Bombay High Court
Shubham Dilip Awasarmal vs The State Of Maharashtra And Another on 14 August, 2025
2025:BHC-AUG:22183
BA 877/25
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO. 877 OF 2025
SHUBHAM DILIP AWASARMAL
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Applicant : Mr. Surse Sunil B.
APP for Respondent/State : Mr. D.J. Patil
Advocate for Respondent 2 : Ms. Mayur S. Hange (appointed)
Advocate - Amicus Curiae : Mr. A.R. Joshi
...
CORAM : ARUN R. PEDNEKER, J.
DATE : 14/08/2025
ORDER :
1. Heard the learned counsel for the applicant, the learned APP for the
respondent-State, Ms. M.S. Hange, learned advocate appointed for respondent
No. 2 and Mr. A.R. Joshi, who has assisted this Court as amicus curiae in this
case.
2. The applicant is seeking bail as he is arrested in connection with Crime
No. 220/2024 dated 8.6.2024 registered with Shillegaon Police Station,
District Aurangabad for the offences punishable under sections 376, 376(2)
(N), 376(3), 366-A, 363, 109 of Indian Penal Code (‘IPC‘ for short) and
sections 4, 6, 8, 12, 17 of the Protection of Children From Sexual Offences Act
(‘POCSO’ Act for short).
3. This Court vide order dated 14.07.2025 has recorded the submissions of
the learned counsel for the applicant and learned APP, which are as under :-
“3. The FIR is registered by the father of the victim that on
7.6.2024 unknown person had kidnapped the victim, who was
14 years, 11 months and 10 days old at the time of incident.
It is stated that on 16.6.2024 the victim was traced.
Thereafter, statement of victim was recorded and the crime is
registered for aforesaid offences. In the statement of victim,
she has stated that the applicant had forcefully taken the
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2victim with him and had forceful sexual intercourse with her.
Investigation is completed and chargesheet in the matter is
also filed on 10.09.2024. The bail application of the applicant is
rejected by the trial Court. After filing of the chargehseet, the
present bail application is filed before this Court.
4. The learned counsel for the applicant submits that on
perusal of statement of victim recorded under section 164 of
Cr.P.C., it reveals that the victim has travelled with the
applicant on her own will as there was love relations between
them and she has stayed with the applicant for the period of
ten days. The learned counsel submits that the victim was of
age of understanding. The learned counsel submits that
applicant is only 20 years of age and since the date of arrest he
is behind bars. Investigation in the matter is completed and
chargeheet also filed. The learned counsel has placed reliance
on the following cases :-
(i) Order of Supreme Court in the case of Dhanraj @
Musa Vs. State of Rajasthan & Anr in Criminal Appeal
No. /2024 (@SLP (CRL) No. 11020/2024) dated
4.10.2024.
(ii) Judgment of this Court in the case of Ranjit
Dattatray Kolekar Vs. The State of Maharashtra and
others in Criminal Appeal No. 445/2022 dated 6.5.2022
and
(iii) Order of this Court in the case of Nitin Damodar
Dhaberao Vs. State of Maharashtra in Criminal Application
(BA) No. 718/2023 dated 5.1.2024
5. The learned counsel for the applicant, therefore, prays to
release the applicant on regular bail.
6. Per contra, the learned APP has relied upon the order of
the Hon’ble Supreme Court in the case of X (Minor) Vs. The
State of Maharashtra in Criminal Appeal No. 263/2022 (Arising
out of SLP (Cri) No. 9317 of 2021 dated 21.2.20222 and
prayed for rejection of application for grant of bail.”
4. Considering the judgment of the Hon’ble Supreme Court in the case of X
(Minor) Vs. The State of Maharashtra cited supra, this Court has requested the
learned counsel Mr. Amol Ram Joshi, amicus curie, to assist the Court in
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3
deciding whether bail can be granted to the applicant in view of the above
judgment of Supreme Court in the case of X (Minor), wherein Hon’ble
Supreme Court, in para 6 has held as under :-
“6. The High Court was manifestly in error in allowing the
application for bail. The reason that from the statement under
Section 164 and the averments in the FIR, it appears that
“there was a love affair” between the appellant and the second
respondent and that the case was instituted on the refusal of
the second respondent to marry the appellant, is specious.
