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Bombay High Court

Sheikh Sameer Sheikh Shabbir vs State Of Maharashtra Through Pso Ps ... on 10 February, 2026

2026:BHC-NAG:2266-DB

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                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 NAGPUR BENCH : NAGPUR

                       CRIMINAL APPLICATION (APL) NO. 2068 OF 2025

                  1. Sheikh Sameer Sheikh Shabbir,
                     Age: 25 years, Occ: Labour,

                  2. Sheikh Shabbir Sheikh Ismail,
                     Age: 55 years, Occ: Agriculture,

                  3. Sheikh Ashabi Sheikh Shabbir,
                     Age: 50 years, Occ: Household,
                     All R/o Karavand, Tah. Chikhli,
                     Amdapur, District Buldhana.
                  4. Sheikh Majid Sheikh Ghafoor,
                     Age: 45 years, Occ: Agriculture,

                  5. Sheikh Najmabi Sheikh Majid,
                     Age: 40 years, Occ: Household,
                     Both R/o Udainagar, Tah. Chikhli,
                     Amdapur, District Buldhana.       APPLICANTS
                        Versus
                  1. State of Maharashtra,
                     Through PSO PS Amdapur Police
                     Station, District: Buldhana.

                  2. XYZ.
                     Crime No. 141/2024
                     PS Amdapur Police Station,
                     District: Buldhana.                NON-APPLICANTS

                -----------------------------------------------
                Mr. M.N. Ali, Advocate for the Applicants.
                Mr. A.M. Joshi, APP for the Non-applicant No.1/State.
                -----------------------------------------------
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                  CORAM : URMILA JOSHI PHALKE, J.

                  DATED      : 10th FEBRUARY, 2026.
ORAL JUDGMENT :-

1. Heard.

2. ADMIT. Heard finally by the consent of learned

Counsel for the Applicants and learned APP for the

Non-applicant No.1/State.

3. The present Application is preferred by the

Applicants under Section 528 of the Bharatiya Nagarik Suraksha

Sanhita (BNSS), 2023 for quashing of the First Information

Report in connection with Crime No.141/2024 registered with

Police Station Amdapur, District Buldhana for the offence

punishable under Sections 376, 376(2)(N), 376(3)(N) read

with Section 34 of the Indian Penal Code (for short "IPC"),

under Sections 4(2), 6, 8 of the Protection of Children from

Sexual Offences (POCSO) Act, 2012 and under Sections 9, 10,

11 of the Prohibition of Child Marriage Act, 2006 and

consequent proceeding arising out of the same bearing Special

(POCSO)Case No. 56/2024.

3 10.APL.2068-2025.JUDGMENT.odt

4. The crime is registered on the basis of the report

lodged by the Victim herself against the present Applicants on

an allegation that she is aged about 16 years and her marriage

was performed with the present Applicant No.1 and the said

marriage was performed by her parents as well as her in-laws

with her consent and there was physical relationship between

her as well as the Applicant No.1. On the basis of the said report

Police have registered the crime against the present Applicants.

5. Heard learned Counsel for the Applicants who

submitted that, even it is considered that the Non-applicant

No.2 was minor at the time of the incident, but it is a

relationship between the two adolescents. Out of love affair, the

physical relationship was developed between them. Now, the

marriage is already performed with all understanding about the

consequences. If the proceeding is not quashed, then there is a

possibility of rift between the relationship and ultimately the

Victim would be the sufferer. The statements of the parents also

show that there was love affair between the Victim and the

present Applicant No.1 and though the girl appears to be minor,

this is a case of adolescents love affair, and therefore, no offence 4 10.APL.2068-2025.JUDGMENT.odt

is made out. In view of that, the Application deserves to be

allowed.

6. Per contra, learned APP strongly opposed the said

Application on the ground that the FIR came to be lodged on

behalf of the Victim, wherein she has stated that she is below 18

years of age and her marriage was performed out of love affair

and she was subjected for the sexual assault by the Applicant

No.1 as physical relationship was developed between them. He

submitted that, considering the age of the Victim who is minor

her consent is not relevant, and therefore, the Application

deserves to be rejected.

