Author: Advocate Bhuvnesh Kumar Goyal

Bail in POCSO Act Cases

Bail in Pocso Bail under the Protection of Children from Sexual Offences (POCSO) Act, 2012 is not routine. Courts apply a stricter standard because the Act deals with offences against children. However, the law does not impose an absolute bar on bail.As a senior advocate before the Supreme Court, I can say that the strength of evidence, delay in FIR, medical report, conduct of the accused, and the child’s statement—all play a crucial role in determining bail. This article explains how courts examine bail in POCSO cases, the legal principles, the documents required, and key Supreme Court / High Court cases that guide the process. 1. Understanding POCSO and Why Bail is Sensitive The POCSO Act was enacted to protect children (below 18 years) from: Sexual assault Sexual harassment Pornography Aggravated forms of assault Because these offences concern a minor, courts approach bail applications with: Higher scrutiny Victim-centric approach Requirement of prima facie satisfaction But the Supreme Court has repeatedly held that: “Bail cannot be denied merely because the offence is serious. Every accused has a right to liberty unless the prosecution shows real risk of misuse.” Thus, the law balances child protection with constitutional rights under Article 21. 2. Types of Bail Applicable in POCSO Cases (a) Regular Bail – Section 439 CrPC (now BNSS) Filed after arrest. Court checks: Whether accused will influence the child witness Evidence strength Medical report consistency (b) Anticipatory Bail – Section 438 CrPC (now BNSS) There is no statutory bar on anticipatory bail in POCSO, as confirmed by various High Courts.Court usually imposes strict conditions such as: Not contacting the child Not entering the locality Cooperating with investigation (c) Bail for Juveniles Accused of POCSO Offences If the accused is under 18, the Juvenile Justice Act governs the bail test: Bail is the rule Denial allowed only if release may lead to danger or crime repetition 3. Legal Test for Bail in POCSO: What Courts Examine     Courts do not treat every POCSO case the same. They look for prima facie evidence, not full proof. (i) Medical Evidence Injuries? Hymen status? Signs of assault? Consistency with child’s version? If medical report does not support the story, courts consider it a strong ground for bail. (ii) Statement under Section 164 CrPC / BNSS The child’s statement is crucial.Contradictions, improvements, or tutoring can influence the bail outcome. (iii) Delay in FIR Unexplained delay can weaken the prosecution case. Immediate disclosures strengthen it. (iv) Relationship Between Accused & Child Courts look at: Love relationship cases Family disputes Neighbour enmity False implication possibilities (v) Custody Period & Trial Delay POCSO trials often take years.If accused has already undergone a long custody period, courts grant bail on Article 21 grounds. (vi) Risk of Influencing Witnesses This is the most important concern for judges. 4. Situations Where Courts Commonly Grant Bail in POCSO 1. Consensual Relationship Between Teenagers Courts have repeatedly said that POCSO is not meant to criminalise romantic relationships, especially: When girl is 16–18 Relationship is voluntary No exploitation 2. Weak Medical Evidence If medical report does not support penetration or assault. 3. Contradictory Child Statements If statements under 161 and 164 differ significantly. 4. Delay in FIR Without Proper Explanation 5. Accused Has Deep Local Roots, No Criminal History 6. Long Pre-Trial Detention If trial is unlikely to finish soon. 5. Situations Where Courts Deny Bail in POCSO Clear medical evidence of assault Threats to victim or family Accused living in same locality Child witness classified as vulnerable Heinous offence or aggravated assault Prior criminal history Courts adopt a victim protection approach in such cases. 6. Procedure to Apply for Bail in POCSO A. Anticipatory Bail Procedure File 438 petition before Sessions Court Serve notice to Public Prosecutor Court evaluates FIR, medical report, and allegations Court may grant or deny interim protection Final hearing Bail order with strict conditions B. Regular Bail Procedure Apply under Section 439 before POCSO Special Court Provide case diary & evidence gaps Court considers gravity and evidence Bail granted with conditions like: No contact with child No visiting the child’s house/school No tampering with evidence 7. Important Supreme Court & High Court Judgments on Bail in POCSO 1. Satish Ragde v. State of Maharashtra (2021) In this case, the Supreme Court examined whether “skin-to-skin contact” was necessary to constitute sexual assault under the POCSO Act. A controversial High Court judgment had held that mere touching without direct skin contact would not amount to sexual assault. The Supreme Court reversed this, holding that such a narrow interpretation defeats the purpose of POCSO. While discussing bail principles, the Court reiterated that although POCSO offences are serious, the approach to bail must still follow the settled constitutional principle—bail cannot be denied mechanically merely because the offence is grave; courts must evaluate evidence, intent, and circumstances objectively. 2. X v. State of Madhya Pradesh (2022 – SC) This judgment dealt with the increasing number of POCSO cases arising from consensual romantic relationships between minors. The Supreme Court acknowledged that rigid application of POCSO in cases of adolescent love stories can unjustly criminalise young boys, especially where the girl is close to the age of maturity and the relationship appears voluntary. The Court held that bail should be approached with sensitivity, recognising that not every POCSO allegation represents exploitation. When evaluating bail, courts must consider the nature of the relationship, conduct of the parties, age proximity, medical evidence, and absence of coercion. This ruling significantly guides lower courts in granting bail in “romantic POCSO” cases. 3. Vishnu v. State of Karnataka (2023) In this case, the High Court focused heavily on medical evidence at the bail stage. Although the FIR alleged penetrative sexual assault, the medical report did not support the allegations—there were no injuries, no signs of assault, and significant inconsistencies between the child’s statement and medical findings. The Court held that medical evidence is a crucial indicator while deciding bail because it offers objective evaluation when oral statements differ. The Court granted

Rajasthan High Court Directs Consideration of Representation for Correction of Subject in RPSC Assistant Professor Application