Once, prima facie, it appears from the material before the
Court that the appellant was barely thirteen years of age on
the date when the alleged offence took place, both the
grounds, namely that “there was a love affair” between the
appellant and the second respondent as well as the alleged
refusal to marry, are circumstances which will have no bearing
on the grant of bail. Having regard to the age of the
prosecutrix and the nature and gravity of the crime, no case for
the grant of bail was established. The order of the High Court
granting bail has to be interfered with since the circumstances
which prevailed with the High Court are extraneous in view of
the age of the prosecutrix, having regard to the provisions of
Section 376 of IPC and Section 6 of POCSO.”
5. Mr. A.R. Joshi, amicus curie on the issue of “(a) Whether age of minor
can be considered while granting regular bail under the protection of Children
From Sexual Offences act, 2012?” has made submissions as under :-
1) Pursuant to Article 15 of The Constitution of India the
State is empowered to make special provision for children.
2) Article 39 provides that the State shall direct policy
towards securing that children of the tender age are not
abused and their childhood and youth are protected against
exploitation and they are given facility to develop in a healthy
manner and in conditions of freedom and dignity.
3) The Union of India is a party to the United Nation
Convention on the Rights of the Children, which requires the
state parties to undertake all appropriate national and
multilateral measures to prevent:-
(a) Inducement or coercion of a child to engage in any
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4unlawful sexual activity;
(b) Exploitative use of child in prostitution or other unlawful
sexual practices; and
(c) Exploitative views of child in pornography purposes and
materials.
4) In view of obligations on signatory States, it was
proposed to enact a comprehensive legislation to provide for
protection of child from offences of sexual assault, sexual
harassment and pornography with due regard for (i)
safeguarding interest and well-being of children at every stage
of judicial process, (ii) incorporating child friendly procedures
for reporting, (iii) recording of evidence, investigation and trial
of offences and provisions for establishment of special courts
for speedy trial of such offences.
5) To give effect to these objectives, the Parliament of the
Union of India enacted the Protection of Children from Sexual
Offences Act, 2012 (hereinafter referred to as “The POCSO
Act“).
6) The POCSO Act is gender neutral and regards the best
interest and welfare of the child as paramount importance at
every stage so as to ensure the healthy physical, emotional,
intellectual and social development of a child.
7) One of the essential features of the act is also noticed
from Sec. 29 of the Act, which reads as here under:-
“29. Presumption as to certain offences.- Where a person
is prosecuted for committing or abetting or attempting to
commit any offence under sections 3, 5, 7 and section 9
of this Act, the Special Court shall presume, that such
person has committed or abetted or attempted to commit
the offence, as the case may be unless the contrary is
proved.
30. Presumption of culpable mental state.-
(1) In any prosecution for any offence under this Act
which requires a culpable mental state on the part of the
accused, the Special Court shall presume the existence of
such mental state but it shall be a defence for the accused
to prove the fact that he had no such mental state with
respect to the act charged as an offence in that
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5prosecution.
(2) For the purposes of this section, a fact is said to be
proved only when the Special Court believes it to exist
beyond reasonable doubt and not merely when its
existence is established by a preponderance of probability.
Explanation. In this section, “culpable mental state”
includes intention, motive, knowledge of a fact and the
belief in, or reason to believe, a fact.”
8) It is also relevant to note that, Sec. 2 (1) (d) definition
of a child means any person below the age of 18 (Eighteen)
years.
9) The term ‘Child’ and ‘Minor’ are often used
interchangeable in common parlance. Further, both ‘child’ and
‘minor’ have multiple and varying definitions under different
laws and legal meaning of these terms lack uniformity.
a) The Age of majority is set at 18 years under the Indian
Majority Act, 1875.
b) The Hindu Minority and Guardianship Act, 1956 and The
Guardian and Wards Act, 1890 define ‘minor’ as a person below
age of 18.
c) Under The Prohibition of Child Marriage Act 2006, child is
person under the age of 21 in case of males and under 18 in
case of females.
d) The Right of Children to Free and Compulsory Education
Act, 2009 defines child as a person between the age 6 to 14
years.
e) Under The Juvenile Justice Act and POCSO Act, child is
defined as person under the age of 18 years.
f) The Child Labour (Prohibition of Regulation) Act, 1986
defines ‘child’ as a person, who has not completed the age of
14. This is the only law though defines adolescent as a person
between the age 14 to 18 years. The definition of ‘adolescent’
is absent under all other laws and is defined in the context of
government policies and programmes.
