Introduction:

The Jammu and Kashmir and Ladakh High Court, in a significant order concerning anticipatory bail under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), granted pre-arrest bail to an Army personnel accused of sexual offences after the prosecutrix stated before the Magistrate that she had been in a consensual relationship with the petitioner, had subsequently married him after attaining majority, and no longer wished to pursue criminal proceedings against him. The decision came in the case titled Rakesh Kumar v. Union Territory of Jammu & Kashmir and Another, reported as 2026 LiveLaw (JKL), and was delivered by Justice Rajesh Sekhri.

The matter arose from an FIR registered at Women Police Station, Kathua, invoking serious allegations under Sections 4, 6, 12 and 15 of the POCSO Act along with Sections 64, 65, 75, 351 and 352 of the Bharatiya Nyaya Sanhita (BNS). The allegations initially levelled against the petitioner were grave in nature and included accusations of repeated sexual relations, showing pornographic material, intimidation, and threats to circulate private photographs on social media. The FIR also implicated the petitioner’s brother for allegedly demanding sexual favours from the complainant.

The petitioner, Rakesh Kumar, who serves in the Indian Army and resides in Basantpur, Kathua, approached the High Court under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking protection from arrest after the trial court declined anticipatory bail. The Sessions Court had primarily refused relief on the ground of the statutory restrictions applicable to anticipatory bail in serious offences, particularly those involving allegations under the POCSO Act.

However, during the course of investigation and subsequent judicial proceedings, the prosecutrix altered her stand materially. She submitted an application before the Senior Superintendent of Police, Kathua, asserting that the allegations contained in the FIR were not entirely truthful and that she had lodged the complaint under pressure and influence exerted by police officials and family members. She further informed the authorities that she was in a consensual romantic relationship with the petitioner for approximately three years and desired to marry him.

The matter acquired additional complexity when the prosecutrix, after attaining majority, filed an affidavit before the Sessions Court indicating her intention to marry the petitioner. Subsequently, her statement was recorded before the Chief Judicial Magistrate, Kathua, wherein she unequivocally stated that she had married the petitioner and wished to reside with him. She further clarified that she did not desire any criminal action against him.

The case presented the High Court with a difficult legal balance between the seriousness of allegations under the POCSO Act, which is a special statute enacted for the protection of children from sexual offences, and the subsequent conduct and statements of the prosecutrix indicating consent, emotional attachment, and marital relationship with the accused after attaining majority. The Court was therefore required to examine whether the circumstances justified the grant of anticipatory bail despite the statutory rigour generally associated with offences under the POCSO Act.

The judgment is important not merely because bail was granted in a sensitive criminal case, but also because it highlights how courts evaluate evolving factual circumstances, the autonomy of the prosecutrix, and the principles governing anticipatory bail while dealing with offences involving allegations of sexual exploitation. The order further reflects judicial caution in balancing the rights of the accused with the object of protective legislation such as the POCSO Act.

Arguments of the Parties:

The petitioner contended before the High Court that the FIR had been lodged under circumstances that did not disclose a case warranting custodial interrogation, especially in light of the prosecutrix’s subsequent statements before the authorities and the Magistrate. It was argued that the relationship between the petitioner and the prosecutrix was consensual in nature and had continued for nearly three years. According to the petitioner, the allegations contained in the FIR were the result of emotional misunderstanding and external influence exerted upon the prosecutrix by her relatives and certain police officials.

Counsel appearing for the petitioner emphasized that the prosecutrix herself had approached the authorities and submitted that the FIR was not based entirely on true facts. It was argued that she had specifically stated that she lodged the complaint after being influenced and pressured by family members and police personnel. The petitioner further relied upon the prosecutrix’s affidavit before the Sessions Court and her statement before the Chief Judicial Magistrate, Kathua, wherein she expressly stated that she had married the petitioner after attaining majority and intended to continue residing with him as his wife.

The petitioner also highlighted that the prosecutrix had no objection to the grant of anticipatory bail. It was submitted that when the alleged victim herself had disowned the allegations to a substantial extent and had affirmed her marital relationship with the petitioner, the continued threat of arrest would amount to misuse of criminal process. The defense argued that the petitioner was serving in the Indian Army, had a stable background, and was unlikely to abscond or tamper with evidence.

Another significant contention raised by the petitioner was that custodial interrogation was unnecessary because the material facts had already emerged during investigation and the prosecutrix’s judicial statement had substantially altered the prosecution narrative. The petitioner submitted that bail jurisprudence under Indian criminal law is founded on the principle that deprivation of liberty must be justified by compelling necessity, especially when the accused is willing to cooperate with the investigation and trial.

The petitioner further argued that anticipatory bail is not barred absolutely even in serious offences and that courts are empowered to examine the peculiar facts and circumstances of each case. Reliance was placed on the settled legal principle that while considering anticipatory bail, courts must evaluate factors such as the nature of allegations, possibility of misuse of liberty, risk of absconding, and overall interests of justice.

On the other hand, the Union Territory of Jammu & Kashmir opposed the grant of anticipatory bail, primarily relying on the seriousness of allegations contained in the FIR. The prosecution argued that the offences invoked against the petitioner included grave provisions under the POCSO Act and the Bharatiya Nyaya Sanhita involving allegations of sexual exploitation, intimidation, and threats. According to the State, the seriousness of the accusations required a cautious approach while considering pre-arrest bail.

