Sheikh Sameer Sheikh Shabbir v. State Of Maharashtra Through Pso Ps Amdapur
2026:BHC-NAG:2266-DB 1 10.APL.2068-2025.JUDGMENT.odt
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. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
2 10.APL.2068-2025.JUDGMENT.odt 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 Xth 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
6 10.APL.2068-2025.JUDGMENT.odt 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 publicspirited 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.
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 8th 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.
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."
15 10.APL.2068-2025.JUDGMENT.odt 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 following order.
O R D E R
i.
Criminal Application is rejected.
19.
Pending application/s, if any, shall stand disposed of accordingly.
(URMILA JOSHI PHALKE, J.) Signed by: Mr.S.D.Bhimte Designation: PA To Honourable Judge Date: 11/02/2026 10:57:48 S.D.Bhimte