Rajasthan High Court Directs Consideration of Representation for Correction of Subject in RPSC Assistant Professor Application Case Title: Archana Chaudhary v. State of Rajasthan & Ors., S.B. Civil Writ Petition No. 18962/2025Date of Judgment: 06.12.2025 The Rajasthan High Court, Jaipur Bench, through Hon’ble Mr. Justice Ashok Kumar Jain, decided S.B. Civil Writ Petition No. 18962/2025 filed by Ms. Archana Chaudhary. The petitioner, aged about 33 years and resident of Jaipur, had approached the Court seeking relief in relation to her online application for the post of Assistant Professor (College Education) – 2025. Her grievance was that in Application No. 202549023583, her subject had been recorded as “Hindi” instead of “Geography,” which according to her did not match her academic qualification and earlier application record.  In the writ petition, the petitioner prayed for issuance of an appropriate writ, order or direction to the Rajasthan Public Service Commission (RPSC) to correct the subject in her application from “Hindi” to “Geography.” She further sought a direction that her candidature be considered for the post of Assistant Professor in the subject of Geography and that she be permitted to participate in all subsequent stages of the recruitment process accordingly. Along with this, she requested that the Court quash and set aside the verbal or oral refusal allegedly made by the Commission in regard to consideration of her representation, and that the respondents be directed to pass a reasoned and speaking order on her representation dated 01.12.2025.  During the course of arguments, learned counsel for the petitioner referred to a Division Bench judgment of the Rajasthan High Court in Union of India and Ors. v. Harendra Gawaria and Ors., reported as 2022 Supreme (Raj.) 643. On the strength of this decision, it was submitted that the controversy raised by the petitioner already stood covered and resolved. Relying on this precedent, it was urged that the petitioner may at least be granted permission to submit an appropriate representation before the competent authority so that her grievance regarding correction of the subject and consideration of candidature could be examined in accordance with law.  The Court considered the grievance raised by the petitioner in the light of the submissions made. Instead of granting the substantive relief of direct correction of the subject in the application form or issuing a positive mandamus to treat the petitioner as a Geography candidate, the Court chose to dispose of the writ petition by providing a structured remedy through representation. The Court granted liberty to the petitioner to submit a detailed representation to the respondents–authority within a period of three days, raising all grounds available to her with respect to the error in the subject and its impact on her candidature.  The Court also issued clear directions to the respondents–authority regarding how such representation was to be dealt with. It directed that the representation be considered and decided after making an enquiry about the grievances raised by the petitioner. This exercise was to be undertaken in the light of the Division Bench judgment in Union of India and Ors. v. Harendra Gawaria and Ors. (supra). The Court further directed that, in case the respondents chose to deviate from the position emerging from the said judgment or otherwise did not accept the petitioner’s claim, they must pass a reasoned and speaking order. This decision was to be taken within a period of seven days from the date of receipt of the representation and in any case before 15th December 2025.  The judgment also places an obligation on the respondents to communicate their decision to the petitioner. It is specifically recorded that the decision must be conveyed either by way of speed post or through e-mail, if the petitioner has provided an e-mail address in her representation. This direction ensures that the petitioner is informed of the outcome in a timely and verifiable manner, enabling her to take further steps, if necessary, without delay.  Finally, the Court preserved the petitioner’s right to seek further judicial remedy. It observed that if, after the decision on her representation, the petitioner still felt aggrieved, she would be at liberty to approach the Court again by filing a fresh petition. With these directions and observations, the writ petition, along with any pending applications, was disposed of.  Through this judgment, the Rajasthan High Court confined itself to providing a procedural route and a time-bound mechanism for redressal of the petitioner’s grievance regarding correction of the subject in her RPSC Assistant Professor (College Education) – 2025 application, without entering into or adjudicating upon the merits of the claim itself. Read complete order here By Advocate Bhuvesh Kumar Goyal

Rajasthan High Court (Jaipur Bench) Grants Bail under Section 483 BNSS in Alleged Online Siphoning Case

Rajasthan High Court (Jaipur Bench) Grants Bail under Section 483 BNSS in Alleged Online Siphoning Case Case Title: Tahir S/o Late Shri Illiyas v. State of RajasthanDate of Judgment: 06.12.2025 The Rajasthan High Court, Jaipur Bench, in S.B. Criminal Miscellaneous Bail Application No. 14032/2025, decided on 06 December 2025 by Hon’ble Mr. Justice Sameer Jain, considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The accused–applicant, Tahir S/o Late Shri Illiyas, aged about 40 years and resident of Ward No. 4, Meo Mohalla, Barodameo, District Alwar, was at the time of hearing confined in Central Jail, Alwar. The case arose out of FIR No. 248/2025 registered at Police Station Baroda Meo, District Alwar.  As per the order, the FIR was registered for offences under Sections 316(2), 318(4), 112(2), 61(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS) and Section 66(D) of the Information Technology Act, 2008. The prosecution case, as recorded in the bail order, related to an allegation of siphoning an amount of ₹57,000/- by using a bank account on the basis of commission. The applicant had been arrested in connection with this FIR and remained in judicial custody since 30.09.2025. On behalf of the accused–applicant, learned counsel submitted before the Court that the applicant is the sole bread earner of his family. It was further pointed out that he had been in custody since 30 September 2025 and that the investigation in the matter had culminated in filing of the charge-sheet. Reliance was placed on these factual circumstances to urge that continued incarceration of the applicant was not warranted and that he may be enlarged on bail in the pending criminal proceedings arising out of FIR No. 248/2025. The learned Public Prosecutor, appearing for the State of Rajasthan, opposed the bail application. The order records that the State resisted the plea for bail and prayed for rejection of the application, without detailing any additional factual assertions beyond the offences mentioned in the FIR and the nature of allegations already noted. After hearing both sides, the Court considered “the overall facts” of the case. While doing so, the Court specifically took note of three key circumstances: first, that the applicant is the sole bread earner of his family; second, that he has remained in custody since 30.09.2025; and third, that the charge-sheet has already been filed in the matter. Having regard to these points and the overall facts and circumstances, the Court recorded that, without commenting upon the merits or demerits of the case, it was inclined to enlarge the accused–applicant on bail. Consequently, the bail application filed under Section 483 BNSS was allowed. The High Court ordered that the accused–applicant Tahir S/o Late Shri Illiyas be released on bail, subject to his furnishing a personal bond in the sum of ₹50,000/- along with two sureties of ₹25,000/- each, to the satisfaction of the learned trial Judge. The applicant was directed to appear before the concerned court on all dates of hearing as and when called upon to do so. With these conditions, the Jaipur Bench of the Rajasthan High Court granted bail to the applicant in connection with FIR No. 248/2025 registered at Police Station Baroda Meo, District Alwar. Read Complete order here By Advocate Bhuvnesh Kumar Goyal

