REDACTED vs UNION TERRITORY OF J AND K AND OTHERS (HOME / POLICE)

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR


CRM(M) No. 783/2026


Reserved on: 06.10.2026
Pronounced on: 28.10.2026

Uploaded on: 28.10.2026
Whether the operative part or full
judgment is pronounced: Full

XXXX
(Name withheld)

…Petitioner(s)/Appellant(s)
Through: Ms. Zarin Ali, Adv.
Vs.

Union Territory of JK & Ors.
...Respondent(s)
Mr. Numan Idrees Malik, GA
Through:
CORAM:
HON’BLE MR. JUSTICE YASH PAUL BOURNEY, JUDGE

JUDGMENT

1. The petitioner, who happens to be a minor and victim of rape, through
this petition has herself questioned the legal process and has invoked
the inherent jurisdiction of this court under Section 528 of BNSS for
quashing the Charge-sheet filed against her alleged tormentor in
furtherance to the FIR No. 72/2025 registered at Police Station
Shalteng under Section 64 of the BNS-2023 and Sections 3 read with
Section 4 of the Protection of Children from Sexual Offences Act,
2012 (“POCSO Act-2012”) which is pending trial before the learned
Special Judge, POCSO Court, Srinagar.
2. The factual matrix as revealed from the record and necessary for
adjudication of the controversy is to the effect that on October 05,
2025 SHO Police Station Shalteng received a zero FIR from Police

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Station, Pattan through email for necessary action. The said FIR was
registered on the basis of telephonic information received from Dr.
Mohammad Ashraf Bhat of Sub District Hospital, Pattan through Cell
No. 7006946665 that a minor girl xxxx (name withheld) had delivered
a female baby in the maternity ward of Hospital and she was
accompanied by her mother and one Mohd Rafiq Sofi, who later on
turned out to be the perpetrator of the alleged offence(s) and was
arrayed as an accused.
3. On receipt of the said information, FIR No. 72/2025 for offences
under Section 64 BNS, and Section 3/4 of POCSO Act came to be
registered and investigation was commenced. During the course of
investigation, statements of the victim, her parents and other material
witness were recorded. Accused was apprehended and arrested in due
course on 7th of October 2025. The DNA samples of the victim, the
new born and accused were collected and forwarded to the FSL for
profiling/comparison. A positive report was received in due course
confirming that accused is the biological father of the newborn baby.
The investigation further revealed that age of the victim at the time of
delivery was 16 years, 3 months and 11 days. The medical
examination of the accused also confirmed that he was potent and
capable of performing sexual intercourse. It further came to fore that
accused happened to be a distant relative of the victim who used to
visit her house and frequently and at times had night stays also. It was
during the course of those visits that he got access to and developed
physical intimacy with the victim and committed sexual intercourse

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with her repeatedly as a result of which she became pregnant and
delivered the baby in due course.
4. Upon completion of the investigation, a Charge-sheet was laid before
the competent court on 3rd December, 2025. The xerox copies of the
records of court file of Charge-sheet together with the statements/
materials collected during the course of investigation has also been
received. A perusal thereof would reveal that charges against the
accused have been framed on 28th September 2026 only and victim is
yet to depose as witness.
5. It has been argued by the learned counsel for the petitioner that
petitioner-victim has been agitating right from the outset that she
happens to be the legally wedded wife of the accused-respondent and
st
their customary Nikah was performed on 21 September, 2024 in
accordance with Muslim Personal Law however, ‘Rukhsati’ ceremony
had not happened. A copy of the Nikah-nama is also placed on record
and made part of the petition. It is stated that both the petitioner and
respondent accused fell in love and eventually went on to develop
physical intimacy which was purely consensual resulting into
pregnancy. That accused accompanied the petitioner and her mother
when she was taken to the hospital for delivery. That relationship
being squarely consensual, there was no question of use of any force
or deceit by the accused/respondent, so, as to meet the necessary
ingredients of the offence as alleged in the Charge-sheet. It is also
submitted that both of them are still madly in love and want to lead a
happy and peaceful married life, however, the continued incarceration

