In a closely reasoned order passed on June 5, 2026, the High Court of Jammu & Kashmir at Srinagar granted bail to a man accused under the POCSO Act, after finding that the prosecutrix herself had consistently stated both before the Magistrate and during trial that she had accompanied the accused entirely of her own free will.
The case raised a difficult question that courts across India have increasingly grappled with: when a minor is in a relationship she describes as consensual, does strict application of the POCSO Act serve justice or work against it?
Background of the Case
The case began on January 2, 2025, when the father of a 16-year-old girl filed a complaint with Police Station, Magam, alleging that his daughter had been kidnapped by Shahnawaz Amin Shah on New Year's Day. An FIR was registered under Section 137(2) of the Bharatiya Nyaya Sanhita (BNS), relating to kidnapping of a minor.
During investigation, the accused was arrested and the girl was recovered from a house in Dooru, Anantnag. A chargesheet was filed in February 2025 before the Principal Sessions Judge, Budgam, for offences under Sections 64 and 137(2) of BNS and Section 4 of the POCSO Act which deals with penetrative sexual assault on a child.
The accused is 33 years old, born in 1992. The victim's date of birth is recorded as December 27, 2008, making her 16 at the time.
The trial court dismissed his bail application in October 2025, prompting the accused to approach the High Court.
During trial, the prosecutrix told the court plainly that she had been in phone contact with the accused for about two months before the incident. She stated she accompanied him voluntarily on January 1, 2025, and that whatever happened between them was of her own free will because they loved each other.
Even more striking was the testimony of her mother, PW-3. In cross-examination, she told the court that her daughter and the accused were in love, that the accused had not kidnapped her, and that even after his arrest the girl continues to live with his family and refuses to return home. The mother added that she wants the accused released so the two can marry.
Justice Sanjay Dhar acknowledged the seriousness of the charges.
"The petitioner is facing trial for offence under Section 4 of POCSO Act and there is a statutory presumption of guilt operating against him," the bench noted, while also pointing out that this presumption is rebuttable.
The court then examined a 2026 Supreme Court ruling in State of UP vs. Anurudh & Anr., which had flagged how the POCSO Act, when applied rigidly to consensual teenage relationships, can sometimes harm the very individuals it is designed to protect. The bench also referred to guidelines laid down by the Allahabad High Court in Satish alias Chand vs. State of UP, which asked courts to assess context, give weight to the victim's own statement, and exercise careful judicial discretion.
Applying these principles, the court observed that while the victim's consent carries no legal validity under POCSO, it still bears relevance when deciding bail.
"In such circumstances, if bail is refused to the petitioner, it would be a perversity of justice," the bench held.
The court also noted that all material prosecution witnesses including the victim and her parents had already been examined. Only police officers, doctors, and formal witnesses remained, reducing any risk of witness tampering.
The High Court allowed the bail application. The petitioner was directed to furnish a personal bond of ₹50,000 with two sureties, appear on every date of hearing before the trial court, not leave the Union Territory of J&K without prior permission, and not intimidate or tamper with prosecution witnesses or evidence.
Case Details:
Case Title: Shahnawaz Amin Shah v. UT of J&K and Anr.
Case Number: Bail App No. 42/2026
Judge: Hon'ble Mr. Justice Sanjay Dhar
Decision Date: June 5, 2026
 Sanjay Prasad, IAS-300x169.webp)