The prosecution further submitted that the FIR disclosed repeated acts of sexual relations over an extended period and allegations involving pornographic content and threats to circulate private photographs. It was argued that such allegations could not be lightly brushed aside merely because the prosecutrix subsequently altered her version.

The State also relied upon the statutory intent behind the POCSO Act, which is designed to protect minors from sexual abuse and exploitation. It was contended that offences under the Act are viewed seriously by courts because consent of a minor is legally immaterial under the statutory framework. Therefore, even if the prosecutrix later stated that the relationship was consensual, the legal implications arising from allegations concerning the period when she was allegedly below eighteen years of age could not be ignored.

Another argument advanced by the prosecution concerned the restrictions governing anticipatory bail in cases involving serious offences. It was submitted that the Sessions Court had rightly declined relief in view of Section 482(4) BNSS, and that the High Court should exercise caution before interfering with such orders.

At the same time, counsel appearing for respondent No. 2, namely the prosecutrix, informed the Court that she had no objection to the grant of anticipatory bail to the petitioner. Her counsel reiterated that she had voluntarily married the petitioner after attaining majority and did not wish to continue criminal proceedings against him. It was also pointed out that her statement before the Magistrate was voluntary and reflected her genuine intention to reside with the petitioner.

The prosecutrix maintained that the FIR had been lodged during a period of emotional distress and misunderstanding after the petitioner allegedly stopped communicating with her for some time. According to her statement, she feared that she had been deceived, which led to the complaint being lodged under the influence of relatives and police officials.

Thus, the High Court was confronted with a situation where the prosecutrix herself was not supporting continuation of coercive proceedings against the accused, while the State continued to rely on the seriousness of the statutory offences alleged in the FIR.

Court’s Judgment:

Justice Rajesh Sekhri, after examining the record and the statement of the prosecutrix, granted anticipatory bail to the petitioner and extended protection from arrest subject to certain conditions. The Court’s reasoning was significantly influenced by the subsequent developments during investigation and the prosecutrix’s categorical statements before judicial authorities.

At the outset, the Court took note of the prosecutrix’s statement recorded before the Chief Judicial Magistrate, Kathua. The Court observed that she had unequivocally stated that she was in love with the petitioner for nearly three years and had lodged the FIR after being influenced by relatives and police officials. The Court further noted that she had clarified before the Magistrate that she was now married to the petitioner and desired to reside with him peacefully.

The High Court considered these admissions to be crucial circumstances while assessing the prayer for anticipatory bail. Justice Sekhri observed that the prosecutrix herself had admitted that her complaint stemmed partly from emotional apprehension after the petitioner stopped responding to her calls for about a month, leading her to believe that she had been cheated. The Court specifically recorded the prosecutrix’s statement that she had voluntarily entered into marriage with the petitioner after attaining majority.

The Court placed substantial emphasis on the prosecutrix’s express statement that she did not wish to pursue legal action against the petitioner. In bail jurisprudence, particularly in cases involving personal relationships and evolving factual circumstances, courts often examine whether continued custodial proceedings serve any meaningful purpose. The High Court found that in the peculiar facts of the case, custodial interrogation did not appear necessary.

While the Court remained conscious of the seriousness of allegations under the POCSO Act, it also recognized that anticipatory bail proceedings are not intended to determine guilt or innocence conclusively. The purpose of such proceedings is limited to examining whether the accused deserves protection from unnecessary arrest pending investigation and trial.

The High Court further observed that the prosecutrix’s statement before the Magistrate carried considerable evidentiary value at the stage of bail because it represented her voluntary version recorded before a judicial authority. Her consistent stand regarding the consensual nature of the relationship, subsequent marriage, and absence of objection to bail persuaded the Court that the petitioner deserved the discretionary relief of anticipatory bail.

Justice Sekhri also considered the fact that the petitioner was serving in the Indian Army and there was no material before the Court suggesting that he would abscond, evade investigation, or misuse liberty if granted protection from arrest. The Court did not find any immediate necessity for custodial interrogation in the facts and circumstances presented.

Importantly, the Court balanced the grant of bail with conditions intended to safeguard the integrity of investigation and trial. The petitioner was directed not to tamper with prosecution evidence or threaten witnesses. He was further restrained from leaving the territorial jurisdiction of the Union Territory of Jammu and Kashmir without prior permission of the trial court. Additionally, he was directed to appear regularly before the trial court whenever required.

The Court ultimately concluded that the admitted factual position emerging from the prosecutrix’s own statements justified exercise of discretionary jurisdiction in favour of the petitioner. Accordingly, the High Court allowed the application and directed that in the event of arrest, the petitioner be released on bail upon furnishing a personal bond and surety bond of ₹25,000 each to the satisfaction of the trial court.

The judgment reflects the nuanced approach adopted by constitutional courts while dealing with anticipatory bail in sensitive criminal cases. While the POCSO Act embodies a strong legislative policy for protection of minors, the Court demonstrated that bail decisions must still be guided by the totality of circumstances, including the prosecutrix’s own statements, subsequent conduct, and the requirements of justice.

The ruling does not amount to an adjudication on the merits of allegations, nor does it dilute the seriousness attached to offences under the POCSO Act. Instead, it reiterates that anticipatory bail jurisprudence requires courts to carefully balance statutory objectives with constitutional protections relating to personal liberty and fair procedure.