Bombay High Court: In a case where the applicant, accused of raping two minor boys, sought regular bail in connection with an FIR under Sections 377 and 506(II) read with Section 34 of the Penal Code, 1860 (‘IPC’), and under Sections 3, 4, 5(g), 6, 7, 8, 9(g), 10, 11(ii), 12, 13, 14, 15 and 16 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), and Section 67-B of the Information Technology Act, 2000 (‘IT Act’), a Single Judge Bench of Madhav J. Jamdar, J., held that the applicant could not be granted bail due to his active involvement in the serious and heinous crime of raping minors with sufficient material-on-record to establish a prima facie case against him.
Background:
Two minor boys, (‘A’ and ‘B’), aged 12 and 14 years, were allegedly gang raped by the applicant and other accused. An FIR was lodged by A’s father wherein he stated that on 22-12-2021, around 01:00 a.m., police came to his house and showed him a video in which the applicant along with other accused, had forcibly detained his son in a room and had unnatural sex with him.
A in his statement narrated that he was going to a shop when he was called in the house of an accused and B was already present there. B was beaten and was asked to sexually assault A, and later, A was gang raped. He was then given some money and threatened not to tell anyone about it. Similarly, B stated that he went to that house and was there when A was called in the house. He was forced to assault A and further revealed that A was gang raped.
The applicant’s counsel contended that the applicant was merely present when the incident took place and he did not play any role in the incident. He further submitted that the applicant was arrested on 22-12-2021 and till date there was no progress in the trial and demanded bail on the ground of long incarceration.
The respondents’ counsel strongly opposed the bail application and submitted that the material-on-record showed that the applicant had played a major role in the commission of crime and as the offence was very serious and heinous, he should not be enlarged on bail. It was further submitted that as the victims, other witnesses and the accused were staying in the same vicinity, there was a very high possibility of the accused pressurizing the witnesses.
Analysis and Decision:
The Court noted that this was the second bail application and the first was allowed to be withdrawn vide order dated 11-03-2024, where it was specifically observed that since this Court was not inclined to grant bail, the applicant had withdrawn his application. Thus, in effect the first bail application was dismissed on merits with the liberty to file a fresh application after one year if there was no substantial progress in the trial.
The Court observed that the evidence on record showed that the applicant forcibly brought the minor victims to the place where the incident took place. He threatened the victims and forced them to remove their clothes, compelled the victims to do the act and physically restrained them, thus, establishing his active participation in the incident in question. The Court opined that the offence was very serious and heinous, where victims-boys aged 12 and 14 years were sexually assaulted and subjected to gang rape. The medical report supported the prosecution case and the incident was also video graphed which showed that the applicant was involved in the crime. This was a serious case where three accused had sexually assaulted the minor boys. The Court pointed out that though there was no progress in the trial and even the charge was also not framed and the applicant was incarcerated since 22-12-2021, however, the material-on-record, prima facie, showed the applicant’s involvement in the crime.
As far as long incarceration is concerned, Section 436A of Code of Criminal Procedure, 1973 provides that if the undertrial prisoner has completed one-half of the maximum period of imprisonment specified for such offence, then he shall be released on bail. The Court cited Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98, where the right to speedy trial was declared a fundamental right of an undertrial prisoner and a part of right to life guaranteed under Article 21 of the Constitution and observed that Section 436A of the Criminal Procedure Code, 1973 (‘CrPC’), was enacted to ensure the protection of the said fundamental right of the undertrial prisoner.
However, the Court referred to Vijay Madanlal Choudhary v. Union of India, (2023) 12 SCC 1, and observed that as the offence was very serious and heinous and there was likelihood of the applicant pressurising the witnesses and as the minimum punishment which could be imposed on the applicant, if convicted, was 20 years, no case was made out for the grant of benefit under Section 436A CrPC.
The Court relied on Allahabad High Court Bar Assn. v. State of U.P., (2024) 6 SCC 267, where the Supreme Court had stated that in exceptional circumstances, directions can be issued for time bound disposal of the case, and consequently, issued the directions to the Trial Court to expedite the trial and to make an endeavour to conclude it within a period of one year.
Further, the Court held that no case was made out for the grant of bail on merits and dismissed the applicant’s bail application.
[Nilesh Suryakant Netake v. State of Maharashtra, 2025 SCC OnLine Bom 2835, decided on 05-08-2025]
Advocates who appeared in this case:
For the Applicant: Chaitanya Purankar.
For the Respondents: D. J. Haldankar, APP, Shanice Mansukhani.
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