Grant of Bail Under Section 483 BNSS in Money Doubling and Online Gambling Case: Rajasthan High Court Jaipur Bench’s Approach

Grant of Bail Under Section 483 BNSS in Money Doubling and Online Gambling Case: Rajasthan High Court Jaipur Bench’s Approach Case Title: Umesh S/o Murari Lal v. State of RajasthanDate of Judgment: 06.12.2025 The Jaipur Bench of the Rajasthan High Court, per Hon’ble Mr. Justice Sameer Jain, decided S.B. Criminal Misc. Bail Application No. 14043/2025 filed by Umesh S/o Murari Lal, a 23-year-old accused who was in judicial custody in District Jail, Sawai Madhopur. The application was moved under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which confers special powers on the High Court and Court of Session in relation to bail. The order is a short but clear illustration of how the Court is applying the new BNSS framework to regular bail, particularly in economic offences involving online activity and gambling elements.  The FIR in question, being FIR No. 315/2025 registered at Police Station Kotwali, Sawai Madhopur, invokes several provisions of the Bharatiya Nyaya Sanhita, 2023, namely Sections 318(4), 319(2), 336(3), 338 and 112(2). Alongside these, the police have added Section 66D of the Information Technology Act, 2008 and Section 13 of the Rajasthan Public Gambling Ordinance, 1949. Collectively, these provisions point towards allegations of cheating through electronic means and participation in or promotion of gambling activities, with the specific allegation here relating to a “doubling of money” scheme where the amount involved is stated to be Rs. 83,000/-. The FIR has been lodged by the police authorities themselves, which suggests that the case emerged from investigative, cyber or surveillance inputs rather than a private complainant approaching the police directly.  On behalf of the accused-applicant, learned counsel emphasised three core aspects. First, the applicant’s young age—only 23 years—was highlighted as a relevant circumstance calling for a reform-oriented approach rather than prolonged incarceration at the pre-trial stage. Second, the Court was informed that the applicant had already been in custody since 14.10.2025, meaning that by the time the bail application came up for consideration, he had spent a substantial period in jail without the trial having commenced or concluded. Third, the defence pointed out that, on the prosecution’s own showing, the monetary amount involved was Rs. 83,000/-, which, though not trivial for an individual victim, is still within a limited range in the spectrum of economic offences. These submissions, taken together, were aimed at persuading the Court that continued detention would be excessive and that the purposes of investigation could be met even if the applicant were released on conditions.  The State, represented by the learned Public Prosecutors, opposed the bail application and urged the Court not to exercise its discretion in favour of the applicant. Although the order records this opposition in brief, without setting out detailed arguments, it can reasonably be inferred that the prosecution stressed the nature of the offences—particularly cheating using electronic means under the IT Act and gambling-related activity under the Rajasthan Public Gambling Ordinance—as well as the possibility of the accused engaging in similar activities if released. In such cases, State opposition normally rests on concerns of deterrence, the risk of repetition of the offence, and the need to send a message that online financial frauds and gambling rackets will be dealt with firmly. After hearing both sides, the Court proceeded to analyse the case through the lens of Section 483 BNSS. This provision, titled “Special powers of High Court or Court of Session regarding bail”, enables the High Court to grant bail in appropriate cases, subject to notice to the Public Prosecutor and other statutory safeguards. In the present matter, instead of going into a detailed examination of the evidence, the Court consciously confined itself to broad factors such as the age of the accused, the duration of custody, the amount involved, and the overall circumstances. Justice Sameer Jain clearly recorded that the applicant is a young person aged 23 years, has been in custody since 14.10.2025, and that the amount alleged in the money-doubling scheme is Rs. 83,000/-. Importantly, the Court made it explicit that it was not commenting on the merits or demerits of the prosecution case at this stage.  This cautious approach is consistent with the settled principle that bail orders should not prejudge the trial or make detailed factual findings that might affect the final adjudication. Instead, the High Court focused on whether, at the present stage of proceedings, further incarceration of the applicant was necessary. Having considered the material on record, the Court came to the conclusion that the balance leaned in favour of granting bail. The reasoning reflects a broader trend in modern criminal jurisprudence, including under the BNSS, that pre-trial detention is an exception and personal liberty must be protected unless there are strong reasons to deny bail, such as risk of absconding, likelihood of tampering with evidence, or a clear threat to public order. On the basis of this assessment, the High Court allowed the application under Section 483 BNSS and directed that the accused-applicant be enlarged on bail. The conditions imposed by the Court are standard but significant: Umesh is required to furnish a personal bond of Rs. 50,000/- along with two sureties of Rs. 25,000/- each, to the satisfaction of the trial court. He is obligated to appear before the concerned court on all dates of hearing as and when called upon. These conditions serve a dual function: they secure the presence of the accused during trial and also act as a reminder that bail comes with responsibilities, not as an unfettered freedom.  From a legal practitioner’s perspective, the order offers several practical takeaways. First, it confirms that under the BNSS regime, Section 483 remains a robust tool before the High Court for seeking regular bail, especially where factors such as youth, limited amount involved, and significant pre-trial custody are present. Second, even in cases involving cyber elements and gambling, the Court will not automatically treat the matter as requiring continued detention if the alleged amount is modest and the investigation does not demand the physical custody of the

Rajasthan High Court Jaipur Bench Follows Ravi Agarwal Precedent in Cluster of Income Tax Writ Petitions