7. Before issuance of notice I have considered the

aspect whether the FIR can be quashed, wherein the Victim is

minor and she was subjected for physical relationship though

there was love affair between the Victim and the Applicant

No.1.

8. Before entering into the merits of the case it is

required to be referred the decision of the Hon'ble Apex Court

in the case of Right to Privacy of Adolescents, Suo Motu Writ 5 10.APL.2068-2025.JUDGMENT.odt

Petition (C) No.3 of 2023 with Criminal Appeal No.1451 of

2024, decided on 23rd May 2025, wherein the Hon'ble Apex

Court has shown concern regarding criminalization of

consensual adolescent relationships under POCSO Act. Learned

Amicus Curiae had prayed for certain directions to be given to

the Central Government to consider decriminalizing adolescent

relationships under POCSO Act and to frame a national sex

education policy and the Hon'ble Supreme Court had given

certain directions to the Central Government and asked to

consider the implementation of the suggestions of the learned

Amicus Curiae based on the report. It appears that the final

directions are already given by the Apex Court in the following

manner:

It is directed by the Apex Court that:

We direct the State to take following measures:

"i) To act as a true guardian of the victim and her child;

ii) To provide a better shelter to the victim and her family within a period of few months from today;

iii) To bear the entire expenditure of the education of the victim till Xth standard examination and if she desires to take up education for a degree course, till the completion of degree course. After she passes her X th standard examination, the State can offer her vocational training, obviously, at the cost of the State;

iv) To bear the entire expenditure of the education of the child up to Xth standard and ensuring that she is educated

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in a very good school in the vicinity of the place of residence of the victim; and

v) To endeavour to take the assistance of NGOs or public- spirited citizens for the purpose of securing the debts incurred by the victim as a one-time measure."

9. The Hon'ble Apex Court further issued notice to the

Union of India through the Secretary of the Ministry of Women

and Child Development and directed to serve the notice to the

said Secretary. It is further directed that, the Secretary of the

Ministry of Women and Child Development shall appoint a

Committee of experts to deal with the suggestions of the

learned amicus curiae. Senior officers of the State shall be a part

of the Committee. If necessary, the Committee can also consult

the learned senior counsel appointed as amicus curiae.

Immediately on service of notice, the Secretary shall constitute a

Committee. The members of the Committee constituted by this

Court shall be permanent invitees to the said Committee; and

the Committee shall submit a detailed report before the

returnable date to this Court. To consider the implementation of

the suggestions of the learned amicus curiae based on the said

report, this Court will pass further directions from

time to time.

7 10.APL.2068-2025.JUDGMENT.odt

10. It appears that, the final directions are still awaited.

The Central Government has filed its response before the Apex

Court. The stand taken by the Union of India in the reply is that

reducing the age of consent would reintroduce the very mischief

the law was enacted to prevent. The amendment in the said

enactment serves the legitimate state interest of protecting

minors from sexual exploitation and ensuring that welfare of

child is paramount and therefore, submitted that the existing

age of consent ought to be retained in order to give full effect to

the legislative intent, protect the bodily integrity of children,

and uphold the constitutional and statutory safeguards accorded

to them.

11. The Union of India further submitted that, the State

possesses a legitimate constitutional and legal interest in

prescribing and maintaining minimum age of consent, in

furtherance of its obligation to protect children for exploitation,

and such a legislative framework, is a reasonable and

proportionate exercise of its power under Articles 14, 15, 21,

39(f) of the Constitution of India. It is further stand of the State

that, the State has a legitimate interest in regulating social 8 10.APL.2068-2025.JUDGMENT.odt

practices through legislation. Law is not tailor made for

individuals but for society at large and hence, till the time the

mischief remains, the relevance of the law remains. It is further

stand of the Union of India that, reducing the age of consent

undermines the principle of fresh start and disproportionately

burdens the child victims contrary to constitutional and

statutory mandates.

