The statements a victim gives to the police and the Magistrate in the first weeks of a case often decide its trajectory years later. In Ahmad Hussain v. State of Bihar (Criminal Miscellaneous No. 26859 of 2026, decided 12 October 2026), the Patna High Court granted bail to a man accused under Section 366A IPC and Section 8 of the POCSO Act, after the Court-appointed amicus curiae reported that the victim's Section 161 and Section 164 statements did not support the allegations of kidnapping and sexual assault.
The allegations and the defence
The FIR, registered in Bhagalpur district in 2023, alleged that the petitioner kidnapped the informant\'s minor daughter — then about seventeen — for illicit intercourse or marriage, invoking Sections 366A, 120B and 34 of the IPC and Section 8 of the POCSO Act. The petitioner, in custody since 30 January 2026, said the two were in a relationship the girl\'s family opposed on account of religious difference; that she left home of her own volition in March 2023; that the two married; and that a radiological age estimate placed her between seventeen and nineteen. The chargesheet had been filed, removing, the defence argued, any realistic apprehension of evidence tampering.
The amicus\'s role
With the informant absent despite notice, Justice Chandra Shekhar Jha appointed an amicus curiae to examine the record. Her analysis was decisive: on the victim\'s own statements under Sections 161 and 164 CrPC, the allegations of kidnapping and sexual assault were not borne out, and the victim had stated that the relationship predated the FIR by about two years. The order records, in terms, that the allegation of kidnapping and sexual assault was “not available” against the petitioner on that material.
What the order illustrates
First, the early statements matter more than almost anything else in the bail calculus for sexual-offence cases. Where the Section 164 statement contradicts the FIR\'s core, courts increasingly decline to keep an accused in custody on the strength of the FIR alone. Second, the procedural device of the amicus curiae protects both sides: the absent informant\'s interest is independently represented, and the accused is not prejudiced by a one-sided hearing. Third, bail orders of this kind are deliberately narrow — the Court granted release on a bond of Rs. 10,000 with two sureties before the Special POCSO Court at Bhagalpur, subject to the conditions in Section 480(3) of the BNSS, and expressed no final view on guilt.
Practice points for the defence: obtain and study the Section 164 statement at the earliest stage; frame the bail plea around what the victim has actually said rather than around the FIR\'s characterisation; place age-determination material on record where age is contested; and where the informant is not appearing, assist the court in ensuring the record itself — not the absence — does the talking.
POCSO prosecutions where the alleged victim does not support the case present courts with a recurring dilemma. The answer at the bail stage is not to pre-judge the trial but to ask whether continued custody is justified on the material as it stands. On this record, the Patna High Court held it was not.
Frequently Asked Questions
What is the difference between Section 161 and Section 164 statements?
A Section 161 CrPC statement is recorded by the police during investigation and is not signed by the witness; it can be used mainly to contradict. A Section 164 statement is recorded by a Magistrate, carries greater sanctity, and in sexual-offence cases is routinely treated as an early, more reliable account of the victim's version. Under the BNSS, the corresponding provisions are Sections 180 and 183.
Why did the Court appoint an amicus curiae?
The informant did not appear despite notice. To ensure the victim's side of the record was fairly placed before the Court rather than decided by default, the Court appointed an amicus curiae, who analysed the case diary and the victim's statements and reported on what they actually disclosed.
Does bail in a POCSO case mean the accused is cleared?
No. Bail is a decision about custody pending trial, taken on a prima facie view. The trial before the Special POCSO Court proceeds on the full evidence, and the observations in a bail order do not bind the trial judge on the merits.
What conditions apply to bail granted under Section 480(3) BNSS?
The standard statutory conditions: the accused must attend court in accordance with the bond, must not commit a similar offence, and must not directly or indirectly tamper with evidence or influence witnesses. Courts may add case-specific conditions over and above these.