Bombay High Court
SANMYAK POPAT KHANDAGALEversusTHE STATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Disposed Off
Holding
Bail is granted to the accused subject to conditions, as the court found no prima facie evidence of force and considered the consensual nature of the relationship as a mitigating factor.
Summary
The Bombay High Court considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for an accused charged with offences under Sections 64(2)(m) and 137(2) of the Bharatiya Nyaya Sanhita, 2023 and Sections 4, 8 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The prosecution alleged sexual offences against a 17‑year‑old girl, while the defence argued that the relationship was consensual, non‑violent, and that the parties intended to marry. The court examined precedents on consent of minors, the presumption under Section 29 of the POCSO Act, and factors such as age, lack of force, and the accused’s clean record. Relying on judgments that treat consensual teenage relationships as mitigating circumstances, the court held that the presumption is not absolute and that the prosecution had not established a prima facie case of coercion. Consequently, the court granted bail with stringent conditions and clarified that the order was limited to bail and not a determination on the merits.
Issues considered
- What is the applicability of the presumption under Section 29 of the POCSO Act when the alleged minor consent is claimed?
- Does the consensual, non‑violent nature of the relationship and the ages of the parties justify granting bail?
- Whether the prosecution has established a prima facie case of force or coercion sufficient to deny bail?
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 483
- Bharatiya Nyaya Sanhita, 2023 — s. 137(2), 64(2)(m)
- Code of Criminal Procedure, 1973 — s. 164
- Indian Penal Code, 1860 — s. 361
- Protection of Children from Sexual Offences Act, 2012 — s. 12, 29, 4, 8
Subjects
- bail
- consent
- minor
- POCSO Act
- sexual offences
- age of consent
- presumption under Section 29
- prima facie
- voluntary relationship
Judgment
3.BA.3265.2026.doc
HARSHADA H. SAWANT
(P.A.)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.3265 OF 2026
Sanmyak Popat Khandagale .. Applicant
Versus
The State of Maharashtra and Anr. .. Respondents
.................…
Mr. Mahesh Pawar a/w. Mr. Utkarsh Gangurde and Mr. Saraj
Kunte, Advocates for Applicant.
Ms. Anuja S. Gotad, APP for Respondent No.1.
Ms. Akshada Nagrale, Advocate for Respondent No.2.
PC Balbhim Bhaskar Kore, Yeola City Police Station.
...................
CORAM : MILIND N. JADHAV, J.
DATE : AUGUST 24, 2026
P.C.:
1. Heard Mr. Pawar, learned Advocate for Applicant; Ms.
Gotad, learned APP for Respondent No.1 and Ms. Nagrale, learned
Advocate for Respondent No.2.
2. This is an Application under Section 483 of Bharatiya
Nagarik Suraksha Sanhita, 2023 seeking Bail in connection with C.R.
No.99 of 2026 registered with Yeola City Police Station, Nashik for
offences punishable under Sections 64(2)(m), 137(2) of the Bharatiya
Nyaya Sanhita, 2023; Sections 4, 8 and 12 of the Protection of
Children from Sexual Offences Act, 2012 which were added
subsequently.
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3. Bail Application is filed on behalf of Applicant who has been
apprehended pursuant to Compliant filed on 13.04.2026 and the
chargesheet have been filed on 11.06.2026 by the prosecution.
4. The statement under Section 164 of the Code of Criminal
Procedure, 1973 recorded under Section 183 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 at page No.65 and answer given to question
No.7 on page No.66, in fact, prima facie shows that the Applicant and
the prosecutrix were in a consensual relationship and the prosecutrix
who is 17 years and 4 months old, on her own volition and without
informing her parents, had accompanied the Applicant for 4 days and
on the fourth day, the police had arrived at the house of the sister of
the Applicant where they were staying and took them away to the
Police Station.
5. There is prima facie material in the form of statements which
show that the Applicant and the Complainant are desirous of marrying
each other and they have confessed not only to marry each other but
also their love for each other.
6. Ms. Nagrale, learned Advocate appearing for Respondent No.
2 on instructions, places on record Affidavit dated 24.08.2026. In the
said Affidavit, Respondent No. 2 who is the legal guardian of the
prosecutrix, namely her mother, has filed the Affidavit, inter alia,
stating that the Applicant and her daughter are in a love relationship
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with each other and the FIR was lodged on the spur of the moment
due to sudden provocation since the prosecutrix had left their house
without informing her parents and was away for 4 days and traced
only after 4 days. I have taken the said affidavit on record. There is no
element of force or coercion involved on the part of the Applicant.
Both parties are of young age. Age of Applicant is 20 years.
