Bombay High Court

AAYUSH ANIL AVEREversusTHE STATE OF MAHARASHTRA AND ORS.

Disposal: Allowed

Holding

The court allowed the anticipatory bail application, holding that the prima facie case did not show a violent or forcible offence and that the factors outlined in Sunil Mahadev Patil v. State of Maharashtra favored bail.

Summary

The applicant, Aayush Anil Avere, a 24‑year‑old, sought anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 in connection with offences alleged under that Act and the Protection of Children from Sexual Offences Act, 2012. The FIR alleged that the applicant had a consensual relationship with the 16‑year‑old daughter of Respondent No. 3, leading to a complaint by the parents. The prosecution argued that the victim’s statement indicated a love relationship, while the defence emphasized the absence of any violent or forcible act, the applicant’s clean record, and that the complaint arose from a misunderstanding. Relying on the precedent Sunil Mahadev Patil v. State of Maharashtra, the court examined factors such as the minor’s age, presence of violence, antecedents, and risk of tampering. Finding no prima facie evidence of a violent offence and noting the applicant’s cooperation, the court granted anticipatory bail with strict conditions, including a personal bond, reporting to the investigating officer, and no tampering with evidence.

Issues considered

Whether anticipatory bail can be granted when the accused is alleged to have had a consensual relationship with a minor under BNSS 2023 and POCSO Act.
Whether the presence of a minor victim and the nature of the alleged offences preclude bail.
Whether there is a risk of intimidation, evidence tampering, or repeat offence that would justify denial of bail.

Legislation cited

Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 115(2), 182, 183, 318(2), 351(2), 352, 482, 64(2)(m), 69
Protection of Children from Sexual Offences Act, 2012 — s. 12, 4, 8

Subjects

anticipatory bail
minor consent
BNSS 2023
POCSO Act
Section 482
criminal procedure
bail conditions
sexual offences

Judgment

63-ABA-434-2026.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 434 OF 2026
Aayush Anil Avere … Applicant
Versus.
The State of Maharashtra And Ors. … Respondents
-----
Mr. Shubham Gagan, Advocate for the Applicant.
Mr. A. S. Shalgaonkar, APP for the Respondent – State.
Mr. Aarya Ambulkar, Advocate for the Respondent No. 3.
Mr. Ganesh Shinde, HC -05, Guhagar Police Station, is present.
-------

CORAM : ASHWIN D. BHOBE, J.
DATE : 24th August, 2026.
P.C. :

1. At the outset, Mr. Shubham Gagan, learned Advocate for the

Applicant, states that due to an error on his part, there is a mistake in

the prayer clauses (a) and (b) of this Application. He therefore seeks

leave to amend the prayer clauses (a) and (b) of this Application. This

request, made by Mr. Shubham Gagan, learned Advocate for the

Applicant, is not opposed by Mr. A. S. Shalgaonkar, learned APP, and

Mr. Aarya Ambulkar, learned Advocate for the Respondent No. 3.

2. In view of the no objection, leave is granted to amend the prayer

clauses (a) and (b) of this Application, as prayed. Mr. Shubham Gagan,

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learned Advocate for the Applicant, requests permission to carry out the

amendment forthwith. Permission granted.

3. Heard Mr. Shubham Gagan, learned Advocate for the Applicant,

Mr. A. S. Shalgaonkar, learned APP for the Respondent – State and Mr.

Aarya Ambulkar, learned Advocate for the Respondent No. 3.

4. By this Application filed under Section 482 of the Bharatiya

Nagarik Suraksha Sanhita, 2023 (“BNSS, 2023”), the Applicant seeks

pre-arrest bail in connection with Crime No. 62 of 2026 registered with

Guhagar Police Station, for offences punishable under Sections 64(2)

(m), 69, 318(2), 115(2), 352 and 351(2) of the Bharatiya Nyaya

Sanhita, 2023, and under Sections 4, 8 and 12 of the Protection of

Children from Sexual Offences Act, 2012.

5. Mr. Shubham Gagan, learned Advocate for the Applicant, states

that the Applicant is the sole Accused in Crime No. 62 of 2026.