10) Under the Criminal Law jurisprudence, there is a
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presumption that a child is incapable of doing any wrong or
committing a crime.
11) Prior to enactment of POCSO Act, there was no specific
provision dealing with section of children and charges were
primarily filed under the I.P.C. especially under sec.375, 354
and 377 of The Indian Penal Code, 1860 (hereinafter referred
to as “The IPC“). The said provisions are not gender neutral, as
a result male child did not enjoy equal protection against
sexual abuse under the law. As against sexual abuse of male
child, the general provisions of I.P.C. relating to hurt, or force
and or also were permitted.
12) AGE OF CONSENT:
The age of consent is the age of at which a person becomes
legally capable of agreeing to marriage or sexual intercourse.
This age is defined by Statute. At present, the age of consent
for sexual intercourse is 18 years on account of provisions of
The POCSO Act. Prior to POCSO Act there was no separate
definition of age of consent and it was considered primarily by
virtue of Sec. 375 of I.P.C./defines rape. The rape being a
crime that can only to be committed against the woman, the
age of consent for sexual intercourse was only defined for a
female, under which age of consent is immaterial and sexual
activity amounts to statutory rape.
13) ……………….
14) The scheme of POCSO Act does not define as to what is
non-exploitative relationship or the concept of older
adolescence.
15) The definition of child as set out under the POCSO Act
leaves no discretion for a trial judge to conclude whether a
consent given by a child below 18 years is a consent or not. An
act which is otherwise defined to be an offence cannot be
described as a romantic relationship. The Hon’ble Supreme
Court of India in In Re.: Right to Privacy of Adolescents
[(2024) 8 SCR 575] has held as hereunder:
“16. The Division Bench has invited a very peculiar
concept of “non-exploitative sexual acts” while dealing
with the offences punishable under Section 376(2)(n) of
the IPC and Section 6 of the POCSO Act. We fail to
understand how a sexual act, which is a heinous offence,
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7can be termed as non-exploitative. When a girl who is
fourteen years old is subjected to such a horrific act, how
can it be termed as “non exploitative”? In paragraph 17,
the High Court refers to “marital rape”. In this case, there
is no evidence of marriage. The Bench has also invented a
non-existent category of “older adolescents” and lamented
about the lack of recognition of the consensual behaviour
of older adolescents. We fail to understand this concept of
“older adolescents”. Further, the Division Bench goes on
to observe that sexual behaviour adolescents, particularly
from the onset of puberty, is established as being a
natural, normative and integral part of an adolescent’s
development.
17. We must deal with some of the observations made
by the High Court. The High Court concluded that by
equating consensual and non-exploitative sexual acts with
rape and aggravated penetrative sexual assault, the law
undermines the bodily integrity and dignity of
adolescents. The High Court was not called upon to
discuss the merits and demerits of the existing laws. What
is shocking is the observation made in paragraph 23 of
the impugned judgment where the High Court observed
that while achieving ostensible objectives to protect all
children below 18 years from sexual exploitation, the law’s
unintended effect has been the deprivation of liberty of
young people in consensual relationship. The Court,
surprisingly, carved out a non-existing category of
romantic cases in the rape cases. While dealing with the
offences under the POCSO Act, shockingly, the Court
observed that the law undermines the identity of
adolescent girls by casting them as victims, thereby
rendering them voiceless. The Court says that, on the
other hand, adult boys are discriminately treated as
children in conflict with the law. Thereafter, in paragraph
25, the Court proceeded to criticize the POCSO Act by
observing that it clubs all persons below eighteen years
without considering their developing sexuality, evolving
capacity and the impact of such criminalisation on their
best interests. In paragraph 28, the Court went further. It
held that instead of protecting the adolescents from
abuse, the law exposes them in factually consensual and
non-exploitative relationships to the risk of criminal
prosecution. It compromises the mandate of protecting
the children. Therefore, the Court observes that an
amendment is necessary to decriminalise consensual
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8sexual acts involving adolescents above sixteen years.