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of her husband is coming in their way since there is a difference of
few years in her actual age and the age recorded in the school
admission records which has resulted into the whole confusion.
6. It is argued that when petitioner who happens to be the star witness of
the prosecution is herself denying repeatedly any forceful sexual
assault on her person, there is hardly any possibility of the trial
resulting into conviction. Therefore, it would be entirely an exercise
in futility and wastage of the precious time of the court to proceed on
with the trial of the accused. In these circumstances, the charge sheet
is sought to be quashed.
7. Mr. Numan Idrees Malik, learned counsel for the respondent-State has
vehemently opposed this petition on the grounds that petitioner has no
locus to maintain this petition by invoking the extraordinary
jurisdiction and that petition involves disputed questions of facts and
law which cannot be gone into in exercise of the extraordinary
jurisdiction by the court. It is further argued that victim who happens
to be a minor has been subjected to sexual intercourse by the accused
respondent and being minor her consent was immaterial no matter
whatever she is saying now owing to her precarious position. She has
after thoughts and the whole exercise is meant to save the accused
from the consequences of the crime for which he has been charge
sheeted. The trial is also at nascent stage and there is no occasion to
exercise the extraordinary jurisdiction in the given circumstances.
8. I have considered the submissions made at bar and have also gone
through the record of the Charge Sheet submitted by the trial court.

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9. It needs to be flagged at the very outset that initial report with police
is not lodged by the victim or her parents/relatives and the accused in
the charge sheet was accompanying by the side of the victim when
she was taken to the maternity hospital for delivery. The victim in her
statement to the Magistrate under Section 164 CrPC has not been able
to tell her exact date of birth but has narrated that she is 18+ as per the
Vaccination Card but was 16 years of age as per her Adhaar Card. She
further narrated that her nikah with the accused was solemnized on
th
20 October 2024 with the consent of her parents but she does not
send to her matrimonial home instantly and afterwards some dispute
arose between the two parties, so her parents were not agreeing to
send her and wanted to marry her with someone else. However, she
left her matrimonial home in January 2025 on her own. Thereafter she
started living with her husband and eventually became pregnant. But
when she was taken to the Sub-District Hospital Anantnag for
delivery, Police was called by the doctors who frisked away her
husband. That she wanted to lead a life with her husband since they
were having a baby also, so her husband may be released. Her mother
and father have also made depositions to the same effect. So clearly, it
is a case of victim and accused having fallen in love and eventually
solemnized Nikah even though she happened to be minor at that time.
They have gone further to live together as husband and wife resulting
into pregnancy of the victim and the delivery of the child in due
course for which nobody is having any grievance. Since neither the
victim nor her parents have ever come forward to complain of the
sexual exploitation of the victim. It is only when the victim was taken

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to the hospital for delivery by her mother and the accused that doctor
concerned informed the police on finding the girl to be minor.
Although she herself has disputed her age yet this vital aspect has not
been investigated in detail.
10. The cases of young couples having indulged in physical intimacy and
the female partner being eventually found short of age of majority
while as the male partner having landed in the dragnet of law on are
not uncommon ever since the enactment of the POCSO Act, 2012.
One of the much-avowed objects of the enactment has been to protect
the children from sexual abuse and exploitation. This provision,
though definitely intended to target sexual exploitation of children,
however, has created a grey area as it has definitely resulted in
criminalizing consensual adolescence/teenage relationship and after
the POCSO Act raised the age of consent from 16 to 18. An act of
sexual indulgence with a girl below 18 years, would attract the rigors
of the POCSO Act as well as the offence under Section 376 of IPC
even in case of a consensual sexual activity since law presumes that a
girl below 18 years is incapable of consenting to sexual intercourse. In
such a scenario, even if a girl below 18 consented to a sexual
intercourse, her consent has to be ignored and the other party shall be
guilty of committing an offence under the POCSO Act.
11. It is often contended by the stringent provisions of POCSO Act
operate too harshly against the male partners who have just crossed-
over the age bar notwithstanding the fact that a female partner was an
equal partner to the sexual intimacy when the relationship was simply

