Bombay High Court
DIWAKAR LOKAYYA SHETTYversusSTATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Disposed Off
Holding
Bail was granted to Diwakar Lokayya Shetty (BA/110/2026) and denied to Vinaykumar Gangaprasad Nishad (BA/2802/2026).
Summary
The High Court considered two bail applications arising from Crime No.329 of 2025, which involved alleged sexual exploitation of a minor under the Bharatiya Nyaya Sanhita, POCSO Act, PITA Act and the Juvenile Justice Act. The prosecution alleged that the victim, a girl aged 16, was forced into prostitution by her mother and step‑father and that the accused Diwakar Shetty (A4) ran a hotel where she was sent to customers, while Vinaykumar Nishad (A2) was accused of raping her. The defence argued that the victim’s age was uncertain, that the Aadhar card showed her as 21, and that there was no direct evidence that Shetty knowingly facilitated a minor’s prostitution. The court found a prima facie case against Nishad and rejected his bail, but held that there was insufficient material to show Shetty’s knowledge of the victim’s minority and, noting his prior bail in a similar case, granted him bail with conditions. The bail order emphasized attendance requirements, non‑interference with evidence, and restriction from the Mumbai district.
Issues considered
- The existence of a prima facie case against each accused under the relevant statutes
- Whether the victim’s age can be conclusively established for the purpose of POCSO applicability
- Whether the accused had knowledge that the victim was a minor and participated in her exploitation
- Whether the accused are entitled to bail considering the seriousness of the offences and prior bail history
Legislation cited
- Bharatiya Nyaya Sanhita, 2023 — s. 118(1), 143(4), 144(1), 181, 351(2), 64(2)(f)(m), 65(1), 79
- Immoral Traffic (Prevention) Act, 1956 — s. 4, 5
- Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 75
- Protection of Children from Sexual Offences Act, 2012 — s. 12, 17, 4, 6, 8
Subjects
- bail
- sexual exploitation
- child protection
- prostitution
- prima facie case
- age of victim
- criminal procedure
Judgment
2026:BHC-AS:34232
SA_MANDAWGAD 917 BA 110 AND 2802-26.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 110 OF 2026
Diwakar Lokayya Shetty … Applicant
V/S.
State of Maharashtra and Anr. … Respondents
WITH
BAIL APPLICATION NO. 2802 OF 2026
Vinaykumar Gangaprasad Nishad … Applicant
V/S.
State of Maharashtra and Anr. … Respondents
Ms. Anjali Patil a/w. Tohid Shaikh, for the Applicant in
BA/110/2026.
Mr.Anish Desai a/w. Genevieve Lobo and Shweta Sinon, for
Applicant in BA/2802/2026.
Mr. T.G. Khan, APP for Respondent No.1–State.
Ms.Sandhya Nair a/w. C.Chetna Birje and Bhiyang More,
Respondent No.2.
CORAM: SHYAM C. CHANDAK, J.
DATED : 18th AUGUST, 2026
P.C. :-
1. Heard learned Counsel for the parties. Perused the record.
Ms. Patil tendered the Order of bail in Criminal B.A.No.1438/2025
by learned Additional Sessions Judge,-3, Thane. It is taken on
record and marked at Exhibit “X” for the purpose of identification.
2. The Applicants Diwakar L. Shetty in BA/110/2026 and
Vinaykumar G. Nishadin in BA/2802/2026, original Accused No.4
and 2 respectively (“A4 and A2”) seek their release on bail in
connection with Crime No.329 of 2025 registered with Charkop
Police Station, Mumbai for the offences punishable under Sections
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SA_MANDAWGAD 917 BA 110 AND 2802-26.DOC
64(2)(f)(m), 65(1), 79, 118(1), 143(4), 144(1) and 351(2) of the
Bharatiya Nyaya Sanhita, 2023 (for short, “BNS”), under Sections
4, 6, 8, 12 and 17 of the Protection of Children from Sexual
Offences Act, 2012 (“POCSO Act”), under Sections 4 and 5 of the
Immoral Traffic (Prevention) Act, 1956 (“PITA Act”), and under
Section 75 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (“JJ Act”), on the report dated 04.07.2025
lodged by the victim, allegedly aged 16 years.
3. The prosecution case is that at the relevant time, the victim
girl, her mother (A1) and her step father (A2) were residing
together. When the victim was 14 years of age, A1 told her that she
will have to do prostitution. Therefore, as stated in the FIR, about
7 to 8 months prior to the incident, A1 forced the victim to have
sex with A2. Then, A2 committed sexual intercourse with the
victim for four consecutive days and consequently she suffered
bleeding and pain. However, A1 told the victim that it is normal.
Further, A1 used to send her to various hotels for prostitution at
Mira Road. It is alleged that Accused No.3 Vikaramsingh Parmar
(A3) used to drive the victim to such hotels in his auto-rickshaw
on the say of A1 and, there, some person from the hotel used to
send her with customers to have sex with them. That A3 used to
charge Rs.700/- towards the auto-rickshaw services. It is alleged
that A3 also used to rape her on 2/3 days of a weeks after driving
her back home. At that time, her mother-A1 used to stay outside.