The High Court, while dealing with an appeal against the
order of conviction, was not called upon to make the
observations which we have referred to above. Perhaps
these were the subjects on which only the experts could
have debated at a different forum. The judges ought to
have avoided expressing their personal views even
assuming that there was some justification for holding the
views. While the High Court observed this, it forgot that in
the facts of the case, the Court was not dealing with the
sexual acts involving adolescents above sixteen years, as
the age of the victim was fourteen years and the accused
was twenty-five years at the relevant time.
18. In paragraph 29, the Court went into the question
of rights-based approach, which was completely
unwarranted. In paragraph 30.1, the Court referred to the
generation of androgenic steroids and secretion from the
pituitary gland. Thereafter, the Court laid down the duties
and obligations of every female and adolescent in
paragraph 30.3, which we have quoted above. No reasons
are required to be recorded for holding that incorporation
of the same in the judgment is entirely irrelevant and
unwarranted. After that, the Court proceeded to lay
emphasis on incorporating the aspects of reproductive
health and hygiene into the school curriculum. There are
several statements and conclusions in the impugned
judgment which, to say the least, are shocking. Perversity
is writ large on the face of the judgment, which can be
seen in several paragraphs of the impugned judgment.
19. The duty of the High Court was to ascertain on the
evidence whether the offences under Section 6 of the
POCSO Act and Section 376 of the IPC were made out. In
view of “sixthly” in Section 375 of the IPC, penetrative
intercourse with a woman under eighteen years of age,
with or without her consent, constitutes an offence of
rape. Therefore, whether such offence arises from a
romantic relationship is irrelevant. How can an act that is
an offence punishable under the POSCO Act be described
as “a romantic relationship”? The High Court went to the
extent of observing that the case of criminalisation of a
romantic relationship between two adolescents of opposite
sex should be best left to the wisdom of the judiciary. The
Courts must follow and implement the law….”
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16) Thus, consent of a child below 18 years is an absolutely
irrelevant factor at all stage during the course of proceedings
under the POCSO Act.
17) It is not open for courts to dilute the offence as defining
the offences comes within the jurisdiction of legislature.
18) Section 439 of The Code of Criminal Procedure, 1973
and 483 of The Bhartiya Nagarik Suraksha Sanhita, 2023
provide for special powers of High Court or Court of Sessions
regarding bail. Power to grant bail is not touched or affected in
any manner by any provision under the POCSO Act. However,
the age of consent by a person below 18 years remains an
irrelevant consideration while granting bail. The Hon’ble
Bombay High Court while considering in Bail Application
No.3372/2021 (Faizan Wahid Baig Vs The State of
Maharashtra) and Criminal Application (Bail) No. 718/2023
decided on 05/01/2024 (Nitin Damodar Dhaberao Vs The State
of Maharashtra) took into account consensual nature of
relationship and granted bail to accused persons, however the
decisions were prior to judgment by the Hon’ble Supreme
Court in the matter of In Re: Right to Privacy of Adolescents
[(2024) 8 SCR 575].
19) The primary purposes of bail in a criminal case are to
relieve the accused of imprisonment, to relieve the State of the
burden of keeping him, pending the trial, and at the same
time, to keep the accused constructively in the custody of the
Court, whether before or after conviction, to assure that he will
submit to the jurisdiction of the Court and be in attendance
thereon whenever his presence is required.
20) Factors to be considered while granting bail;
i) Whether there is any prima facie or reasonable
ground to believe that the accused had committed the
offence;
ii) nature and gravity of the accusation;
iii) severity of the punishment in the event of
conviction;
iv) danger of the accused absconding or fleeing, if
released on bail;
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v) character, behaviour, means, position and standing
of the accused;
vi) likelihood of the offence being repeated;
vii) reasonable apprehension of the witnesses being
influenced;
viii) danger of justice being thwarted by grant of bail.
x) Prima facie satisfaction of the court in support of
the charge.
x) While a detailed examination of the evidence is to
be avoided while considering the question of bail, to
ensure that there is no prejudging and no prejudice, a
brief examination to be satisfied about the existence or
otherwise of a prima facie case is necessary.
The list is not exhaustive.”