Rajasthan High Court Jaipur Bench Follows Ravi Agarwal Precedent in Cluster of Income Tax Writ Petitions Case Title: Ram Babu Gupta v. Deputy Commissioner of Income Tax, Central Circle-1, Jaipur & Connected Matters Date of Judgment / Order: 06 December 2025 This order of the Rajasthan High Court, Jaipur Bench, deals with a large group of writ petitions filed by three assessees – Ram Babu Gupta, Ashwani Gupta and Anil Singhvi – all challenging actions of the Income Tax Department, mainly the Central Circles at Jaipur. The petitions were heard together because they raised a common legal issue arising out of income tax proceedings initiated by the Department. Looking at the array of parties, it is clear that the challenge was not to an isolated order, but to a particular pattern of action by the investigation and assessment machinery of the Department, involving the DGIT (Investigation), Principal Commissioner and various Central Circles.  The Division Bench notes at the very outset that “the issue involved in these petitions is common” and therefore directs that all matters be tagged. This is a standard but important procedural step. It ensures consistency of outcome, avoids conflicting orders in similar fact situations, and saves judicial time. For taxpayers and practitioners, this tagging also signals that the petitions were part of a wider controversy in income-tax administration at Jaipur, not just a one-off grievance.  The heart of the order lies in the short but significant observation that the “controversy involved in the present cases is no more res integra and stands resolved” by an earlier order of a co-ordinate Bench dated 16.09.2025 in Shri Ravi Agarwal v. Income Tax Officer & Ors., D.B. CWP No. 11981/2025. Both sides – counsel for the petitioners and counsel for the Department – agreed that the legal issue already stands concluded by that earlier judgment and jointly requested disposal of the present petitions “in terms thereof”.  The expression res integra simply means that an issue is untouched or undecided. When the Bench records that the controversy is no longer res integra, it is formally accepting that the point of law has already been decided by the Court in an earlier case. This is not a casual remark: it reflects the doctrine of judicial discipline within the High Court. A Division Bench ordinarily follows the view of a co-ordinate Division Bench on the same question of law. If it wants to differ, the proper course is to refer the matter to a larger Bench. By choosing to follow Ravi Agarwal without hesitation, the Bench reaffirms that internal consistency of precedent is a key part of the rule of law. The order is also significant for the way it records the stand of counsel. Learned counsel for both sides fairly accepted that Ravi Agarwal governs the field and jointly requested that these petitions be disposed of on that basis. This is how well-conducted tax litigation should proceed. Once a legal issue has been tested and decided by the Court, repeating the same debate in every similar matter only adds to pendency and uncertainty. By inviting disposal in terms of an existing judgment, the parties allow quick relief to the assessees while ensuring that the Department also gets a clear and uniform framework to work with. Although the present order does not restate the detailed reasoning of Ravi Agarwal, it effectively extends the benefit of that precedent to all the tagged petitioners. In practical terms, this means that whatever legal protection, directions or restrictions were laid down in Ravi Agarwal now apply mutatis mutandis to Mr. Ram Babu Gupta, Mr. Ashwani Gupta and Mr. Anil Singhvi in respect of their contested income-tax proceedings. The Court uses a familiar formula – the petitions are “disposed of in terms thereof” – to import the earlier ratio without rewriting it. This technique is often used when the Court is faced with repetitive matters governed by the same principle. For assessees and tax practitioners, an order of this nature is still quite valuable despite its brevity. First, it confirms that the High Court views the petitioners’ grievances as part of an already adjudicated legal issue, which strengthens their position against any inconsistent departmental approach in future. If any lower authority tries to distinguish their case artificially, the assessees can rely on this order to say that the High Court has itself treated the controversy as identical to Ravi Agarwal. Secondly, by clubbing a series of petitions involving different assessment years, different Central Circles and even different types of departmental orders, the Court is implicitly accepting that the underlying legal defect or concern is structural rather than individual. That could relate, for example, to the manner in which certain proceedings were initiated, authorised, or transferred within the central circles. Even though the precise point is set out in Ravi Agarwal and not repeated here, this clustering makes it easier for similarly placed taxpayers to seek relief by demonstrating parity with either the lead case or these follow-up matters. Thirdly, the order brings finality to all pending applications within these petitions. By clarifying that “pending application(s), if any, also stands disposed of”, the Bench leaves no loose ends. This is crucial in tax matters, where interim applications often deal with stay of demand, protection from coercive steps, or maintenance of status quo in assessment. Once the main petitions are disposed of on the strength of a precedent, those interim protections naturally merge into the final order structure laid down in the earlier judgment. From a doctrinal standpoint, the order is a neat illustration of how High Courts manage precedent in specialised areas like tax. Instead of treating each writ petition as a standalone battle, the Court identifies a “test case” – here Ravi Agarwal – and then uses it as the governing decision for subsequent matters. This practice reduces the risk of contradictory views emerging from different Benches and gives the Department clear guidance on how to align its processes with constitutional and statutory requirements. In summary, the