Therefore, if the victim was not earning on any day, A3 was not
charging her the auto-rickshaw fare. In the supplementary
statement, the victim alleged that the A4 used to run hotel Mantra
at Mira Road. There, he used to send the victim with customers for
the purpose of prostitution and he used to charge the customers
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SA_MANDAWGAD 917 BA 110 AND 2802-26.DOC
Rs.2,000/- to Rs.3,000/- per half an hour. Thus, the Applicants
have committed the aforesaid offence alongwith the co-accused.
4. Ms. Patil, learned Counsel for the Applicants submits that
Although A4 was allegedly running the said hotel, he was not
aware of the fact that the victim was minor because as per her
Aadhar Card, her age was 21 years. It is not the case that, at any
point of time, A4 had forced the victim to serve as prostitute. On
the contrary, she herself used to visit his hotel for the said
purpose. Therefore, the offence under POCSO is not applicable in
case of the A4. In the another crime, which is registered for similar
allegations, the Applicant is granted bail. Therefore, she submits
that the Applicants be released on bail.
5. Mr. Desai, learned Counsel for A2 submitted that in the
Report, it is alleged that A2 had raped the victim about 7-8
months prior to the lodging of the Report. However, in the
supplementary statement, the victim stated that it was about one
year prior to the lodging of the report. As per the Aadhar card, the
victim is aged 21 years and as per the ossification test, she was 16
years of age. Thus, there is material inconsistency in the material
on record. There is no age proof of the victim. He submitted that
the victim herself was involved in the prostitution and A2 never
told her to do that. Thus, A2 is innocent, but, he has been been
falsely implicated in the case. He, therefore, urged for bail.
6. In reply, Mr. Khan, learned APP and Ms. Nair, learned
counsel appearing for the victim submitted that there is sufficient
material against both the Applicants of having committed this
offence which is obviously serious. Therefore, bail be refused.
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SA_MANDAWGAD 917 BA 110 AND 2802-26.DOC
7. I have considered the submissions. Insofar as A2 is
concerned, in her Report and the statement under Section 181 of
the BNSS, the victim has consistently stated that when she was
aged 14 years, A2 had raped her for consecutive four days at the
instance of A1, to force her in prostitution. When she refused to do
prostitution, her mother-A1 had given her burns with hot knife.
The medical report clearly indicate that the victim was minor.
However, A2 never stopped the A1 from forcing the victim in
prostitution. Thus, there is a prima facie case against the Applicant
of having committed this crime.
8. Insofar as A4 is concerned, there is only allegation that he
used to send the victim with customers and he used to charge the
customers on hourly basis towards room services. However, there
is no material that A4 had called the victim to the hotel to serve as
prostitute. On the contrary, she was going there at the instance of
her mother-A1. Moreover, the Aadhar Card which she was
carrying indicated her aged as 21 years. Till carrying out the raid
related to another crime, the Applicant never complained against
the A4 that he was sending her with customer for prostitution. Ms.
Patil submitted that the other victims were major. Therefore, A4
deserves to be released on bail.
9. Insofar as criminal antecedent is concerned, Crime No.301
of 2025 registered with Kashimira Police Station against A4 and
others is of similar nature. Therein, A4 has been released on bail
vide Exh.X.
10. In the wake of above, BA/2802/2026 filed by Accused
Vinaykumar Gangaprasad Nishad is liable to be rejected and is
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SA_MANDAWGAD 917 BA 110 AND 2802-26.DOC
rejected accordingly. However, BA/110/2026 filed by Accused
Diwakar Lokayya Shetty deserves to be allowed. Hence, Order :-
(i) The Applicant Diwakar Lokayya Shetty be released on
bail in aforesaid Crime No.329 of 2025 registered with
Charkop Police Station, Mumbai, on his executing P.R.
Bond in the sum of Rs.1,00,000/- with one or two sureties
in the like amount.
(ii) The Applicant shall mark his attendance at Charkop
Police Station on 1st Monday every two month between
11:00 a.m. to 2:00 p.m. till conclusion of the trial.
(iii) The Applicant shall regularly attend the proceedings
before the jurisdictional Court unless exempted by the said
Court, for the reasons to be recorded in writing.
(iv) The Applicant shall not tamper with the prosecution
evidence and shall not directly or indirectly influence upon
the prosecution witnesses to prevent them from deposing
against him.
(v) On being released from jail, the Applicant shall
furnish his contact number and residential address to the
Investigating Officer and shall keep him updated, in case
there is any change.
(vi) The Applicant shall not indulge in identical activities
for which he has been arraigned in this case.
(vii) The Applicant Diwakar Lokayya Shetty shall not enter
in Mumbai area/Mumbai District till conclusion of the trial,
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SA_MANDAWGAD 917 BA 110 AND 2802-26.DOC
except for marking his attendance in the police station in
this crime and the another cirme and in the cases arising
out of said crimes.
(viii) It is clarified that any observation made in the present
Order are for the purpose of deciding the present Bail
Application and should not influence the outcome of the
trial and also not be taken as an expression of opinion on
the merits of the case.
11. Bail Applications stand disposed of in the aforesaid terms.
(SHYAM C. CHANDAK, J.)
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Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 19/08/2026 16:38:24
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