6. Having noticed the above submissions of Mr. Joshi, primarily it is seen
that the age of the minor is absolutely irrelevant factor at all stages of the
proceedings under POSCO Act. The consent of minor is irrelevant under the
POSCO Act and this Court cannot dilute the offences under the POSCO Act by
holding that the minor was of the age of understanding. However, while
considering grant of bail in POSCO offences, there is no statutory
restriction/bar under the statute and the settled principles of granting bail in
criminal jurisprudence would apply.
7. While considering age of victim in determining the offence under
POSCO Act even in matrimonial relation, it is relevant to note the judgment of
the Hon’ble Supreme Court in the case of Independent Thought Vs. Union of
India reported in [2017] 13 S.C.R. 82 at para 105 has observed as under :-
“105. On a complete assessment of the law and the
documentary material, it appears that there are really five
options before us: (i) To let the incongruity remain as it is –
this does not seem a viable option to us, given that the lives of
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11thousands of young girls are at stake; (ii) To strike down as
unconstitutional Exception 2 to Section 375 of the IPC – in the
present case this is also not a viable option since this relief was
given up and no such issue was raised; (iii) To reduce the age
of consent from 18 years to 15 years – this too is not a viable
option and would ultimately be for Parliament to decide; (iv) To
bring the POCSO Act in consonance with Exception 2 to Section
375 of the IPC – this is also not a viable option since it would
require not only a retrograde amendment to the POCSO Act but
also to several other pro-child statutes; (v) To read Exception 2
to Section 375 of the IPC in a purposive manner to make it in
consonance with the POCSO Act, the spirit of other pro-child
legislations and the human rights of a married girl child. Being
purposive and harmonious constructionists, we are of opinion
that this is the only pragmatic option available. Therefore, we
are left with absolutely no other option but to harmonize the
system of laws relating to children and require Exception 2 to
Section 375 of the IPC to now be meaningfully read as: “Sexual
intercourse or sexual acts by a man with his own wife, the wife
not being under eighteen years of age, is not rape.” It is only
through this reading that the intent of social justice to the
married girl child and the constitutional vision of the framers of
our Constitution can be preserved and protected and perhaps
given impetus. ”
8. In the above concurrent judgment, Justice Deepak Gupta at para No. 79
has observed as under :-
“79. Another aspect of the matter is that the POSCO was
enacted by Parliament in the year 2012 and it came into force
on 14th November, 2012. Certain amendments were made by
Criminal Law Amendment Act of 2013, whereby Section 42 and
Section 42A, which have been enumerated above, were added.
It would be pertinent to note that these amendments in POCSO
were brought by the same Amendment Act by which Section
375, Section 376 and other sections of IPC relating to crimes
against women were amended. The definition of rape was
enlarged and the punishment under Section 375 IPC was made
much more severe. Section 42 of POCSO, as mentioned above,
makes it clear that where an offence is punishable, both under
POCSO and also under IPC, then the offender, if found guilty of
such offence, is liable to be punished under that Act, which
provides for more severe punishment. This is against the
traditional concept of criminal jurisprudence that if two
punishments are provided, then the benefit of the lower
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12punishment should be given to the offender. The legislature
knowingly introduced Section 42 of POCSO to protect the
interests of the child. As the objects and reasons of the POCSO
show, this Act was enacted as a special provision for protection
of children, with a view to ensure that children of tender age
are not abused during their childhood and youth. These
children were to be protected from exploitation and given
facilities to develop in a healthy manner. When a girl is married
at the age of 15 years, it is not only her human right of choice,
which is violated. She is also deprived of having an education;
she is deprived of leading a youthful life. Early marriage and
consummation of child marriage affects the health of the girl
child. All these ill effects of early marriage have been
recognised by the Government of India in its own documents,
referred to hereinabove. ”
9. In the judgment cited supra at para 88, the Hon’ble Supreme Court has
held that exception 2 to Section 375 IPC in so far as it relates to a girl child
below 18 years is liable to be struck down. Thus, the Hon’ble Supreme Court
has given primacy to POSCO Act and has held that consent of minor child
below 18 years is irrelevant for all purposes in all circumstances i.e. even in
matrimonial relations.