7. As held by this Court in the case of Sunil Mahadev Patil Vs.
State of Maharashtra1 it is true that a wrong doer is to be punished,
guilty is to be convicted. However at the stage of bail, Court has to
consider prima facie under what circumstances the offences are
committed by the accused. The offence of rape can be distinguished
on the basis of the intention of the accused. In the aforesaid judgment
the learned Court summed up the ethos of relationship between young
boys and girls aptly in paragraph No.11 of the said judgment which
reads thus:-
“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
1 BA No.1036 of 2015 – Decided on 03.08.2015
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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.”
8. It is also crucial to consider that the acts between the parties
were never violent or forced and that the offender has no antecedents.
Assistance for this is drawn from para Nos. 9 to 14 of a decision of this
Court in the case of Sajid Mehendi Hasan Khan Vs. The State of
Maharashtra and Anr.2 which is reproduced below for ease of
reference:-
“ 9. In so far as offences punishable under Sections 4, 5, and 6
of POCSO Act (special law) are concerned, it may be stated that
the provisions of this law are, though, stringent in nature,
however it would not deter the Court to grant or refuse bail in
order to secure the ends of justice more so when the trial has
not commenced despite a long hiatus and the case has been
pending trial before the trial Court for close to 5 years.
10. Assistance is drawn from the decision of the Supreme
Court in the case of S. Varadarajan v. State of Madras 3 wherein
the Court in paragraph No.2 has held thus:-
“2. Where a minor girl alleged to be taken away by
the accused person, had left her father's protection
knowing and having capacity to know the full
import of what she was doing and voluntarily joined
the accused, it could not be said that the accused
had taken her away from the keeping of her lawful
guardian within the meaning of section 361 of the
Penal Code, 1860 (“IPC” for short). Something more
had to be done in a case of that kind, such as an
inducement held out by the accused person or an
active participation by him in the formation of the
intention either immediately prior to the minor
leaving her father protection or at some earlier
stage.”
11. Though the above referred case was decided well before
the POCSO Act was enacted, this Court is well conscious of the
presumption ingrained in Section 29 of the said Act and that
argument on prosecutrix’s consent is irrelevant but prima facie
2 Criminal Bail Application No.1101 of 2024 decided on 27th March 2025
3 AIR 1965 942
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if the statements of prosecutrix recorded are read, it is clearly
borne out that she has been consenting to the actions which is
gathered from the record of the case.
12. In the facts of the present case, attention is drawn to the
decision of this Court (Coram: Mridula Bhatkar, J.) in the case
of Sunil Mahadev Patil Vs. The State of Maharashtra 4 to contend
that consensus of the prosecutrix who is below the age of 18
years is a mitigating circumstance for Trial Court to consider. In
furtherance to the above, Court has laid down certain specific
guidelines after taking into consideration relevant cases as also
the ethos and development of the age of the young offenders in
the Indian Society in general. Court in paragraph Nos.8, 9,11
and 12 has laid down certain principles which I find it apt to be
reproduced hereinbelow for consideration of bail in such
Applications. Paragraph Nos.8, 9, 11 and 12 read thus:-
“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. ...
4 Bail Application No. 1036 of 2015, decided on 03.08.2015.
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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.
(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
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future.”
13. Next the decision of this Court (Coram: Sandeep K.
Shinde, J.) in the case of Anirudha Radheshyam Yadav Vs. The
State of Maharashtra5 is also relevant in the facts of the present
case. Relevant paragraph No.4 is reproduced below for
reference and reads thus:-
“4. …..The conduct of the victim is indicative of
the fact that she had left the home of her parents by
her own will and that she had surrendered to the
physical desires of the applicant out of her love and
affection for him. It is not the case of the
prosecution that the applicant had promised to
marry her. Additionally, it is also not a case where
under the misconception of the fact, she had served
herself to the desire of the applicant for physical
relations. No doubt, that the applicant, under the
preview of POCSO Act, is a minor, however, the
facts of the present case indicate that she had
sufficient knowledge and capacity to know full
import of what she was doing and had only
thereafter voluntarily joined the complainant
(applicant).”
14. There is no doubt that presumption under Section 29
exists but it is not an absolute presumption. This Court is of the
opinion that presumption would come into play only when
prosecution is able to bring on record facts that would prima
facie form the foundation for the presumption. Otherwise, all
that the prosecution would be required to do is to raise some
allegation against the accused person and claim that the case
projected by it is true. Court will have to be on guard to see that
application of presumption without adverting to the essential
facts shall not lead to injustice since we are at a prima facie
stage and trial has not even begun. The presumption under
Section 29 of the POCSO Act is not absolute. Attention in this
regard is invited to the decision of High Court of Kerala in the
case of Joy Vs. State of Kerela Represented through the Public
Prosecutor6 in a similar case where age of prosecutrix as below
18 years and a similar argument was made. The relevant
paragraph Nos.9 to 11 are reproduced below:-
“9. Mere delay in reporting the matter to the
authorities concerned, especially sexual assault on a
minor girl, is immaterial and it would not be fatal to
the prosecution case. However, in the instant case, it
is not the delay alone that is significant. The
significant fact is that the complaint was given to the
authorities concerned only two weeks after the
mother received the lawyer notice from the
petitioner claiming a huge amount as professional
5 Criminal Bail Application No.2632 of 2019 decided on 09.01.2020
6 2019 SCC OnLine 783.
