Tacit Approval Of Minor Not Consent In Law But Has Bearing On Bail: J&K&L High Court Grants Bail In POCSO Matter

The High Court of Jammu & Kashmir and Ladakh has held that although consent of a prosecutrix is legally irrelevant in offences under the Protection of Children from Sexual Offences Act, 2012, cases involving romantic relationships between young adults where there may have been “tacit approval in fact, though not consent in law” for a sexual relationship are required to be viewed with less severity while considering bail.The Court observed that such relationships may be “misguided”, but they stand on a different footing from aggravated exploitative sexual offences, and that refusal of bail in such circumstances may amount to “perversity of justice”. The Court was hearing a bail application filed under Section 483 BNSS by an accused facing trial for offences under Sections 64, 137(2) and 351(2) of the Bharatiya Nyaya Sanhita along with Section 4 of the POCSO Act. A Bench comprising Justice Sanjay Dhar observed: “While consent of the prosecutrix is legally irrelevant in cases involving offences under the POCSO Act, yet the Courts have recognised the relationships among young adults in cases where there may have been de facto approval of young adults for a sexual relationship. Such sexual relationships are definitely misguided, but have to be treated on a different footing. When the facts and circumstances of a particular case show that there was tacit approval in fact, though not consent in law for the sexual intercourse between two young adults, the offence that may have been committed has to be looked at with less severity.” According to the prosecution's case, the father of the prosecutrix lodged a report alleging that his minor daughter had been kidnapped by the petitioner and taken to an undisclosed location. On the basis of the complaint, an FIR came to be registered, and an investigation was initiated. During the investigation, the prosecutrix was recovered after a disclosure allegedly made by the petitioner. Her statement under Section 183 BNSS was thereafter recorded before the Judicial Magistrate. In her statement before the Magistrate, the prosecutrix stated that she had come in contact with the petitioner, who used to work at a construction site near her house, and that the two had developed regular telephonic communication over a period of time. She further stated that she accompanied the petitioner to various locations and ultimately stayed with him at a house, where he allegedly established physical relations with her. The investigation further revealed that the prosecutrix was a minor at the relevant time. After completion of the investigation, charges were framed under provisions of the BNS and the POCSO Act. The petitioner sought bail, contending that during trial, the prosecutrix had admitted accompanying him out of her own will and volition and had further admitted that the two were in love with each other. It was also contended that the material prosecution witnesses, including the prosecutrix and her parents, had already been examined before the Trial Court. The High Court examined the deposition of the prosecutrix recorded during the trial and noted that she had categorically stated that she had been in telephonic contact with the petitioner for around two months and that the two used to express love for each other during conversations. The Court further noted that the prosecutrix admitted boarding several public transport vehicles with the petitioner out of her own will and volition and had also stated during cross-examination that physical relations between them were consensual in fact because they loved each other. The Bench observed that the mother of the prosecutrix had also stated during cross-examination that the prosecutrix and the petitioner were in love with each other and that the prosecutrix had left home of her own accord. The witness further stated that even after the arrest of the petitioner, the prosecutrix continued to stay with the petitioner's family and desired to marry him. While recognising that consent of a minor has no legal sanctity under the POCSO Act, the High Court nevertheless observed that factual circumstances demonstrating a romantic relationship and tacit approval in fact cannot be ignored while considering bail.The Court observed: “Such sexual relationships are definitely misguided but have to be treated on a different footing.” Referring to the evidence that had emerged during the trial, the Court held: “Though the consent that may have been given by the victim to the sexual intercourse committed by the petitioner with her has no legal sanctity because she was a minor at the relevant time, yet it does have bearing upon the determination of the question relating to the grant of bail.” The Court further observed: “In such circumstances, if bail is refused to the petitioner, it would be a perversity of justice.” The High Court referred to the Supreme Court judgment in State of Uttar Pradesh vs. Anurudh & Anr. (2026) wherein the Supreme Court had taken note ...

Tacit Approval Of Minor Not Consent In Law But Has Bearing On Bail: J&K&L High Court Grants Bail In POCSO Matter

LIVELAW NEWS NETWORK

This is a premium content
Available exclusively to
Our subscribers

INR 1099+GST

Tags

LIVELAW NEWS NETWORK

Tacit Approval Of Minor Not Consent In Law But Has Bearing On Bail: J&K&L High Court Grants Bail In POCSO Matter

LIVELAW NEWS NETWORK

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

LIVELAW NEWS NETWORK

This is a premium content
Available exclusively to
Our subscribers