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consensual. Confronted with such situations, Hon'ble Supreme Court
has time and again emphasized that criminal courts must not ignore
the social realities and the judicial processes must support the survival
and protection of the families rather than mechanical punitive actions
since the future of a family is at stake especially when the parties wish
to live peacefully. Confronted with the situation, Hon'ble Supreme
Court has gone to the extent of proposing an amendment in the
POCSO Act and to introduce a Romeo-Juliet clause in order to carve
out an exception for the young love-birds from falling in trap of the
stringent provisions of the Act.
12. In State of UP vs. Anurudh & Anr. (Petition for Special Leave to
Appeal (Crl) No. 10656 of 2025) reported at 2026 INSC 47 Hon'ble
Supreme Court approved the High Court’s view in Satish alias
Chand vs. State of UP (Crl. Misc. Bail Appl. No. 18596 of 2024) to
the effect that four factors are crucial for the Courts to consider in
deciding a prosecution under the POCSO Act had held:
"A. Assess the Context: Each case should be evaluated on its
individual facts and circumstances. The nature of the
relationship and the intentions of both parties should be
carefully examined.
B. Consider Victim's Statement: The statement of the alleged
victim should be given due consideration. If the relationship
is consensual and based on mutual affection, this should be
factored into decisions regarding bail and prosecution.
C. Avoid Perversity of Justice: Ignoring the consensual nature
of a relationship can lead to unjust outcomes, such as
wrongful imprisonment. The judicial system should aim to
balance the protection of minors with the recognition of their
autonomy in certain contexts. Here the age comes out to be an
important factor.
D. Judicial Discretion: Courts should use their discretion
wisely, ensuring that the application of POCSO does not
inadvertently harm the very individuals it is meant to protect."

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Hon'ble Supreme Court went further by calling upon the Secretary,
Law, Government of India to consider introduction of a Romeo-Juliet
Clause exempting genuine adolescent relationship from the
stronghold of the POCSO Act.
13. Confronted with a similar situation, Hon'ble High Court of Calcutta,
Circuit Bench at Port Blair in Roshan Lakra vs. The State and Anr.
th
(CRA No 4/2024) wherein a minor student of 7 standard entered into
physical relationship and eventually became pregnant and later on
delivered a female baby at the hospital. On attaining the age of
majority, she married to the petitioner (accused) and became pregnant
again. Faced with the situation, the Hon'ble Court came to hold as
under:
32. The question then is, what should we do? Should we
dismiss these appeals knowing that same would almost
certainly result in rapid disintegration of Roshan's family
leading to the family's annihilation? Or, should we take a
view within the four corners of law that would terminate the
prosecution once and for all enabling Roshan to be with his
family and nurture the family as its paterfamilias.
33. I have no doubt in my mind that we should adopt the
second course of action. Indeed, upholding the conviction in
the facts of the present case, would bring the justice delivery
system into shame, odium and contempt.
34. Article 21 of the Constitution of India provides that no
person shall be deprived of his life or personal liberty except
according to the procedure established by law. Article 21 has
been interpreted by the Hon'ble Supreme Court in a vast
number of cases, as encompassing a wide variety of rights. It
has been held that one such right is the right to marry or
choose a life partner. It was held in Shafin Jahan v. Asokan