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fees. This raises suspicion on the prosecution case
against the petitioner. When the victim had
disclosed the matter to her mother in July, 2018,
one would have expected the mother to report the
matter to the authorities concerned much earlier
than 22.09.2018. The fact that she reported the
matter only after receiving a lawyer notice from the
petitioner assumes significance.
10. This court is not oblivious to Section 29 of the
Act which contains a legislative mandate that the
court shall presume commission of the offences by
the accused unless the contrary is proved. Section
29 of the Act states that where a person is
prosecuted for committing or abetting or
attempting to commit any offence under Sections 3,
5, 7 and 9 of the 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. The
court shall take into consideration the presumption
under Section 29 of the Act while dealing with an
application for bail filed by a person who is accused
of the aforesaid offences under the Act (See State of
Bihar v. Rajballav Prasad, (2017) 2 SCC 178 : AIR
2017 SC 630).
11. However, the statutory
presumption under Section 29 of
the Act does not mean that the
prosecution version has to be
accepted as gospel truth in every
case. The presumption does not
mean that the court cannot take
into consideration the special
features of a particular case.
Patent absurdities or inherent
infirmities or improbabilities in the
prosecution version may lead to an
irresistible inference of falsehood
in the prosecution case. The
presumption would come into play
only when the prosecution is able
to bring on record facts that would
form the foundation for the
presumption. Otherwise, all that
the prosecution would be required
to do is to raise some allegations
against the accused and to claim
that the case projected by it is
true. The courts must be on guard
to see that the application of the
presumption, without adverting to
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essential facts, shall not lead to
any injustice. The presumption
under Section 29 of the Act is not
absolute. The statutory
presumption would get activated
or triggered only if the prosecution
proves the essential basic facts. If
the accused is able to create
serious doubt on the veracity of
the prosecution case or the
accused brings on record materials
which would render the
prosecution version highly
improbable, the presumption
would get weakened. As held by
the Apex Court in Siddharam
Satlingappa Mhetre v. State of
Maharashtra, (2011) 1 SCC 694 :
AIR 2011 SC 312, frivolity in
prosecution should always be
considered and in the event of
there being some doubt as to the
genuineness of the prosecution, in
the normal course of events, the
accused is entitled to an order of
anticipatory bail. No inflexible
guidelines or straitjacket formula
can be provided for grant or
refusal of anticipatory bail. It
should necessarily depend on facts
and circumstances of each case in
consonance with the legislative
intention.”
9. Prima facie, in view of the above and considering the age of
understanding of the prosecutrix who is 17 years and 4 months of age,
Applicant has made out case for grant of bail subject to following
conditions:-
(i) Applicant is directed to be immediately released from
prison in connection with Crime No. 99 of 2026;
(ii) Applicant is directed to be released on bail on
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furnishing P.R. Bond of Rs. 15,000/- (Rs. Fifteen
Thousand only) with one surety of the like amount;
(iii) Applicant shall report to the Investigating Officer at
concerned Police Station, once every month on the first
Monday of the month between 10:00 a.m. to 12:00
p.m.;
(iv) Applicant shall co-operate with the conduct of trial and
attend the Trial Court on all dates, unless specifically
exempted and will not take any unnecessary
adjournments, if he does so it will entitle the
prosecution to apply for revocation of this order;
(v) Applicant shall not leave the State of Maharashtra
without prior permission of the Trial Court;
(vi) Applicant shall not influence with any of the witnesses
or tamper with the evidence in any manner;
(vii) Applicant shall keep the Investigating Officer informed
of his current address and mobile contact number and /
or change of residence or mobile details, if any, from
time to time, as applicable; and
(viii)Any infraction of the conditions shall entail cancellation
of bail granted to the Applicant.
10. It is clarified that the observations made in this order are
limited for the purpose of granting Bail only and I have not made any
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observations on merits of the case. The trial shall be adjudicated on
the strength of the evidence led and strictly on its own merits being
uninfluenced with any of the prima facie observations made
hereinabove in this order.
11. Bail Application is allowed and disposed of in the above
terms.
H. H. SAWANT [ MILIND N. JADHAV, J. ]
Digitally signed
by HARSHADA
HARSHADA HANUMANT
HANUMANT SAWANT
SAWANT Date:
2026.08.24
21:00:11 +0530
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