Supreme Court Refuses to Interfere with Anticipatory Bail Granted to Swami Avimukteshwaranand Saraswati in POCSO Case: What It Means for Accused Persons in Uttar Pradesh

The Supreme Court, while declining to interfere with the Allahabad High Court’s anticipatory bail order, made several crucial observations. The Court noted that the presumption of guilt under POCSO Section 29 is a rule of evidence that applies at the stage of trial, not at the stage of pre-arrest bail. The prosecution’s argument that the mere filing of a chargesheet under POCSO ousts the jurisdiction of the High Court to grant anticipatory bail was rejected.

The Court also reportedly questioned the delay by the complainant in approaching the police, despite having alleged knowledge of the incident for some time. This factor weakened the prosecution’s case for custodial interrogation. The key takeaway is that appellate interference with a well-reasoned anticipatory bail order is limited; the Supreme Court will not substitute its discretion unless the High Court’s order is perverse or based on irrelevant material.

This is the most pressing question for accused persons in Uttar Pradesh. The answer is a firm yes, but with conditions. Under BNSS Section 482 (which replaces CrPC Section 438), the High Court or Sessions Court can grant anticipatory bail even after the chargesheet is filed, as long as the accused has not been arrested. The filing of a chargesheet does not automatically mean the accused loses the right to seek pre-arrest protection.

However, the court will examine several factors:

• Nature and gravity of the accusation: If the POCSO allegations involve penetrative sexual assault with strong medical or forensic evidence, the court may be reluctant.
• Possibility of the accused fleeing or tampering with evidence: The court assesses whether the accused has roots in the community and will cooperate.
• Whether the accusation is motivated or delayed: A delayed FIR or one filed after a property or custody dispute can strengthen the bail plea.

In the Swami Avimukteshwaranand case, the High Court found that the allegations did not make out a strong prima facie case, and the accused had cooperated with the investigation. This principle applies equally to any accused person in Lucknow or elsewhere in UP.

One of the most misunderstood provisions in POCSO cases is Section 29, which creates a presumption that the accused has committed the offence unless the contrary is proved. Many police officers and even some lower courts believe that this presumption automatically bars anticipatory bail. The Allahabad High Court, in this very case, clarified that this presumption is a rule of evidence for trial, not a rule of arrest.

The court reasoned that at the pre-arrest stage, the accused has not yet been examined, and the prosecution has not yet led evidence. Applying the presumption at this stage would effectively deny the accused a fair opportunity to defend themselves before arrest. Therefore, POCSO Section 29 does not create a blanket bar against anticipatory bail. The accused must still satisfy the court that they are not likely to flee, tamper with evidence, or misuse liberty.

1. Step 1: File an anticipatory bail application under BNSS Section 482 before the Sessions Court or High Court.
2. Step 2: Argue that POCSO Section 29 applies only at trial, not at the pre-arrest stage.
3. Step 3: Demonstrate cooperation with investigation and absence of criminal antecedents.
4. Step 4: If rejected, approach the Allahabad High Court under BNSS Section 484 (High Court bail power).

If you or a family member is facing a POCSO accusation in Lucknow or any district of Uttar Pradesh, the procedure for seeking anticipatory bail under BNSS Section 482 is as follows:

The professional fees for a High Court anticipatory bail matter typically range from ₹25,000 to ₹1,50,000+ depending on seniority and urgency. District court matters are generally less expensive, ranging from ₹10,000 to ₹40,000.

If the Sessions Court rejects your anticipatory bail application, you have a statutory remedy. Under BNSS Section 484 (old CrPC Section 439), you can file a fresh application before the Allahabad High Court (Lucknow Bench). The High Court has concurrent jurisdiction with the Sessions Court to grant bail, and it can also set aside a rejection order.

It is important to note that the High Court will not simply review the Sessions Court’s order; it will conduct an independent assessment. The grounds for rejection at the Sessions Court level often include:

• Lack of cooperation with investigation
• Seriousness of the offence (e.g., aggravated penetrative sexual assault)
• Possibility of influencing witnesses

If the High Court also rejects the application, the last resort is the Supreme Court under Article 136 of the Constitution. However, as the Swami Avimukteshwaranand case shows, the Supreme Court is reluctant to interfere unless there is a clear error of law or perversity.

If you are facing a POCSO accusation, the first and most crucial step is to not surrender without first seeking anticipatory bail. Once you are arrested, obtaining regular bail under BNSS Section 483 (Magistrate) or BNSS Section 484 (Sessions/High Court) becomes more difficult and time-consuming. The presumption under POCSO Section 29 applies more strongly at the regular bail stage.

Second, ensure that you cooperate fully with the investigation. Provide your mobile phone, documents, and any other evidence voluntarily. Non-cooperation is often cited as a ground for rejecting bail. Third, do not delay in filing the anticipatory bail application. The moment you learn of the FIR, consult a lawyer and file the application. Delay can be interpreted as an attempt to evade the process.

Finally, be aware of the following key points:

• Timeline: A POCSO case typically takes 1-2 years at trial. Anticipatory bail, once granted, usually remains in force throughout the trial unless cancelled under BNSS Section 482(2) on grounds of misuse.
• Conditions: Regular reporting to the police may be imposed as a condition. Ensure strict compliance.
• Legal Fees: As mentioned, High Court matters cost ₹25,000–₹1,50,000+; district court matters ₹10,000–₹40,000.

Advocate Onkar Pandey is a practicing lawyer at the Allahabad High Court Lucknow Bench with over 25 years of experience in criminal law, bail matters, FIR quashing, and family law. Enrolled with the Bar Council of Uttar Pradesh (No. UP/4825/1999), he provides expert legal guidance to clients across Uttar Pradesh from his chamber at A-406, High Court, Lucknow. For a consultation on anticipatory bail in POCSO cases, contact Advocate Onkar Pandey at +91 98392 71553.