10. In POCSO offence, although the age of minor remains irrelevant, while
considering application for grant of bail, the court may also look at some other
factors as submitted by Mr. A.R. Joshi, the learned amicus curaie. In this
regard, it is relevant to note the judgment of the Hon’ble Supreme Court in
the case of Sanjay Chandra Vs. CBI reported in [2011] 13 (ADDL) S.C.R. 309
wherein at para 21 has observed as under :-
“21) The concept and philosophy of bail was discussed by this
Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2
SCC 281, thus:
“6. “Bail” remains an undefined term in CrPC. Nowhere
else has the term been statutorily defined. Conceptually,
it continues to be understood as a right for assertion of
freedom against the State imposing restraints. Since the
UN Declaration of Human Rights of 1948, to which India is
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13a signatory, the concept of bail has found a place within
the scope of human rights. The dictionary meaning of the
expression “bail” denotes a security for appearance of a
prisoner for his release. Etymologically, the word is
derived from an old French verb “bailer” which means to
“give” or “to deliver”, although another view is that its
derivation is from the Latin term “baiulare”, meaning “to
bear a burden”. Bail is a conditional liberty. Stroud’s
Judicial Dictionary (4th Edn., 1971) spells out certain
other details. It states:
“… when a man is taken or arrested for felony, suspicion
of felony, indicted of felony, or any such case, so that he
is restrained of his liberty. And, being by law bailable,
offereth surety to those which have authority to bail him,
which sureties are bound for him to the King’s use in a
certain sums of money, or body for body, that he shall
appear before the justices of goal delivery at the next
sessions, etc. Then upon the bonds of these sureties, as is
aforesaid, he is bailed–that is to say, set at liberty until
the day appointed for his appearance.”
Bail may thus be regarded as a mechanism whereby the
State devolutes upon the community the function of
securing the presence of the prisoners, and at the same
time involves participation of the community in
administration of justice.”
11. In para 16 and 17 of the aforesaid case of Sanjay Chandra, the Hon’ble
Supreme Court has also observed as under :-
“16) This Court, time and again, has stated that bail is the
rule and committal to jail an exception. It is also observed that
refusal of bail is a restriction on the personal liberty of the
individual guaranteed under Article 21 of the Constitution. In
the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308,
this Court opined:
“2. The basic rule may perhaps be tersely put as bail,
not jail, except where there are circumstances suggestive
of fleeing from justice or thwarting the course of justice or
creating other troubles in the shape of repeating offences
or intimidating witnesses and the like, by the petitioner
who seeks enlargement on bail from the Court. We do not
intend to be exhaustive but only illustrative.
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3. It is true that the gravity of the offence involved is
likely to induce the petitioner to avoid the course of
justice and must weigh with us when considering the
question of jail. So also the heinousness of the crime.
Even so, the record of the petitioner in this case is that,
while he has been on bail throughout in the trial court and
he was released after the judgment of the High Court,
there is nothing to suggest that he has abused the trust
placed in him by the court; his social circumstances also
are not so unfavourable in the sense of his being a
desperate character or unsocial element who is likely to
betray the confidence that the court may place in him to
turn up to take justice at the hands of the court. He is
stated to be a young man of 27 years with a family to
maintain. The circumstances and the social milieu do not
militate against the petitioner being granted bail at this
stage. At the same time any possibility of the absconsion
or evasion or other abuse can be taken care of by a
direction that the petitioner will report himself before the
police station at Baren once every fortnight.”
(17) In the case of Gudikanti Narasimhulu v. Public
Prosecutor, (1978) 1 SCC 240, V.R. Krishna Iyer, J., sitting as
Chamber Judge, enunciated the principles of bail thus:
“3. What, then, is “judicial discretion” in this bail
context? In the elegant words of Benjamin Cardozo:
“The Judge, even when he is free, is still not wholly free.
He is not to innovate at pleasure. He is not a knight-
errant roaming at will in pursuit of his own ideal of beauty
or of goodness. He is to draw his inspiration from
consecrated principles. He is not to yield to spasmodic
sentiment, to vague and unregulated benevolence. He is
to exercise a discretion informed by tradition, methodized
by analogy, disciplined by system, and subordinated to
“the primordial necessity of order in the social life”. Wide
enough in all conscience is the field of discretion that
remains.”
