(This is a guest post by Akhil Yadav)
The Allahabad High Court granted Swami Avimukteshwaranand Saraswati anticipatory bail on 25 March 2026 for a case which involved two boys according to the Protection of Children from Sexual Offences Act 2012 (POCSO) which the authorities had filed. The first informant has since challenged the order before the Supreme Court by way of a Special Leave Petition. The High Court only provides a short explanation of the important question which the author needs to explain. The core issue remains unidentified by the High Court and the involved parties and the following media coverage. The question investigates why Section 482(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) never applied to this case because of the facts and what that reveals about an existing gap in India's pre-arrest bail system which has persisted since 2018 and which the 2023 legislative changes did not resolve.
The Anticipatory Bail Bar and Its Pedigree
The High Court and Court of Session receive authority to decide pre-arrest release matters according to Section 482 BNSS which replaces Section 438 CrPC. The section establishes an exception which states that “Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under section 65 and sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.” The current provision derives directly from Section 438(4) CrPC which the Criminal Law (Amendment) Act 2018 introduced following the Unnao and Kathua incidents. The provision defined Sections 376(3) and 376AB and 376DA and 376DB of the IPC as offences which included minor titles that described ‘Punishment for rape on woman under sixteen years of age’ and ‘Punishment for gang rape on woman under sixteen years of age.’
The legislative purpose was visible and urgent: to deny perpetrators of the most heinous sexual offences against girl children the protection of pre-arrest bail. The IPC provisions from 2023 BNS and BNSS enactment consolidated into BNS Sections 65 and 70(2) which resulted in an amendment to the bail restriction. Section 65 BNS punishes rape of a woman under sixteen years with a minimum of twenty years' rigorous imprisonment. Section 70(2) prescribes life imprisonment or death for gang rape of a woman under eighteen years. The most important aspect of the bar refers to the separate provision which exists within POCSO itself. The comparison between the two laws shows how the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 works. The Act includes Section 18 which establishes that Section 438 CrPC which became Section 482 BNSS through the current law shows no applicability to cases that involve arrests under the Act. The system uses a complete prohibition which functions through its built-in mechanisms.
The design of the substantive offences creates a gap which exists between two parties. The BNS 2023 defines rape in gender-specific terms which determine that a man must commit the crime against a woman. The law only permits Sections 65 and 70(2) to be used for aggravated rape cases which involve female victims.
The POCSO uses a gender-neutral framework to make all sexual offences against children of any sex into criminal activities. The existing system faces a structural problem because POCSO recognizes identical offences against male and female children while BNSS 2023 anticipatory bail bar only applies to offences which fall under specific gender-based rules of the BNS. The law blocks male child offences which match serious status from the statutory prohibition.
The Gauhati High Court's Interpretation and Its Limits
The initial investigation into this disjunctive statement requires a resolution of Section 482(4) BNSS which the Gauhati High Court examined as a different textual issue. The literal interpretation of "and" which connects Section 65 to Section 70(2) creates a ridiculous situation because an accused person requires simultaneous charges under both laws yet this situation remains impossible to achieve since the laws define separate crimes which have different age requirements for victims and different penalties. The ruling in June 2025 establishes “and” should function as “or” because interpreters must follow purposive reading when literal interpretations lead to nonsensical results. Both Section 65 and Section 70(2) declare “woman” whether these sections connect through conjunction or disjunction. The court must interpret ‘woman’ according to its established meaning because no evidence exists to support a “child” definition which would expand a legal provision beyond its established boundaries through purposivism. The Gauhati HC's reading establishes wider restrictions for cases involving female victims while it maintains complete control over cases involving male child victims. The gender gap continues to exist after fixing the ‘and/or’ problem.
The Consequence in Practice
The FIR in the Prayagraj case was registered under POCSO Sections 3, 4(2), 5(1), 6, 16, and 17, alongside Section 351(3) of the BNS (criminal intimidation). The BNS Sections 65 and 70(2) charges could not exist because both sections require a female victim whereas the alleged victims are male. The anticipatory bail bar in Section 482(4) BNSS therefore never entered the picture. The Allahabad High Court used Section 482(1) framework to analyze the case according to Sushila Aggarwal v. State NCT of Delhi, which listed three factors to determine bail eligibility based on the offence's nature and severity and evidence tampering risk and flight risk.
The High Court's ruling about Section 29 shows that guilt presumption cannot start until prosecutors present charges, which matches the Delhi High Court's complete explanation in Dharmander Singh v. State (Govt. of NCT, Delhi) and the Allahabad HC's parallel decision in Monish v. State of U.P.. The court accepted the argument because pre-arrest application of Section 29 would demand a small trial and violate the right of silence while forcing an accused person to disprove an uncharged accusation. The blog has explained the Section 29 presumptive clause through its analysis of the court's reasoning, which builds a shared understanding among High Courts despite remaining areas of disagreement.
The Structural Asymmetry and What It Means
Step back from the facts of the Prayagraj case and consider what the structural gap produces in the abstract. A person accused of aggravated penetrative sexual assault of a child below twelve years, an offence under POCSO Section 5(m) carrying a minimum sentence of twenty years faces very different pre-arrest bail positions depending solely on the victim's sex. If the victim is a girl, the Explanation to Section 65 BNS brings the case within the ambit of BNS Section 65 (rape of a woman under twelve years), and Section 482(4) BNSS bars anticipatory bail entirely. The charge against him only covers POCSO when the victim is a boy since Section 482(4) does not apply to him; Section 482(1) gives the court authority to grant anticipatory bail. The gravity of the offence is identical, the minimum sentence may be identical, the harm to the child is identical but the accused's access to pre-arrest bail protection is radically different, turning entirely on whether the child is male or female.
This asymmetry is not an argument about whether anticipatory bail should or should not have been granted in any particular case. Courts retain ample discretion to refuse anticipatory bail even without a statutory bar and in cases of serious sexual offences against children that discretion should be exercised with great care. The statutory framework eliminates discretion for judges when girls become victims while boys maintain their right to judicial discretion.
Towards a Fix
Two distinct paths exist which lead to a solution. The narrower and more immediately achievable solution requires Section 482(4) BNSS to include POCSO Sections 5 and 6 which define aggravated penetrative sexual assault and its punishment. The proposed change would expand the anticipatory bail prohibition to include serious sexual offences against male children which POCSO recognizes. The BNS rape provisions should receive gender-neutral treatment of victims according to the recommendations made by the Law Commission and the Justice Verma Committee and the 2013 Ordinance since this change would extend BNS Sections 65 and 70(2) to male child rape victims which leads to automatic application of Section 482(4). The proposed reform has faced ongoing resistance which makes it improbable to become the speedier solution to the problem. Section 482(4) BNSS will maintain its protection yet which depends on the child's sex until one of these methods gets implemented. This result contradicts the gender-neutral child protection system which POCSO established through its implementation.
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