Arrest in India: Law, Procedure, Safeguards and Remedies

Arrest in India: A Complete, Practical Guide for People Who Fear Arrest – or Want the Law to Act If you are reading this, you are probably in one of two situations: You are afraid that you or a loved one may be arrested soon, or You are a victim and want to know how to get the accused arrested. In both situations, the word “arrest” creates fear, confusion and a feeling of helplessness. As a practising lawyer, I can tell you: half of this fear comes from not knowing the law. This article is written in simple English, from the point of view of a common person, but with the seriousness and depth that a senior advocate would bring. It focuses on current law after the new criminal codes (Bharatiya Nyaya Sanhita – BNS, Bharatiya Nagarik Suraksha Sanhita – BNSS) and also mentions the older CrPC section numbers that people still search for. 1. Which law applies today? BNSS vs CrPC From 1 July 2024, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has replaced the Code of Criminal Procedure, 1973 (CrPC) for new cases. It lays down the procedure for arrest, investigation, trial and bail. However: Older cases may still be governed by CrPC, The principles on arrest and rights remain broadly similar. Throughout this article, I will write like this: Section 35 BNSS (earlier Section 41 & 41A CrPC) – arrest without warrant so that you can understand both the new and the old references that appear in FIRs, orders, and on the internet. 2. What exactly is “arrest”? Arrest means taking a person into custody under legal authority, in such a manner that the person’s liberty is restrained and he/she is not free to leave. It is different from: Calling to the police station for enquiry – where you are technically free to leave, though in practice this is often misused. Simple questioning at home or on the road – this alone is not arrest. Detention – sometimes police say “we have only detained you, not arrested you”. If you are not free to go, the law and courts may still treat it as arrest or illegal detention. 3. Who can arrest in India? Under BNSS Chapter V – Arrest of Persons, the following can arrest: Police officers This is the most common. They can arrest with or without warrant depending on the case. Private persons A common citizen can arrest someone who commits a cognizable and non-bailable offence in his presence, like a serious violent crime, and must hand him over to the police immediately (Section 40 BNSS, earlier Section 43 CrPC). Magistrates A Magistrate can himself order and even personally arrest a person committing an offence in his presence (Section 41 BNSS, earlier Section 44 CrPC). On refusal to give name and address If a person is reasonably suspected of an offence and refuses to give his name and residence, police may arrest him to find these details (Section 39 BNSS, earlier Section 42 CrPC). Preventive arrest by police Under Section 170 BNSS (earlier Section 151 CrPC), police can make preventive arrest to stop the commission of a cognizable offence if it cannot be otherwise prevented. 4. When can police arrest without warrant? – Section 35 BNSS / Section 41 CrPC This is the heart of modern arrest law. 4.1 General power Under Section 35 BNSS, any police officer may arrest without a warrant in certain situations – for example, where a person: Commits an offence in the presence of the police officer. Is reasonably suspected of having committed a cognizable offence (serious offences like cheating above certain amounts, hurt, theft, rape, etc.). Is a proclaimed offender or is found with stolen property, etc. 4.2 The “necessity test” – police must justify arrest The Supreme Court has repeatedly said: “Having the power to arrest is one thing, the justification to arrest is another.” Section 35 BNSS (like old Section 41 CrPC) now builds this into the law. Police must consider whether arrest is necessary for reasons such as: To prevent further offences. To stop the accused from tampering with evidence. To prevent the accused from threatening or influencing witnesses. To ensure the accused appears in court. If these reasons do not exist, police are expected not to arrest and instead use notice of appearance (see next part). 4.3 Special protection for elderly and infirm Section 35(7) BNSS provides that no arrest shall be made for certain minor offences (punishable with less than 3 years) where the person is infirm or above 60 years, without prior permission of a senior police officer (not below DSP rank). This is important if you are worried about arrest of elderly parents or sick persons in a family dispute. 5. Notice instead of arrest – the Arnesh Kumar principle Under old CrPC, Section 41A allowed police to issue a notice to appear instead of arrest. Under BNSS, this concept is merged into Section 35 itself.  The Supreme Court, in Arnesh Kumar v. State of Bihar, strongly criticised routine arrests, especially in offences like Section 498A IPC, and directed that: Police should first issue a notice asking the accused to join the investigation. Arrest should be made only if the accused does not cooperate or if the necessity test is satisfied. Many High Courts continue to reinforce these directions even under BNSS. If you receive such a notice: Do not ignore it. Immediately contact a lawyer. Cooperate, but do not give self-incriminating detailed statements without legal advice. 6. Arrest with warrant – when does the court issue a warrant? Arrest with warrant is regulated under BNSS “Processes to Compel Appearance” (corresponding to Chapter VI of CrPC). A Magistrate may issue a warrant of arrest when: A complaint or police report (FIR/final report) is before the court. The court takes cognizance of an offence and finds that the presence of the accused is needed. The offence is serious or the accused has not responded to summons/notices. Warrants may be: Bailable –