Even so it is useful to notice the tart terms of Lord
Camden that
“the discretion of a Judge is the law of tyrants: it is always
unknown, it is different in different men; it is casual, and
depends upon constitution, temper and passion. In the
best, it is oftentimes caprice; in the worst, it is every vice,
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folly and passion to which human nature is liable….”
Perhaps, this is an overly simplistic statement and we
must remember the constitutional focus in Articles 21 and
19 before following diffuse observations and practices in
the English system. Even in England there is a growing
awareness that the working of the bail system requires a
second look from the point of view of correct legal criteria
and sound principles, as has been pointed out by Dr
Bottomley.”
12. The Hon’ble Supreme Court in the case of Sanjay Chandra supra has
primarily held that bail should be the rule and during pendency of the trial the
liberty should not be curtailed unless there are circumstances suggestive of
applicant fleeing from justice or thwarting the course of justice or creating
other troubles in the shape of repeating offences or intimidating the witnesses.
Considering the gravity of the offence involved is likely to induce the accused
to avoid the course of justice, so also heinousness of the crime. While dealing
with the bail, the court should exercise judicial discretion based on well settled
principles of law and the concern of the court should be to secure the presence
of the applicant, who is seeking bail. Thus, the court may take into
consideration antecedents of the applicant to find whether he has bad record
particularly the record which suggests that he is likely to commit serious
offence while on bail.
13. Having considering the law on the subject of grant of bail as above,
although the age of consent of minor is immaterial for the offence under
POSCO Act, the grant of bail would be at the discretion of the Court to be
exercised on well settled principles as noted above. Exercise of the
discretionary power of the Court is not an uncontrolled power. The Court may
exercise the power more liberally when investigation in the matter is complete
and that the possibility of the applicant from fleeing from justice is remote,
when he has no antecedents and he may not possibly interfer with the justice.
BA 877/25
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14. In the case of X (Minor) cited supra, the Hon’ble Supreme Court was
dealing with the case of minor girl of 13 year of age and there exploitation at
the hands of the applicant by use of some material which was in possession of
applicant therein and grant of bail was challenged by the minor.
15. Coming to the facts of the case, it is to be seen that the investigation is
complete, the applicant is behind bars from 9.8.2024, there are no
antecedents against him and that trial would take much time to conclude, the
applicant is prima-facie not a threat to the victim or society in general and
conditions can be imposed so as to keep him away and ensure that he does
not influence the victim. In the instant case, the minor has consented to grant
bail as can be seen from the record. Considering these aspect of the matter,
bail can be granted to the applicant.
16. In view of the above, the application is allowed in the following terms :
a] The applicant shall be released on bail in connection with Crime
No. 220/2024 dated 8.6.2024 registered with Shillegaon Police Station,
District Aurangabad for the offences punishable under sections 376,
376(2)(N), 376(3), 366-A, 363 of I.P.C. and sections 4, 6, 8, 12, 17 of
POCSO Act, on furnishing PR bond of Rs.20,000/- with one or two
sureties in the like amount to the satisfaction of the trial Court.
b] The applicant, upon being released on bail, shall not contact the
informant or witnesses, in any manner whatsoever, during the pendency
of the trial.
c] The applicant shall co-operate with the trial Court and he shall
attend each and every date, unless exempted by the Court.
d] The applicant shall not tamper with the evidence of the
prosecution and he shall not influence the informant, witnesses and
other persons concerned with the case.
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e] The applicant, upon being released on bail, shall place on record
of the trial Court the details of his Contact Number and residential
address with updates in case of any change.
17. Needless to say, in case of violation of any of the aforesaid conditions,
the bail granted to the applicant shall be liable to be cancelled.
18. It is also clarified that the observations made in this order are limited to
the disposal of the present bail application. The concerned Court shall proceed
further in the matter without being influenced by the observations made
hereinabove.
19. The application stands disposed of.
20. This Court places on record its sincere appreciation for the valuable
assistance rendered by Mr. Amol Ram Joshi, learned counsel, during the
course of this proceedings.
21. High Court Legal Services Sub-Committee, Aurangabad shall pay fees of
Rs.10,000/- to the learned counsel appointed for respondent No. 2.
[ARUN R. PEDNEKER, J.]
SSC/