6. The prosecution case is that the Applicant and the victim (i.e. the

daughter of the Respondent No. 3) were in love. Their relationship

developed into a physical relationship. Upon this being divulged to the

Respondent No. 3, an FIR bearing No. 62 of 2026 was registered.

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7. Mr. Shubham Gagan, learned Advocate for the Applicant, submits

that the Applicant is a young man, aged 24 years, and the victim is

about 16 years old. He submits that the Applicant and the victim were

friends and in a loving relationship. He further submits that the

complaint was filed only after the victim's parents realized this

relationship. He submits that the Applicant has no criminal antecedents.

8. Mr. A. S. Shalgaonkar, learned APP for the Respondent – State,

submits that the investigation conducted by the Investigating Officer,

particularly the statement of the victim recorded under Section 183 of

the BNSS, 2023, reveals that the victim was in fact, in love with the

Applicant.

9. Mr. Aarya Ambulkar, learned Advocate for Respondent No. 3,

submits that Respondent No. 3 filed the complaint against the Applicant

due to a misunderstanding that the Applicant had committed a forcible

sexual act against the victim. He further submits that upon realizing

that the Applicant and the victim were in love with each other,

Respondent No. 3 appeared before the Trial Court and filed an

Application stating that neither she nor the victim had any grievance

against the Applicant.

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10. Perused the records.

11. In Sunil Mahadev Patil v. The State of Maharashtra 1, this Court, in

paragraphs 8 to 12, observed as follows:

8. It is to be noted that the case of S. Varadarajan
was decided in the year 1967 when the women were not
enjoying the freedom which today the women have. Albeit the
Hon'ble Supreme Court then has taken a pragmatic view and has
acquitted Varadarajan. Now we come across such cases everyday.
If a girl is a minor between the age group of 15 to 18 years and if
it can be safely inferred that her consent was obvious, then it is a
mitigating circumstance. Some trial Courts dealing with such
Bail Applications, especially after Nirbhaya case, started taking a
strict approach and the accused are denied the bail only on the
ground that the prosecutrix being minor below 18 years, her
consent is immaterial, therefore, in the case of rape on such
minor, no bail can be granted. This is a matter of concern.

9. In view of the increasing offences against the
women especially of rape, the legislature and judiciary both
found it obligatory to deal these offences with severe
punishment and women can be protected if the laws are made
rigorous. Therefore, report of Justice Verma Committee was
accepted and necessary and significant amendments were made
in these two sections. A wrong doer is to be punished, guilty is to
be convicted. However, at the stage of bail, the Court has to
consider prima facie under what circumstances the offence is
committed by the accused. In the Criminal law, the Court cannot
ignore the intention or motive behind the act and that is an
important factor in the commission of offence so also to decide
the quantum of sentence at the end of trial, so in the case of bail.

10. The offence of rape can be distinguished on the basis of
the intention of the accused. There are incidents of rapes
committed by gang like the case of Nirbhaya or Maya Thagi or
Mathura which cannot be forgotten by Indian Society. So also
rape committed in a savage manner or repeatedly by a single
accused. There are some instances of rape which take place as a
man wants to satisfy his lust and animal within him overpowers
his reason. There are instances of rape where a man and a
woman both are in love with each other and get involved into

1 2015 SCC OnLine Bom 6204

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sexual relationship due to either physical or psychological need
and in such type of rape, there is no violence which exists in
other types of rape.

11. Today teenagers are exposed to more sex related issues
and lot of material is also available to them to know the sexual
relationship between a man and a woman. Because of their
impressionable age, girls and boys both may tend to get
provoked and there can be a curious and very compelling
demand of the body to get into such kind of relationship. Sexual
urge differs from person to person and there cannot be any
mathematical formula in respect of sexual behavioral pattern of
teenagers, as biologically whenever the child turns into puberty,
the child starts understanding his or her sexual needs. The
nature of response depends on the upbringing, peer pressure,
how civilized the environment is etc. Sex requires proper
physical and emotional preparation, as it results in many
physical and emotional consequences. This is all considered as a
sexual maturation. Therefore, some sects with view to regularize
sexual behaviour of the community have acknowledged this
biological factor and therefore, the early age marriages are
performed in some religions or communities. Taking into
consideration this social and biological factors, the law makers
have considered the age of 15 as a age of consent when the
marriage is performed. Taking into consideration this
background, the trial Judge has to pass an order of bail in such
cases.

