SRINAGAR: The High Court of Jammu and Kashmir and Ladakh has granted bail to a 33-year-old Budgam man accused of kidnapping and sexually assaulting a minor girl, observing that the evidence recorded during trial pointed to a relationship based on mutual affection and that continued detention in the peculiar circumstances of the case would amount to a “perversity of justice”, Live Law reported.
Justice Sanjay Dhar passed the order while hearing a bail application filed by Shahnawaz Amin Shah, who has been in custody since January 2026, in connection with FIR No 01/2025 registered at Police Station Magam.
The case arose after the father of a 16-year-old girl lodged a complaint on January 2, 2025, alleging that his daughter had been kidnapped a day earlier. Police registered a case under Section 137(2) of the Bharatiya Nyaya Sanhita and launched an investigation.
According to the prosecution, the accused, who worked at a construction site near the girl’s residence, had developed contact with her and later took her to Anantnag. Investigators traced the girl to a house in Dooru Shahabad, where she was recovered by police. During the investigation, allegations of sexual assault surfaced, leading to the addition of charges under Section 64 of the Bharatiya Nyaya Sanhita and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act.
The girl’s statement, recorded before a magistrate, indicated that she had first come into contact with the accused after he handed her a letter containing his mobile phone number. Their interaction gradually developed into regular conversations and, according to her statement, a friendship that lasted for nearly two months before they left together on January 1, 2025.
The prosecution maintained that the accused took the minor girl from Budgam to Dooru in Anantnag, introduced her as his wife to the occupants of a house where they stayed and subjected her to sexual intercourse during the night.
Court records showed that the prosecutrix was born on December 27, 2008, making her a minor at the time of the incident. The accused was born on April 28, 1992.
The charge sheet was filed before the Principal Sessions Judge, Budgam, in February 2025 and charges were framed in April. By the time the bail application came up before the High Court, six prosecution witnesses, including the prosecutrix and her parents, had already testified.
The defence argued that the testimony of the prosecutrix had substantially altered the complexion of the case. During the trial, she stated that she had accompanied the accused voluntarily and that the two were in love. She also admitted that they remained in frequent telephonic contact and that she travelled with him through several locations without any coercion.
In her cross-examination, the girl stated that she boarded vehicles with the accused out of her own free will and that the physical relationship between them occurred because they loved each other.
The High Court also took note of the testimony of the girl’s mother, who stated that her daughter and the accused were in love and that the girl had left home voluntarily. Significantly, the witness stated that even after the arrest of the accused, her daughter continued to stay with his family and repeatedly expressed her desire to marry him. According to the mother, the family had attempted several times to persuade the girl to return home, but she refused.
While considering the bail plea, Justice Dhar emphasised that the consent of a minor carries no legal validity under the POCSO Act and that the accused continues to face trial for serious offences, including statutory rape.
However, the court observed that the factual circumstances emerging during trial could not be ignored while deciding the question of bail.
The judgment referred to the recent Supreme Court ruling in State of Uttar Pradesh v. Anurudh, which discussed concerns regarding the application of the POCSO Act in cases involving consensual relationships among adolescents and young adults. The Supreme Court had noted the need for courts to carefully assess the context of each case to avoid unjust outcomes.
Relying on those principles, Justice Dhar observed that while the alleged relationship may have been legally impermissible because the girl was underage, the evidence suggested that she had willingly accompanied the accused and continued to insist on living with him.
The court held that these circumstances warranted consideration while deciding the bail application.
“In such circumstances, if bail is refused to the petitioner, it would be a perversity of justice,” the court observed.
Another factor that weighed with the court was the progress of the trial. Justice Dhar noted that all material witnesses, including the prosecutrix and her parents, had already been examined and that only formal witnesses, such as police officials and doctors, remained to testify. As a result, the possibility of the accused influencing key witnesses was considerably reduced.
Allowing the application, the High Court directed the release of the accused on a personal bond of Rs 50,000 with two sureties of the like amount. The court imposed conditions requiring him to appear before the trial court on every date of hearing, remain within the territorial limits of Jammu and Kashmir unless granted permission to travel and refrain from influencing witnesses or tampering with evidence.
The case was argued by advocate Mir Umer for the petitioner, while Deputy Advocate General Bikramdeep Singh represented the Union Territory administration.
The judgment, pronounced on June 5, 2026, adds to a growing body of judicial decisions that distinguish between the legal consequences of offences involving minors and the factual realities of consensual romantic relationships involving adolescents, particularly at the stage of considering bail.