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K.M. and Ors. reported at (2018) 16 SCC 368: AIR 2018 SC
1933 that right to marry a person of one's choice is an integral
aspect of Article 21 i.e., protection of life and personal liberty.
In Lata Singh v. State of U. P. & Anr., reported at (2006) 5
SCC 475: AIR 2006 SC 2522, Hon'ble Supreme Court
recognised the right to marry as a part of right to life under
Article 21 of the Constitution of India. The right to live a
happy and healthy married life is therefore a citizen's
fundamental right. Anjali has highlighted this right of her in
the petitions that she has filed in connection with these
appeals. Rohan also has the same right. It cannot be gainsaid
that Article 21 would override any other provision of law if
there is a conflict between the two. For example, it is now
well established that notwithstanding the restriction in Section
37 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (NDPS Act), bail can be granted to an under-trial
charged with an offence under the NDPS Act, on the touch
stone of Article 21, if he is detained in custody for an
inordinately long period of time without the trial coming to an
end. Similarly, Article 21 overrides the restriction on grant of
bail in Section 43D (5) of the Unlawful Activities
(Prevention) Act, 1967.
14. Section 528 of BNSS, which is pari materia of Section 482 of the
CrPC 1973, saves the inherent powers of this Court to make such
orders as may be necessary to give effect to any order of this Court or
to prevent abuse of the process of any court or otherwise to secure the
ends of justice. This Section has been given overriding effect to act ex
debitio justitae to do real and substantial justice for the administration
of which alone it exists, or to prevent abuse of the process of the
Court. The observations of the Hon'ble Apex Court in the case of
Ram Gopal & Anr. vs. State of Madhya Pradesh reported at (2022)
14 SCC 531 are worth noting and the relevant para reads as
hereunder:

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"11. True it is that offences which are "non-compoundable"
cannot be compounded by a criminal court in purported
exercise of its powers under Section 320 CrPC. Any such
attempt by the court would amount to alteration, addition and
modification of Section 320 CrPC, which is the exclusive
domain of legislature. There is no patent or latent ambiguity
in the language of Section 320 CrPC, which may justify its
wider interpretation and include such offences in the docket
of "compoundable" offences which have been consciously
kept out as non-compoundable. Nevertheless, the limited
jurisdiction to compound an offence within the framework of
Section 320 CrPC is not an embargo against invoking
inherent powers by the High Court vested in it under Section
482 CrPC. The High Court, keeping in view the peculiar facts
and circumstances of a case and for justifiable reasons can
press Section 482 CrPC in aid to prevent abuse of the process
of any court and/or to secure the ends of justice.
12. The High Court, therefore, having regard to the nature of
the offence and the fact that parties have amicably settled their
dispute and the victim has willingly consented to the
nullification of criminal proceedings, can quash such
proceedings in exercise of its inherent powers under Section
482 CrPC, even if the offences are non-compoundable. The
High Court can indubitably evaluate the consequential effects
of the offence beyond the body of an individual and thereafter
adopt a pragmatic approach, to ensure that the felony, even if
goes unpunished, does not tinker with or paralyse the very
object of the administration of criminal justice system.”

15. Considered in the backdrop of the above discussion, the
prosecutrix in the present case was hardly sixteen years of age
when she got involved into physical relationship with the accused
both of them having been in romantic relationship, still she being
falling within the definition of a ‘child’ under POCSO Act, the
sexual intercourse with her would attract the offence under the

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POCSO Act since she has not attained the age of consent.
Therefore, accused can’t escape from the consequences of his
errant behaviour when he was fully aware of the age of petitioner.
The case set up by the petitioner victim that both of them are
madly in love and have already entered into Nikah. She has further
contended that she has already moved to and is presently staying
in her matrimonial home. She has claimed that her parents were
well aware and they neither objected to their relationship and nor
complained to anybody about their relationship. Even if all these
factors are taken together still the offence for which accused has
been charge sheet does not get wipe out. All these factors can at
the best be described as the mitigating factors entitling the accused
to bail, but cannot be reason to quash the charge sheet. Lastly, the
victim is a minor and she has herself come up with this petition
without being represented by a guardian and as such was not
competent to and couldn’t have invoked the extraordinary
jurisdiction of this Court.
16. Thus, having carefully considered the submissions made at bar,
this Court finds no merit in this petition.
17. This petition, therefore, fails and is dismissed.

(YASH PAUL BOURNEY)
JUDGE
SRINAGAR:
28.10.2026
Altaf



Whether approved for reporting? Yes/No

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