J&K High Court Grants Anticipatory Bail Under POCSO After Prosecutrix Marries Accused, Recants FIR

The prosecutrix told a Magistrate she filed the FIR under police pressure, had since attained majority, and married the petitioner; the High Court allowed bail despite the statutory bar under Section 482(4) BNSS.

The High Court of Jammu & Kashmir and Ladakh at Jammu granted anticipatory bail on 18 May 2026 to Rakesh Kumar, a serving Indian Army soldier, in a case registered under the Protection of Children from Sexual Offences Act, 2012 and the Bharatiya Nyaya Sanhita, 2023. Justice Rajesh Sekhri, sitting singly, allowed the application under Section 482 BNSS after the prosecutrix, respondent No. 2, recorded a statement before the Chief Judicial Magistrate, Kathua, stating that she had lodged the FIR under the influence of police officials and her relatives, that she had since attained the age of majority, and that she had married the petitioner. The trial court had earlier refused bail, citing the bar in Section 482(4) BNSS. The High Court took a different view given the prosecutrix's unequivocal position before the Magistrate.

The FIR and the Charges

On 27 October 2025, respondent No. 2 lodged a written complaint with Women Police Station, Kathua, alleging that Rakesh Kumar, who is serving in the Indian Army, had visited her house repeatedly and hypnotised her for sexual favours. She alleged that she was a minor at the time and that the petitioner had misused her over three years to fulfil his sexual lust. The complaint further alleged that he showed her pornographic videos on his mobile phone to instigate her into a sexual relationship, threatened her with dire consequences if she disclosed the incidents, and threatened to post her nude photographs on Facebook, WhatsApp, and other social media platforms to defame her.

The complaint also named the petitioner's brother, alleging that he would call the prosecutrix, solicit sexual favours by offering money, and use filthy abuses when she refused. On the basis of this written report, FIR No. 0018/2025 was registered at Police Station, Kathua, under Sections 4, 6, 12, and 15 of the POCSO Act, 2012, and Sections 64, 65, 75, 351, and 352 of the BNS, 2023.

The Prosecutrix's Turnaround During Investigation

During the investigation itself, the prosecutrix moved an application before the SSP, Kathua, seeking re-recording of her statement. In that application she averred that her earlier statement was not based on true and correct facts and that she had been influenced and pressurised by police officials to make statements against the petitioner.

She also filed an application accompanied by an affidavit before the Sessions Judge, Kathua stating that she had been ill-advised, tutored, and influenced by police officials because, at the relevant time, she only wanted to marry the petitioner. She added that she had since attained the age of majority and wished to marry the petitioner without further delay.

Her statement was subsequently recorded before the Chief Judicial Magistrate, Kathua. Before the Magistrate she deposed that she had been in love with the petitioner for three years. She explained that when the petitioner stopped answering her calls for about a month, she feared he had cheated her, panicked, and was thereafter ill-advised and influenced by her relatives and police officials from Himachal Pradesh to lodge the FIR. She stated that she had now attained the age of majority, had married the petitioner, and did not want any legal action against him. She also disclosed that she and the petitioner had jointly filed a petition in the High Court for quashment of the FIR.

The Trial Court's Refusal and the Statutory Bar

The petitioner applied for anticipatory bail before the Sessions Judge, Kathua. The trial court declined the application, primarily on account of the bar contained in Section 482(4) of the BNSS. That provision restricts the grant of anticipatory bail in cases involving certain serious offences, including those under the POCSO Act. The petitioner challenged this refusal before the High Court, contending that since the prosecutrix had attained the age of majority, had married him, and had clearly deposed before the Magisterial Court that she had lodged the FIR under the influence of police officials and her relatives, no offence was made out against him.

The State, represented by Government Advocate Mr. Suneel Malhotra, opposed the application on two grounds: the gravity of the charges and the bar under Section 482(4) BNSS. The prosecutrix, represented by Mr. Abhishek Gupta, raised no objection to the grant of bail.

How the High Court Reasoned

Justice Sekhri identified the admitted position on record as determinative. The prosecutrix had, in her statement before the Magistrate, clearly stated that she was in love with the petitioner, that she had lodged the FIR on the advice of police officials and her relatives, and that she had since married the petitioner and wished to live with him.

The court treated the prosecutrix's own unambiguous statement recorded before a judicial officer as the central fact. Her declaration that she had no objection to the grant of bail, combined with her account of how the FIR came to be filed, formed the basis on which the High Court departed from the trial court's approach. The court did not elaborate on the interplay between Section 482(4) BNSS and the prosecutrix's position, but the grant of bail in the face of the statutory bar reflects the weight the court placed on her Magisterial statement and her express consent to bail.

Outcome

Justice Rajesh Sekhri allowed Bail Application No. 377/2025 and directed that Rakesh Kumar be released on bail in the event of his arrest. The bail was made subject to the following conditions:

• He shall not jump bail, tamper with prosecution evidence, or threaten prosecution witnesses.
• He shall not leave the territorial jurisdiction of the Union Territory of Jammu & Kashmir without prior permission of the trial court.
• He shall regularly appear before the trial court.

The surety bond was fixed at Rs. 25,000 and a personal recognizance bond of the same amount, both to the satisfaction of the trial court. The application was disposed of on 18 May 2026.