Anticipatory bail: law, procedure & Supreme Court guidelines

Anticipatory bail: law, procedure & Supreme Court guidelines Anticipatory bail is one of the most powerful protections available in Indian criminal procedure. Properly invoked, it can preserve an individual’s liberty in the face of motivated FIRs, business disputes given a criminal colour, or investigations where arrest is used more as pressure than as a genuine investigative necessity. At the same time, courts are acutely conscious that pre-arrest bail cannot be allowed to become a shield for hardened offenders, sexual offences against children, or serious economic crime. The modern law on anticipatory bail is therefore a careful balance between personal liberty under Article 21 and the interests of a fair investigation. This article gives a complete practitioner-level overview of anticipatory bail in India as of 2025, written in simple language but with the depth and nuance expected from a senior counsel. 1. What is anticipatory bail? “Anticipatory bail” simply means bail in anticipation of arrest – an order of the Sessions Court or High Court that if the applicant is arrested in a specified case, they shall be released on bail without being taken into custody. The expression “anticipatory bail” was coined by the Law Commission in its 41st Report and adopted by Parliament when inserting Section 438 in the Code of Criminal Procedure, 1973 (CrPC). Although the statute itself does not use the phrase, it has become standard legal terminology. Today, for new cases under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the equivalent provision is Section 482 BNSS – “Direction for grant of bail to person apprehending arrest”. In essence: The applicant has not yet been arrested, but reasonably fears arrest in a non-bailable offence. The court, if satisfied, directs that in the event of such arrest, the person shall be released on bail subject to conditions. 2. Statutory framework: CrPC vs BNSS (a) Section 438 CrPC – the original provision Section 438 CrPC (inserted in 1973) empowered the Court of Session or High Court to grant anticipatory bail where a person had reason to believe they might be arrested on accusation of a non-bailable offence. Key points under Section 438: Forum – Sessions Court or High Court (concurrent jurisdiction). Stage – any time after there is a concrete apprehension of arrest; FIR need not always be registered, but vague or speculative fear is not enough. Conditions – court could impose conditions relating to cooperation with investigation, non-tampering with evidence, travel restrictions, etc. Special amendment – the 2005 Amendment Act inserted a detailed version of Section 438, but that amended text was never brought into force nationally; Law Commission’s 203rd Report reviewed this in detail. Even after BNSS has come into force, Section 438 CrPC remains relevant for: offences investigated and tried under the old CrPC/IPC framework during the transition; and older case-law, which continues to guide interpretation, since the new provision is largely pari materia (similar in substance). (b) Section 482 BNSS – the new anticipatory bail provision With effect from 1 July 2024, BNSS has replaced CrPC for new cases. Anticipatory bail is now governed by Section 482 BNSS. Important features of Section 482 BNSS: Same basic structure as Section 438 CrPC Any person who “has reason to believe” that they may be arrested for a non-bailable offence may apply to the Sessions Court or High Court. The court may direct that in the event of arrest, the person shall be released on bail. Illustrative conditions (Section 482(2))The court may impose conditions such as: making oneself available for interrogation; not inducing or threatening witnesses; not leaving India without permission; and any conditions similar to regular bail conditions under Section 480(3) BNSS. Sub-section (3): binding effect on police and MagistrateIf a person with anticipatory bail is arrested without warrant and is prepared to furnish bail, the police officer must release him on bail, and if a Magistrate issues a warrant, it must be a bailable warrant in conformity with the anticipatory bail directions. Sub-section (4): statutory bar for certain sexual offencesSection 482(4) expressly excludes anticipatory bail where the arrest is for offences under: Section 65 BNS – aggravated rape on girl under 16 / under 12; and Section 70(2) BNS – gang rape on a woman under 18. Wider judicial discretionCommentators and several High Courts have noted that BNSS removes the earlier “guiding factors” that were written into the text of Section 438 CrPC (such as gravity of accusation, antecedents, likelihood of absconding), leaving these to judicial discretion, and thereby widening the protective scope of anticipatory bail. Effect on State amendmentsSome States had previously restricted anticipatory bail by amendments (e.g. Uttar Pradesh, Uttarakhand). Recent High Court decisions, particularly the Allahabad High Court and references by the Uttarakhand High Court, have held that Section 482 BNSS, being a re-enacted central provision, can override inconsistent state amendments in many contexts. 3. Object and philosophy of anticipatory bail The Law Commission and the Supreme Court have consistently emphasised that the object of anticipatory bail is to safeguard personal liberty and protect individuals against arbitrary or motivated arrest. Anticipatory bail: prevents arrest from being used as a tool of harassment or humiliation; recognises that “arrest itself is a form of punishment”, especially for professionals, public figures or businesspersons; ensures that genuine disputes (for example, civil or commercial matters) are not given a criminal colour purely to coerce payment or settlement; and still allows the court to deny protection where the case genuinely requires custodial interrogation or where the applicant is likely to obstruct justice. 4. Landmark Supreme Court judgments on anticipatory bail (a) Gurbaksh Singh Sibbia v. State of Punjab (1980) – Constitution Bench This is the foundational judgment on anticipatory bail. The Constitution Bench rejected any narrow or restrictive interpretation of Section 438 and laid down broad principles: No rigid conditions or formulae – Parliament deliberately left the provision flexible; courts must decide case-by-case. Discretion is to be exercised judiciously, not mechanically – the court must look at the nature of accusation, antecedents, possibility of absconding, and whether the accusation

Rajasthan High Court Clarifies Non-Enforceability of State Litigation Policy, 2018 and Scope of Quo Warranto Against Additional Advocate General

Rajasthan High Court Clarifies Non-Enforceability of State Litigation Policy, 2018 and Scope of Quo Warranto Against Additional Advocate General Date of Judgment: 02.12.2025 The Division Bench of the Rajasthan High Court, Jaipur Bench, comprising Hon’ble the Acting Chief Justice Mr. Sanjeev Prakash Sharma and Hon’ble Mr. Justice Baljinder Singh Sandhu, in D.B. Civil Special Appeal No. 151/2025, has dismissed a challenge to the appointment of an Additional Advocate General (AAG) for the State of Rajasthan before the Supreme Court. The judgment, delivered on 2 December 2025, settles two important questions: whether the Rajasthan State Litigation Policy, 2018 is legally enforceable, and whether the office of Additional Advocate General is a “public office” amenable to a writ of quo warranto. The appeal arose from the dismissal of a writ petition in the nature of quo warranto filed by the appellant, a practising advocate, who questioned the eligibility of respondent No. 2, Shri Padmesh Mishra, to hold the post of Additional Advocate General for cases in the Supreme Court. The main grievance was that the appointee allegedly did not fulfil the minimum 10 years’ practice requirement under the State Litigation Policy, 2018, and that the insertion of Clause 14.8 in the Policy was arbitrary and colourable. In affirming the learned Single Judge’s order, the Division Bench has delivered a reasoned and doctrinally important judgment which will guide future litigation on appointments of law officers and interpretation of litigation policies in Rajasthan. Factual Background and Issues Before the Court The appellant, appearing in person, had initially filed a writ petition seeking a writ of quo warranto against respondent No. 2, challenging his appointment as Additional Advocate General vide order dated 23.08.2024. The challenge was based on two broad grounds. First, that respondent No. 2 did not have the minimum experience of 10 years’ practice as an advocate required for the post of Additional Advocate General under Clause 14.4 of the Rajasthan State Litigation Policy, 2018. Second, that Clause 14.8 – inserted by notification dated 23.08.2024 – conferred unguided powers on the State to appoint “any counsel” to “any post” after considering his expertise, and was therefore arbitrary and colourable. The learned Single Judge rejected the writ petition, holding that the post of Additional Advocate General is not a “public office” for the purpose of quo warranto and that the Litigation Policy is not a statutory instrument. The Single Judge also relied on earlier Division Bench judgment in Ishwar Prasad v. State of Rajasthan and on the Supreme Court decision in Dr. Abhinav Sharma v. Sunil Samdaria. In appeal, the appellant reiterated that the State Litigation Policy, 2018 had acquired enforceability, particularly because it was brought in pursuant to observations of the Supreme Court in State of Rajasthan v. Man Sukh Das and because the amendment inserting Clause 14.8 had been notified in the Gazette. The State, on the other hand, argued that the Policy was merely a set of administrative guidelines, without statutory force, and could not be used to ground a writ of quo warranto or invalidate an appointment. Nature and Scope of Writ of Quo Warranto The Bench began its legal analysis by revisiting Article 226 of the Constitution and the settled principles governing writs of quo warranto. Relying on B.R. Kapur v. State of T.N., Bharati Reddy v. State of Karnataka and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, the Court reiterated that a writ of quo warranto lies to challenge the authority of a person holding a public office of a substantive character. Such a writ can be issued only when indisputable facts show that either the incumbent did not satisfy the statutory qualifications at the time of appointment, or has incurred a statutory disqualification. The Court emphasised that the scope of judicial review in a quo warranto proceeding is limited, and cannot be expanded to question matters of subjective satisfaction or executive discretion that are not governed by statutory norms. In particular, it held that a writ of quo warranto cannot be grounded on alleged violation of executive guidelines, circulars or policies that lack statutory character. Is the Additional Advocate General a “Public Office”? A substantial portion of the judgment is devoted to the nature of the post of Additional Advocate General and other government counsel. The Bench undertook a detailed survey of Supreme Court precedents, starting from Kumari Shrilekha Vidyarthi v. State of U.P., which recognised a public element in the office of District Government Counsel, and then considering how later decisions refined this position. The Court noted that in State of U.P. v. Johri Mal and State of U.P. v. Ajay Kumar Sharma, the Supreme Court underlined the distinction between Assistant Public Prosecutors, who are civil servants holding posts under the State, and Public Prosecutors or Government Counsel, who remain practising advocates engaged on tenure basis. Their appointments may have a public element and are subject to fair procedure, but they are not “public offices” in the strict sense, nor are they governed by service rules framed under Article 309. Building on these authorities, the Division Bench held that the Advocate General, appointed under Article 165 of the Constitution, does hold a public office, with administrative and financial powers, and can be said to be a constitutional functionary. However, Additional Advocate Generals and other Government Counsel do not fall in the same category. They are essentially law officers engaged to assist the Advocate General, with no fixed tenure, no statutory cadre and no independent administrative responsibility for government actions. Their role is case-centric or department-centric, and their arguments are guided by briefs received from the State. Accordingly, the Court concluded that the post of Additional Advocate General in Rajasthan is not a “public office” of the type for which a writ of quo warranto can be issued. On this ground alone, the petition was held to be not maintainable. Rajasthan State Litigation Policy, 2018: Guideline or Enforceable Law? The central plank of the appellant’s case was that the Rajasthan State Litigation Policy, 2018