12. The overall considerations while deciding such
applications can be summed up as-

When a boy and a minor girl are in love with each other and
chose to live together without consent of their parents, then the
following factors are to be considered:

(i) What is the age of the prosecutrix, who is minor.

(ii) Whether the act is violent or not.

(iii) Whether there are antecedents or not.

(iv) Whether the offender is capable of repeating the Act or not.

(v) Whether there is likelihood of threats or intimidation, if at all
the boy is released.

(vi) Whether any chance of tampering with the material
witnesses when their statements are recorded.

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(vii) It is also to be taken into account in such cases that a boy in
his early 20's deserves to get employment and to plan, stabilize
and secure his future.

12. Prima facie, the Applicant and the victim appear to be in a

passionate relationship. The FIR does not allege that the Applicant

committed any violent or forcible act or any assault on the victim. The

Applicant has no antecedents.

13. Mr. Aarya Ambulkar, learned Advocate for Respondent No. 3, has

submitted that Respondent No. 3 filed the complaint against the

Applicant due to a misunderstanding.

14. The allegations and the conduct of the parties in Crime No. 62 of

2026, as stated by Mr. Shubham Gagan, learned Advocate for the

Applicant and Mr. Aarya Ambulkar, learned Advocate for Respondent

No. 3, indicate that the observations of this Court in the case of Sunil

Mahadev Patil (Supra) would apply to this case.

15. Mr. A. S. Shalgaonkar, learned APP, submits that the Applicant be

directed to appear before the Investigating Officer at Guhagar Police

Station in Crime No. 62 of 2026, as and when required by the

Investigating Officer and to undergo the medical tests required to be

conducted on the Applicant.
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16. Mr. Shubham Gagan, learned Advocate for the Applicant, on

instructions from the Applicant, states that the Applicant shall appear

before the Investigating Officer at Guhagar Police Station and shall

undergo medical tests, as required by the Investigating Officer, in the

investigation of Crime No. 62 of 2026. He further states that the

Applicant shall cooperate with the Investigating Officer. The statements

made by Mr. Shubham Gagan, learned Advocate for the Applicant, on

instructions from the Applicant, are recorded.

17. In view of the above, this Application is allowed on the following

conditions :-

(a) In the event of arrest of the Applicant in the

Crime No. 62 of 2026 registered with the Guhagar

Police Station, the Applicant shall be released on bail

upon furnishing a PR bond in the sum of Rs. 25,000/-,

with two sureties in the like amount to the satisfaction

of the Investigating Officer, Guhagar Police Station.

(b) The Applicant shall not directly or indirectly

make any inducement, threat or promise to any

person/s acquainted with the facts of the case to

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dissuade such person/s from disclosing the facts to the

Court or any police officer.

manner.

(d) The Applicant shall appear and report to the

Investigating Officer, at Guhagar Police Station, on

27th, 28th, 31st August, 2026 and 1st September, 2026,

from 10:00 am to 12:00 pm, and thereafter as and

when required by the Investigating Officer. The

Applicant shall co-operate with the Investigating

Officer in the process of investigation of Crime No. 62

of 2026.

(e) The Applicant shall offer to undergo medical

tests, as required by the Investigating Officer, Guhagar

Police Station, in the investigation of Crime No. 62 of

2026.

(f) The Applicant shall provide the Investigating

Officer, Guhagar Police Station, with his residential

address along with proof, his contact number and
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must inform the Investigating Officer of any changes

to this information from time to time.

18. Criminal Anticipatory Bail Application No. 434 of 2026 is

disposed of.

(ASHWIN D. BHOBE, J.)

Digitally
signed by
ARJUN
ARJUN KRISHNA
KRISHNA RODGE
RODGE Date:
2026.08.25
13:51:57
+0530

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