Srinagar, May 21, KDC: The High Court of Jammu & Kashmir and Ladakh has granted a pre-arrest bail to an Army personnel booked under the Protection of Children from Sexual Offences (POCSO) Act, saying the special facts of the case justified relief despite restrictions under Section 482(4) of Bharatiya Nagarik Suraksha Sanhita (BNSS).
Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced provisions relating to anticipatory bail under the old Criminal Procedure Code (CrPC), deals with anticipatory bail, a legal remedy that allows a person to seek court protection against arrest before being taken into custody. Sub section (4) places restrictions on granting such relief in specified serious offences, making the High Court’s decision significant as it examined whether exceptional facts could justify relief despite the statutory limitation.
A single bench of Justice Rajesh Sekhri passed the order while allowing a bail application filed by Rakesh Kumar, a resident of Basantpur in Kathua district, who had sought anticipatory bail in FIR No. 0018/2025 registered at Women Police Station Kathua under Sections 4, 6, 12 and 15 of the POCSO Act (law dealing with sexual offences against children) and Sections 64, 65, 75, 351 and 352 of Bharatiya Nyaya Sanhita (BNS), 2023.
The petitioner had approached the High Court under Section 482 BNSS (provision dealing with anticipatory bail) seeking protection from arrest mainly on the ground that the woman complainant (prosecutrix—legal term for victim/complainant in such cases) had later changed her stand, attained adulthood and married him.
According to court records, the case began with a complaint filed on October 27, 2025. The complainant had alleged that the accused, an Army personnel, sexually exploited her for nearly three years when she was a minor (below 18 years of age). She accused him of showing objectionable content to influence her into a sexual relationship and later threatening to circulate private photographs on social media if she disclosed the matter. Similar allegations were also levelled against the accused’s brother.
However, during investigation, the complainant moved an application before the Senior Superintendent of Police (SSP), Kathua, seeking re-recording of her statement and stated that her earlier allegations were “not based on true and correct facts.” She further alleged that she had been pressured and influenced by police officials into making statements against the accused.
She later filed an affidavit (written statement made under oath) before the Sessions Court claiming that she had only intended to marry the petitioner and had been “ill advised, tutored and influenced” by police officials. After attaining majority (turning 18 years old), she told the court that she wanted to marry him without delay.
Her statement before the Chief Judicial Magistrate (CJM) Kathua also became important during the hearing. According to the court order, she stated she had been in a relationship with the petitioner for three years and filed the FIR after believing he had abandoned her.
“She got scared and thereafter she was ill advised and influenced by her relatives and police officials of Himachal to lodge the FIR,” the High Court recorded while referring to her statement before the Magistrate.
The complainant also informed the Magistrate that she had now married the petitioner and did not want legal action against him. She further disclosed that both had jointly approached the High Court seeking quashing (cancellation) of the FIR.
The trial court had earlier refused anticipatory bail mainly citing Section 482(4) BNSS, which places restrictions on granting anticipatory bail in certain serious offences.
Opposing the plea, government counsel argued that the allegations were serious and highlighted the legal restriction under Section 482(4) BNSS. However, counsel appearing for the complainant informed the High Court that she had no objection to grant of anticipatory bail.
After examining the case record, Justice Sekhri pointed out the changed circumstances that emerged during investigation.
“The admitted position emerging from the record is that the prosecutrix-private respondent, in her statement before the Magistrate, has clearly stated that she was in love with the petitioner and had lodged the FIR against him and his brother on the advice of the police officials and her relatives,” the Court observed.
The High Court further noted that the complainant had stated she was now married to the petitioner and wanted to live with him.
“Since prosecutrix has no objection to the grant of bail in favour of the petitioner, present application is allowed,” the court held while granting relief.
The Court directed that in case of arrest, the petitioner should be released on furnishing a surety bond (financial guarantee ensuring appearance before court) of Rs 25,000 and a personal bond of the same amount before the trial court.
The High Court also imposed conditions that the accused shall not influence witnesses, interfere with evidence, leave Jammu and Kashmir without court permission and must regularly appear before the trial court. (KDC)
