Court emphasizes the importance of context and mutual affection in determining bail for cases under POCSO Act
In a significant ruling, the Jammu and Kashmir High Court, Srinagar Bench, has granted bail to Shahnawaz Amin Shah, accused under the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the Bharatiya Nagarik Suraksha Sanhita (BNS), recognizing the consensual nature of the relationship between the accused and the minor victim.
Presiding over the case, Justice Sanjay Dhar emphasized the necessity of assessing individual case contexts, especially in instances involving young adults where mutual affection is evident. The case stems from an FIR filed in January 2025, accusing Shah of kidnapping and engaging in a forcible sexual relationship with a minor girl. The victim, however, testified that she willingly accompanied Shah, with whom she shared a close relationship, contradicting claims of coercion.
The judgment highlights the court's stance on the role of consent and relational dynamics, notwithstanding the legal irrelevance of consent from a minor. The court observed that ignoring the consensual aspect could lead to unjust outcomes, including wrongful imprisonment. This approach aligns with the directives of the Supreme Court and other high courts, which advocate for judicial discretion and context-sensitive evaluations in POCSO cases involving teenagers.
The court noted that all material witnesses, including the victim, had been examined, minimizing the risk of evidence tampering. Consequently, Shah was granted bail with conditions, including a personal bond of Rs. 50,000, regular court appearances, and restrictions on leaving the Union Territory without prior permission.
This ruling underscores the judiciary's effort to balance legal mandates with social realities, aiming for justice that considers the complexities of teenage relationships.
Bottom line:-
POCSO Act - While considering bail in cases involving minor victims under the POCSO Act, the court must assess the context of the relationship, victim's statement, and avoid a perverse application of justice. Consensual relationships among teenagers, though not legally valid, may influence the determination of bail when evidence shows mutual affection and no threat of witness tampering.
Statutory provision(s):
- Protection of Children from Sexual Offences (POCSO) Act, 2012, Section 4
- Bharatiya Nagarik Suraksha Sanhita (BNS), Sections 64, 137(2), 351(2)
Shahnawaz Amin Shah v. UT of J&K, (Jammu And Kashmir)(Srinagar Bench) : Law Finder Doc id # 2916457