Rajasthan High Court Jaipur Bench Suspends Sentence in Lekhraj Meena v. State of Rajasthan: Principles on Bail Pending Appeal Reiterate

Rajasthan High Court Jaipur Bench Suspends Sentence in Lekhraj Meena v. State of Rajasthan: Principles on Bail Pending Appeal Reiterate Date of Judgment: 02.12.2025 The Jaipur Bench of the Rajasthan High Court, per Hon’ble Mr. Justice Uma Shanker Vyas, has allowed an application for suspension of sentence filed by accused–applicant Lekhraj Meena in S.B. Criminal Appeal (SB) No. 3120/2025, arising out of Sessions Case No. 01/2020. The order, passed on 02.12.2025 in S.B. Criminal Misc. Suspension of Sentence Application No. 2413/2025, once again reiterates the settled approach of appellate courts while considering suspension of sentence under Section 389 of the Code of Criminal Procedure during the pendency of a criminal appeal. In this matter, the appellant, aged about 30 years and presently confined in Central Jail, Jaipur, had approached the High Court assailing his conviction and sentence imposed by the trial court. Along with the appeal, he moved an application seeking suspension of the substantive sentence, essentially praying for bail during the pendency of the appeal. The State, represented by the Public Prosecutor, opposed the prayer for suspension of sentence. On behalf of the accused–applicant, it was argued that there was no reliable and legally acceptable evidence on record to justify his conviction for the alleged offences. The counsel submitted that the appeal raises substantial questions and that the applicant has every likelihood of succeeding in the criminal appeal. Importantly, it was pointed out that during the course of the trial the accused–applicant had remained on bail and there was no allegation of misuse of liberty or violation of conditions during that period. This past conduct on bail is a significant factor which appellate courts routinely take into account while deciding applications for suspension of sentence.  Another plank of the defence argument was the likely delay in disposal of the criminal appeal. Given the docket position of appellate courts and the time that final hearing may ordinarily take, it was submitted that continued incarceration of the appellant, despite an arguable case on merits, would cause undue prejudice. The accused–applicant also expressed willingness to deposit the entire fine amount imposed by the trial court. This readiness to comply with the monetary component of the sentence further weighed in favour of granting him interim indulgence. The learned Public Prosecutor, on the other hand, vehemently opposed the prayer for suspension of sentence. Although the order does not detail the specific grounds of opposition, such resistance generally stems from the gravity of the offence, the nature of evidence, and concerns regarding the possibility of absconding or tampering with witnesses. Nevertheless, the Court, after hearing both sides and perusing the material available on record, proceeded to form an opinion on the application. Without entering into a threadbare examination of the merits or demerits of the conviction, the High Court recorded that, considering the arguments advanced, it deemed it just and proper to suspend the sentence awarded to the applicant. This approach is in line with the settled law that, at the stage of suspension of sentence, the appellate court is not required to conduct a mini trial or reappreciate evidence in detail. It must, however, satisfy itself that the appeal is not frivolous, that there is an arguable case, and that factors such as the period of sentence, conduct of the accused and delay in final hearing justify the grant of bail during appeal. The Court, therefore, allowed the application for suspension of sentence subject to an important condition: the accused–applicant must deposit the fine imposed by the learned trial court. Only upon such deposition does the benefit of suspension of sentence become operative. This reflects a balanced approach, ensuring that while the liberty of the appellant is protected, the punitive and deterrent element of the monetary fine is not kept in abeyance.  In terms of conditions, the order directs that the sentence of imprisonment awarded to the accused–applicant, Lekhraj Meena son of Shri Murari Lal Meena, shall remain suspended during the pendency of the appeal. He is to be released on bail upon furnishing a personal bond of ₹1,00,000 along with two sureties of ₹50,000 each to the satisfaction of the trial court. The Court has further stipulated that the appellant must appear before the High Court on 05.01.2026 and thereafter as and when called upon to do so. These conditions are consistent with the objective of securing the presence of the appellant at future hearings and preventing any abuse of the concession granted. From a legal standpoint, this order fits within the broader framework of Section 389 CrPC, which empowers the appellate court to suspend execution of the sentence pending appeal and release the convict on bail. Indian appellate courts, including the Supreme Court, have repeatedly emphasised that when the appeal is likely to take considerable time for final disposal, and the convict has already undergone a substantial part of the sentence or has a credible case on merits, suspension of sentence may be justified, particularly where the accused has not misused liberty when previously on bail. The present order of the Rajasthan High Court reflects adherence to these guiding principles in a concise but clear manner. The fact that the Court has explicitly refrained from commenting on the merits of the case is also notable. Any detailed observations at this stage could prejudice the appeal, either against the appellant or the prosecution. By confining itself to a broad satisfaction that it is a fit case for suspension of sentence, the High Court preserves the sanctity of the future appellate hearing while simultaneously ensuring that the appellant is not unnecessarily kept in custody during a potentially long wait. For practitioners and litigants, this judgment from the Jaipur Bench underscores key practical takeaways. First, prior conduct on bail during trial remains a strong factor in favour of suspension of sentence. Second, a clear statement regarding the readiness to deposit the entire fine amount can further strengthen an application. Third, demonstrating that the appeal raises arguable issues and that final hearing will reasonably take

