Mediation
for the Nation 2.0”.
14. Learned Mediator of the District Mediation Center
concerned, upon appearance of the parties, shall make his/her
best efforts to settle the dispute amicably and thereafter submit
his/her report before the concerned learned District Court, well
within a period of three months, till then, no coercive action
shall be taken against the petitioner in connection with the
aforesaid case.
15. In case, the parties resolve their dispute amicably
or arrive at a mutual settlement, the petitioner is directed to be
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released on pre-arrest bail on such terms and conditions as the
learned District Court deems it fit and proper.
16. With aforesaid direction and observation, the
present application stands disposed of.
17. Let a copy of this order be communicated to the
Member Secretary, Bihar State Legal Services Authority and the
Patna High Court Mediation Centre for the purpose of record.
(Purnendu Singh, J)
mantreshwar/-
U T
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