12. In the background of the above proceeding which is

pending before the Hon'ble Apex Court, it would be relevant to

consider the object with which the Protection of Children from

Sexual Offences Act was introduced. The primary object of

Protection of Children from Sexual Offences (POCSO) Act are to

protect all children under 18 from sexual assault, sexual

harassment and child pornography and to provide a supportive

environment for child victims. The act ends to achieve this part

strengthening legal provisions against child sexual abuse,

mandating the reporting of offences to prevent under reporting,

establishing special Courts for speedy trials and creating the

child friendly legal process that protects the victim's identity

and mental health. The Act was introduced to protect children.

9 10.APL.2068-2025.JUDGMENT.odt

Now the question is what should be the age group to consider

that it is adolescent love or love between two adolescents and

now the said issue is pending before the Hon'ble Apex Court.

This aspect is already dealt by the Co-ordinate Bench in the case

of Aakash s/o Nanasaheb Waghmare Vs. The State of

Maharashtra and another in Criminal Application

No.2514/2024, decided on 25th June 2025 and by referring the

decision of K. Dhandapani Vs. State by the Inspector of Police,

2022 SCC Online SC 1056, observed that when the offence was

committed, the prosecutrix was aged 14 years. She gave birth to

the first child when she was 15 years and the second child was

born when she was 17 years of age. The Hon'ble Apex Court in

clear terms observed that, "In the peculiar facts and

circumstances of this case, we are of the considered view that

the conviction and sentence of the appellant who is maternal

uncle of the prosecutrix deserves to be set aside in view of the

subsequent events that have been brought to the notice of this

Court." It is observed by the coordinate Bench that there was a

full-fledged trial wherein accused was convicted by the Special

Judge, confirmed by the High Court and then the matter

reached the Hon'ble Apex Court. The entire evidence was before 10 10.APL.2068-2025.JUDGMENT.odt

the Hon'ble Apex Court when the matter was heard. Even with

directions by the Hon'ble Apex Court on 8 th March 2022, it was

directed that the District Judge should record the statement of

the prosecutrix about her present status and that subsequent

events were then considered. The powers those were exercised

in that matter by the Hon'ble Apex Court, were under Article

142 of the Constitution of India, and therefore, the said cannot

be considered while considering the present compromise or

prayer based upon the so-called compromise. The other

decisions which the applicant wants to rely on are of Co-equal

Bench and taking into consideration the facts, the powers then

exercised.

13. The Co-ordinate Bench also considered the scientific

reason for making the rule for age of marriage and observed

that despite of the prohibition the child marriages are

extensively taking place in spite of the efforts by the

Government to educate the people about the hazards of the

child marriages. The teenage pregnancy would be the second

social problem. When such child marriages take place there is a

risk of complication related to pregnancy and some may result 11 10.APL.2068-2025.JUDGMENT.odt

in death. There is also higher risk of premature births of the

children to minor mothers with other health problems. When

such social menace is there, that is also required to be

considered by this Court.

14. In the light of the above observations and the object

of the Protection of Children from Sexual Offences Act by

turning to the facts of the present case, if I consider the recitals

of the FIR, it can be seen that there was love affair between the

Victim and the Applicant No.1 and there was acceptance on

their relationship from both the families, the marriage was

performed. Though she states that the said marriage was as per

her consent but at the time of marriage, she was below 18 years

of age. When she delivered the child at the relevant time also,

she was below 18 years of age. The fact which cannot be

brushed aside is that the Applicant No.1 is 25 years of age and

at the time of incident, or alleged marriage, he has already

attained the age of majority. At least, he ought to have

understood that he should wait till the girl attains 18 years of

age. Then in spite of having knowledge that the girl is minor, he

subjected her for the sexual relationship and even if consent of 12 10.APL.2068-2025.JUDGMENT.odt