Rajasthan High Court Grants Bail in Cyber Crime Case under BNSS: Kamlesh Kumar v. State of Rajasthan

Rajasthan High Court Grants Bail in Cyber Crime Case under BNSS: Kamlesh Kumar v. State of Rajasthan Date of Judgment: 03.12.2025 The Jaipur Bench of the Rajasthan High Court, in S.B. Criminal Misc. Bail Application No. 13750/2025, Kamlesh Kumar v. State of Rajasthan, has granted regular bail to a 22-year-old accused booked in a cyber-fraud case under the Bharatiya Nyaya Sanhita, 2023 (BNS) and the Information Technology Act, 2000. The order dated 03.12.2025 was passed by Hon’ble Mr. Justice Sameer Jain while exercising powers under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).  The case arose from FIR No. 07/2024 registered at Cyber Crime Police Station, Baran, District Baran. The prosecution has invoked Sections 316(2), 318(4), 319(2) and 61(2) of the BNS, 2023 along with Sections 66C and 66D of the IT Act, provisions typically attracted in cases involving cheating, impersonation and fraudulent electronic transactions. The investigation apparently traced substantial online financial movement, and the State specifically highlighted that several complaints had been lodged against the accused on the National Cyber Crime Portal on the helpline number 1930. This background was pressed by the prosecution to oppose the bail plea and to suggest that the accused was part of a wider pattern of cyber fraud.  On the other side, counsel for the accused-applicant emphasised personal and procedural factors rather than contesting the merits of the allegations at this stage. It was submitted that Kamlesh Kumar, aged about 22 years, is the sole breadwinner of his family and that he has already undergone about two and a half months of incarceration. The defence also pointed out that the investigation has culminated in filing of the charge-sheet and that the case is triable by a Magistrate, and therefore prolonged pre-trial custody would serve no useful purpose. These submissions were aimed at bringing the case within the settled parameters of bail jurisprudence, where the nature of offence, stage of investigation, length of custody and the profile of the accused are all relevant considerations.  The Public Prosecutor vehemently opposed the application and relied on two principal aspects. First, the existence of multiple complaints on the National Cyber Crime Portal was presented as an indicator of repetitive or large-scale fraudulent conduct. Second, the prosecution stressed that the “financial transaction of enormous amount” involved in the case warranted continued custody. Though the order does not detail the sums involved, the court clearly had before it material suggesting that the case was not a petty or isolated incident. The State thus sought to treat the matter as a serious economic offence in the digital space, an area where courts are increasingly cautious, keeping in mind the rise of online frauds and the difficulty in securing digital evidence.  After hearing both sides, the High Court balanced the competing considerations of individual liberty and the interests of effective prosecution. The Court specifically recorded that the accused is 22 years old, is the sole bread earner of his family, has been in custody for about two and a half months, that the charge-sheet has already been filed and that the case is triable by a Magistrate. These factors show that the Court applied the familiar “triple test” of bail in a practical manner: once investigation is complete and the accused is not shown to be a flight risk or likely to tamper with evidence, continued detention becomes more difficult to justify, particularly when the trial forum is a Magistrate’s court. The Court also consciously refrained from commenting on the merits or demerits of the allegations, thereby ensuring that the trial remains uninfluenced and that the bail order does not prejudge the evidence.  In this backdrop, the Court held that it was inclined to enlarge the accused on bail. Exercising powers under Section 483 BNSS, which broadly corresponds to the earlier Section 439 of the Code of Criminal Procedure relating to the High Court’s inherent authority to grant bail, the application was allowed. Kamlesh Kumar was ordered to be released on furnishing a personal bond of ₹50,000 with two sureties of ₹25,000 each, to the satisfaction of the trial court. The condition regarding regular appearance before the trial court on all dates of hearing reinforces that bail is a conditional liberty, and that the accused remains answerable to the process of law throughout the trial. This order is significant for cyber-crime prosecutions under the new BNS–BNSS framework. Even where multiple online complaints and substantial financial transactions are stated to be involved, the Rajasthan High Court has reiterated that pre-trial incarceration cannot be treated as a substitute for punishment. The judgment shows that once the investigation is complete and the accused has spent a reasonable period in custody, bail will ordinarily follow unless there are strong reasons on record to believe that release will obstruct justice. The emphasis on youth, sole breadwinner status and Magistrate-triable nature of the offence illustrates that human and socio-economic considerations continue to play an important role in bail decisions, even in technologically complex economic offences. For practitioners, this decision from the Jaipur Bench underscores that bail applications in cyber-crime matters should carefully highlight completion of investigation, length of custody, the forum of trial and the personal circumstances of the accused, while assuring the court on cooperation and regular attendance. Simultaneously, the State is reminded that mere reference to large financial transactions or multiple complaints, without concrete material to show risk of absconding or interference with evidence, may not be sufficient to defeat a well-founded plea for bail under Section 483 BNSS. Read Complete Order Here By Advocate Bhuvnesh Kumar Goyal