While legal consent is irrelevant for minors under the POCSO Act, factual evidence of a consensual relationship and mutual affection between teenagers can be considered as a mitigating factor in granting bail to prevent the perversity of justice.

JUDGMENT(ORAL)

05.06.2026

1) The petitioner has invoked jurisdiction of this Court under Section 4 83 of BNSS seeking bail in a case arising out of FIR No.01/2025 for offences under Section 64 , 137(2) of BNS and Section 4 of POCSO Act registered with Police Station, Magam, which is stated to be pending before the Court of learned Principal Sessions Judge, Budgam (hereinafter referred to as “the trial court”)

2) Briefly stated, as per the prosecution case, on 02.01.2025, PW-1, father of the prosecutrix, lodged a written report with the police alleging therein that his minor daughter, aged about 16 years, has been kidnapped by the accused (the petitioner herein) on 1st January, 2025 and that she has been taken to some undisclosed location. On the basis of this report, FIR No.01/2025 for offence under Section 137(2) of BNS was registered and investigation of the case was set into motion. During the course of investigation, the statements of witnesses acquainted with the facts of the case were recorded, whereupon it was revealed that the prosecutrix had been kidnapped by the petitioner herein and that he has concealed her in a house situated at Dooru Shahabad, Anantnag. On the basis of the disclosure statement made by the petitioner/accused, the prosecutrix was recovered from the aforesaid location. The petitioner was arrested and the prosecutrix was subjected to medical examination. Her statement under Section 183 of BNSS was recorded by the Judicial Magistrate 1st Class.

3) In her statement recorded before the learned Magistrate, the prosecutrix deposed that she is studying in 11th Class and that the petitioner used to work at a construction site near her house. She further stated that the petitioner tried to start a conversation with her and sent a letter to her with his mobile number written on it. She tried to avoid the petitioner for some time but finally called him on phone. This led to regular conversation between the two and they became friends. The prosecutrix further stated that this state of affairs continued for about two months and in the middle of December, 2024, when she went to her maternal grandmother’s house, the petitioner told him that on her return, he would meet her. On 1st January, 2025, at around 10 a.m., the prosecutrix went to meet the petitioner. They boarded a vehicle and reached Kanihama where the petitioner collected some luggage including a briefcase and bag. Again, they boarded a local bus to Srinagar and on reaching Srinagar, the petitioner asked the prosecutrix to accompany him to a friend’s house in Anantnag. The two left for Anantnag and reached Dooru where the petitioner took her inside a house. He told the prosecutrix not to divulge anything to the inmates of the house and he presented her as his wife before the inmates of the house. The two stayed for a night over there and during the night, the petitioner is stated to have committed forcible sexual intercourse with her. On the next morning at about 9.30 a.m., the petitioner left the house leaving behind the prosecutrix. At around 2.00 p.m., police personnel came over there and rescued her.

4) During the course of investigation, the Investigating Agency also collected the age proof of the prosecutrix which showed her date of birth as 27th December, 2008. The date of birth certificate of the petitioner was also collected wh