the Victim is taken into consideration it is not consent at all in

the eyes of law. Merely because now the girl has given birth to

the child, I am of the opinion that the acts of the Applicants

cannot be brushed aside

15. Learned Counsel for the Applicants though

submitted that now the issue is raised before the Apex Court as

to the adolescent relationship cases still the final directions are

not issued by the Hon'ble Apex Court. The copy of the reply

filed by Union of India which his considered by this Court in

Criminal Application (APL) No.1128/2025, wherein the stand of

the Union of India is that existing age of consent ought to be

retained in order to give full effect to the legislative intent,

protect the bodily integrity of children, and uphold the

constitutional and statutory safeguards accorded to them. The

further stand of the Union of India shows that the State

possesses a legitimate constitutional and legal interest in

prescribing and maintaining minimum age of consent, in

furtherance of its obligation to protect children from

exploitation and such a legislative framework, is a reasonable

and proportionate exercise of its power under Articles 14, 15, 13 10.APL.2068-2025.JUDGMENT.odt

21, 39(f) of the Constitution of India. It further stated that, the

law is not tailor made for individuals but for society at large and

hence, till the time the mischief remains, the relevance of the

law remains. It is further stated before the Hon'ble Apex Court

that the State has a legitimate interest in regulating social

practices through legislation. Thus, the stand taken by the

Union of India before the Apex Court is also that the reducing

the age of consent undermines the principle of fresh start and

disproportionately burdens the child victims contrary to

constitutional and statutory mandates. It is further contention of

the Union of India that the determination of 18 years as a

threshold age for majority is not arbitrary or isolated to only

child protection laws. It is consistent and well-established

statutory standards across the legal framework in India. Thus,

the stand taken by the Union of India if taken into

consideration, which shows that as per the contention of the

State, the purpose of POCSO Act is to treat the minors as a class

by itself and treat them separately so that no offence is

committed against them as regards sexual assault, sexual

harassment and sexual abuse. The said purpose is to safeguards

the interest and well being of the children at every stage of 14 10.APL.2068-2025.JUDGMENT.odt

judicial proceeding. The POCSO Act is gender neutral and

criminalizes sexual activity by those below of the age of 18.

Under the said Act, factual consent in a relationship between

minors is immaterial. The provisions contained in POCSO Act

does not in actuality prevent adolescents from engaging in

consensual sexual activity. Such activity continued to take place

and sometimes leads to consequences such as pregnancy.

16. In view of the stand taken by the Central

Government before the Hon'ble Apex Court and considering the

facts that Victim was below 18 years of age at the time of

marriage, as well as when she was subjected for the physical

relationship. Unless the things are clarified by the Central

Government upon directions of the Hon'ble Apex Court, I am

unable to consider such cases. The decision of the Hon'ble Apex

Court in Anversinh @ Kiransinh Fatesinh Zala Vs. State of

Gujarat, 2021 (3) SCC 12, wherein it has been held that:

"where a minor girl under Section 361 of IPC (under 18 years of age) is taken or enticed from the keeping of her lawful guardian without her consent, her own consent is not valid defence to the charge of kidnapping. Minors are deemed incapable of giving lawful consent and Section 361 of IPC prioritizes the guardian's right to protect the minor's physical safety. An infatuation and consensual relationship with the accused does not automatically negate the offence of kidnapping a minor."

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17. In view of the above observations, as the consent of

the minor is irrelevant and the stand taken by the Central

Government before the Hon'ble Apex Court also shows that it

would be against the mandate of the Constitution of India, as

law is not for the individuals but for society at large.

18. In the light of the above object behind the

enactment of Protection of Children from Sexual Offences Act,

at this stage I am even not inclined to consider the Application

and issue the notice to exercise the powers under Section 482 of

the Code of Criminal Procedure. In view of that, the Application

deserves to be rejected. Accordingly, I proceed to pass the