Srinagar, Oct. 2, KDC: The High Court of Jammu & Kashmir and Ladakh has ruled that while the consent of a child carries zero legal validity and cannot be cited as a defense against sexual assault charges under the POCSO Act, the factual background of a mutual relationship between young persons can be taken into account solely to evaluate the question of continued detention pending trial.
Allowing a bail application, Justice M. A. Chowdhary ordered the enlargement of Tanveer Hussain Dar, a resident of Khumani Chowk, Bemina, who had remained incarcerated as an under-trial prisoner for more than four years in connection with a 2022 case registered under the Protection of Children from Sexual Offences (POCSO) Act.
The petitioner had approached the High Court challenging an order dated December 23, 2025, passed by the Fast Track Court for POCSO Cases, Srinagar, which had rejected his bail plea in FIR No. 54/2022 of Police Station Bemina. The case had been registered under Sections 363 (kidnapping), 376 (rape), and 109 of the Indian Penal Code, read with Section 4 of the POCSO Act.
Appearing for the accused, Advocates Danish Majid Dar and Ahra Syed argued that medical records and investigational material pointed toward an adolescent acquaintance between the parties. They contended that prolonged pre-trial incarceration of over four years without the conclusion of trial impaired the applicant’s fundamental right to a speedy trial under Article 21 of the Constitution.
Opposing the petition, Senior Additional Advocate General Mohsin Qadri, assisted by Assisting Counsel Nadiya Abdullah, and Legal Aid Panel Counsel Asifa Padroo, appearing for the victim’s father, argued that because the victim was a minor, no legal consent could be attributed to her. The prosecution insisted that under Sections 29 and 30 of the POCSO Act, statutory presumptions of guilt operate against the accused and that a criminal offence cannot be watered down by calling it an adolescent love affair.
“There can be no dispute that where the victim was below eighteen years of age, her consent has no legal validity for the purpose of determining criminal culpability under the POCSO Act. The Supreme Court has specifically observed that sexual intercourse with a person below eighteen years, irrespective of consent, attracts the statutory consequences prescribed by law,” Justice M. A. Chowdhary firmly held, adding “The Court also emphasised that courts are bound to apply the statutory framework and cannot treat such an offence as lawful merely because the parties describe their relationship as romantic. Therefore, this Court is not accepting the submission that the prosecutrix’s alleged consent constitutes a defense to the prosecution.”
“At the same time, the factual circumstance that the parties were acquainted with each other, if borne out from the material collected during investigation, cannot simply be erased from consideration while examining the question of custody pending trial. It may have a limited bearing upon the assessment of the surrounding circumstances for the purpose of bail, without conferring any legal validity upon the alleged consent of the minor and without prejudging the merits of the prosecution,” the Bench observed.
Referring to coordinate bench precedent, the court underlined that such factual appreciation serves only to gauge surrounding circumstances during pre-trial custody and can never be elevated into a legal defense against the charge itself.
The High Court also held that the statutory presumptions under Sections 29 and 30 of the POCSO Act are rebuttable and do not create an absolute statutory bar against granting bail. Pointing to the Supreme Court rulings, Justice Chowdhary noted that pre-trial detention cannot be converted into punishment, particularly when an accused has spent over four years in jail and the prosecution has failed to show that the trial will conclude in the near future.
Directing Dar’s release on a personal bond of Rs 50,000 with two sureties of equal amount, the court imposed strict conditions, restraining him from approaching, contacting, or influencing the victim and her family, barring him from leaving Jammu and Kashmir without prior court sanction, and directing his appearance on every scheduled trial date. (KDC)
