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

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 of instances where provisions of the POCSO Act worked harshly in cases involving consensual adolescent relationships.

The Court also reproduced factors highlighted by the Allahabad High Court in Satish alias Chand vs. State of UP (2024) regarding the manner in which courts should evaluate such cases. These included assessing the context of the relationship, giving due consideration to the statement of the victim, avoiding “perversity of justice” and exercising judicial discretion in a manner that does not inadvertently harm the very individuals whom the statute seeks to protect.

The High Court further noted that the prosecutrix, her parents and other material witnesses had already been examined during the trial and that only police officials, doctors and formal witnesses remained to be examined. The Court observed that in such circumstances, there was hardly any likelihood of the petitioner tampering with prosecution evidence or influencing witnesses if released on bail.

The Court concluded: “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. In such circumstances, if bail is refused to the petitioner, it would be a perversity of justice. This Court has to take into consideration the fact that it has come in evidence on record that even after the arrest of the petitioner, the prosecutrix continues to live with his family, and she has not come back to her parental house, which shows that she is adamant on living with the petitioner. In these special circumstances of the case, a prima facie case for grant of bail is made out in favour of the petitioner”.

The High Court held that the peculiar facts emerging during trial, including the prosecutrix's own testimony regarding her relationship with the petitioner, disclosed special circumstances warranting the grant of bail. The Court observed that while the consent of a minor prosecutrix has no legal recognition under the POCSO Act, factual circumstances indicating de facto approval and a romantic relationship between young adults cannot be ignored while considering the question of bail.

Accordingly, the Court allowed the bail application and directed the release of the petitioner on bail subject to furnishing of personal bond and sureties, appearance before the Trial Court on each date of hearing, restriction on leaving the territorial limits of the Union Territory of J&K without permission of the Trial Court and non-interference with prosecution witnesses or evidence.

Case Title: Shahnawaz Amin Shah v. UT of J&K and Anr.

Citation: 2026 LiveLaw (JKL)

Appearances

For the Petitioner: Advocate Mir Umer.

For the Respondents: Deputy Advocate General Bikramdeep Singh.

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