Srinagar, June 29: The High Court of Jammu and Kashmir and Ladakh has granted bail to an accused booked under the Protection of Children from Sexual Offences (POCSO) Act, observing that while a minor’s consent has no legal validity, the factual circumstances surrounding a consensual adolescent relationship can be considered while deciding a bail application.
Justice Sanjay Dhar passed the order in connection with an FIR registered at Police Station Magam, where the accused was charged under provisions of the Bharatiya Nyaya Sanhita (BNS) relating to kidnapping and rape, along with Section 4 of the POCSO Act.
During the hearing, the High Court noted that the prosecutrix, while deposing before the trial court, stated that she had voluntarily accompanied the accused, was in a romantic relationship with him, and had engaged in a physical relationship of her own free will.
The Court also took into account the testimony of the girl’s mother, who stated that the couple was in love, her daughter had left home voluntarily, and continued to reside with the accused’s family even after his arrest as she intended to marry him.
Referring to the Supreme Court judgment in State of Uttar Pradesh v. Anurudh & Another, the High Court observed that although the consent of a minor has no legal sanctity under the POCSO Act, the surrounding factual circumstances of such relationships may still be relevant while considering the limited question of grant of bail.
Justice Dhar held that, in the peculiar facts and circumstances of the case, refusing bail would amount to a “perversity of justice.” The Court further noted that all material prosecution witnesses had already been examined, substantially reducing the possibility of influencing witnesses or tampering with evidence.
Accordingly, the High Court allowed the bail application, while clarifying that the observations made in the order were confined only to the question of bail and would not affect the merits of the ongoing trial.(KNC)
