Bombay High Court Denies Bail To POCSO Accused; Rejects His Argument Of Impossibility Of Overpowering 17-Year-Old Boy

The Bombay High Court was considering a bail application filed under Section 439 of the Criminal Procedure Code, 1973 by the applicant seeking regular bail in connection with a case registered under Sections 137(2) and 126(2) of the Bharatiya Nyaya Sanhita, 2023, as well as under Sections 4, 6, 8, and 12 of the Protection of Children from Sexual Offences Act, 2012.

The Single Bench of Justice Amit Borkar observed, “The Applicant counsel's argument that it was impossible for the applicant to overpower the 17-year-old victim without signs of resistance lacks merit. Sexual offences often involve psychological coercion, fear, and shock, which may prevent the victim from offering effective physical resistance. The location of the incident (isolated bushes near a beach) and the element of surprise could have facilitated the commission of the offence without necessarily leaving extensive physical marks of struggle. Moreover, the age difference and physical strength comparison cannot be determined solely on the basis of chronological age. The Court cannot speculate on the relative physical capabilities of the parties without concrete evidence.”

“The nature of the alleged offence is such that it not only causes physical harm to the victim but also inflicts severe psychological trauma that may have long-lasting effects on the minor victim. Courts have consistently held that while considering bail in cases involving sexual offences against minors, the traumatic effect on the victim”, it added.

Advocate Aniket U. Nikam represented the Applicant, while APP Megha S. Bajoria represented the Respondent.

Factual Background

A 17-year-old victim boy approached the police station on July 31, 2024, and lodged a complaint stating that one day, when he had gone fishing with his friend, a man approached them and succeeded in taking the informant to the bushes situated near Aksa Beach. Upon reaching the bushes, the informant could not observe anything unusual, following which he attempted to leave the spot. However, the unknown person prevented him from departing forcibly removed the informant's clothing and committed unnatural carnal intercourse with him against his will and consent.

Despite the victim's attempts to resist and oppose the said act, he was unable to do so effectively as the accused person possessed greater physical strength than him. The victim was overpowered and subjected to the alleged sexual assault against his will. The accused person revealed his identity and callously told the victim that he was free to inform anyone about what had transpired. An FIR was registered and the accused was arrested.

Reasoning

Referring to the provisions of the POCSO Act, the Bench said, “While considering bail applications in cases involving POCSO Act, this Court is guided by the principles laid down by the Hon'ble Supreme Court in various judgments, including the landmark decision in Satpal Singh vs. State of Punjab, wherein it has been held that while bail is the rule and jail is the exception, special consideration must be given to the nature of the offence, the age of the victim, and the potential impact on the victim and society at large. Section 12 of the POCSO Act, under which the applicant has been charged, deals with sexual harassment of a child, while Sections 4, 6, and 8 pertain to penetrative sexual assault and aggravated penetrative sexual assault. These are serious offences that carry stringent punishment and require careful judicial scrutiny while considering bail applications.”

Coming to the facts of the case, the Bench noted that the medical report indicated signs of recent forceful penetration and stated that sexual violence couldn’t be ruled out. The medical examination was conducted on the day immediately following the alleged incident and the temporal proximity between the incident and medical examination lent credibility to the medical findings and negated the possibility of the injuries being caused at any other time or by any other means. “...this Court finds that there exists sufficient prima facie evidence to suggest the involvement of the applicant in the alleged offence”, it said.

As per the Bench, the fact that the accused allegedly disclosed his name to the victim, as mentioned in the FIR, provided a reasonable explanation for how the victim came to know the accused's identity. “The absence of a Test Identification Parade, while being a procedural lapse, does not automatically vitiate the prosecution case, particularly when the accused's identity was allegedly disclosed by himself to the victim”, it stated while also adding, “The consistency between the FIR and the Section 164 statement strengthens the prosecution case and demonstrates that the victim has maintained his version consistently.”

Noticing that the allegations against the applicant involved serious sexual offences against a minor and charges under Sections 4, 6, 8, and 8 12 of the POCSO Act are grave in nature and carry severe punishment, the Bench observed that Section 4 of the POCSO Act prescribes punishment for penetrative sexual assault with imprisonment of not less than seven years, which may extend to life imprisonment. The Bench held that the prosecution had successfully established a prima facie case against the applicant. The medical evidence corroborated the victim's statement, and the prompt reporting of the incident added credibility to the prosecution's case.

“The POCSO Act represents the legislative intent to provide stringent protection to children from sexual offences. Courts, as guardians of justice, have a solemn duty to ensure that this legislative objective is not defeated by a liberal approach to bail in such serious cases. The Court further observes that the trauma suffered by child victims in sexual assault cases is immense and long-lasting. The criminal justice system must be sensitive to their plight and ensure that they are not subjected to further victimization through intimidation or influence by the accused persons”, the Court said.

Highlighting the fact that the victims should not be subjected to further victimization through intimidation or influence by the accused persons, the Bench rejected the bail application.

Cause Title: Mayur Raju Wankhede v. The State of Maharashtra & Anr. (Neutral Citation: 2025:BHC-AS:26341)

Appearance

Applicant: Advocates Aniket U. Nikam, Sumit Patil

Respondent: APP Megha S. Bajoria, Advocate Viral Mukte

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