Bombay High Court
SHAIDUL AKBARALI MIRversusSTATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Allowed
Holding
Bail is granted to the applicant subject to stringent conditions.
Summary
The High Court considered the bail application of Shaidul Akbarali Mir, accused of offences under the IPC, POCSO Act and the Immoral Traffic (Prevention) Act, alleged to have lured a minor into a relationship and forced her into prostitution. The applicant had been in custody for over two years without any witness examination and argued that the allegations were false, the FIR was delayed, medical evidence did not corroborate assault, and co‑accused had been granted bail. The State contended that the offences were grave, the victim was a minor, and there was a risk of tampering with evidence or influencing witnesses. The Court examined the presumption under Section 29 of the POCSO Act, noted the lack of violence, the applicant’s clean antecedents, the prolonged pre‑trial detention, and the principle of parity with co‑accused, and concluded that bail could be granted with strict conditions. Accordingly, the bail application was allowed subject to a personal bond, sureties and various reporting and non‑contact conditions.
Issues considered
- Whether bail should be granted to the accused despite the seriousness of offences involving a minor under the POCSO Act and ITPA.
- Whether the delay in filing the FIR and lack of medical corroboration create reasonable doubt warranting bail.
- Whether the presumption of guilt under Section 29 of the POCSO Act is absolute in this case.
- Whether the risk of tampering with evidence or influencing witnesses outweighs the applicant’s right to liberty.
- Whether parity with co‑accused who were granted bail is a relevant factor.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 439
- Immoral Traffic (Prevention) Act, 1956 — s. 3, 4, 5
- Indian Penal Code — s. 363, 365, 366A, 370, 376(2)
- Protection of Children from Sexual Offences Act, 2012 — s. 29, 4, 8
Subjects
- bail
- POCSO Act
- sexual offences
- minor consent
- pre‑trial detention
- parity
- evidence tampering
- medical evidence
- delay in FIR
Judgment
2.BA.3308.2026.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.3308 OF 2026
Shaidul Akbarali Mir .. Applicant
Versus
State of Maharashtra and Another .. Respondents
....................
Mr. Satyavrat Joshi a/w. Mr.Nawaz Dordi, Advocates for Applicant.
Mr. Sukanta Karmakar, APP for Respondent – State.
Ms. Priyanka Chavan, Advocate for Respondent No.2.
Mr. S.S.Gore, API – Dehuroad Police Station.
................…
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 28, 2026
P.C.:
1. Heard Mr. Joshi, learned Advocate for Applicant, Mr.
Karmakar, learned APP for Respondent – State and Ms. Chavan,
learned Advocate for Respondent No.2.
2. This is an Application under Section 439 of the Criminal
Procedure Code, 1973 seeking bail in connection with C.R.No.640 of
2023 registered with Dehuroad Police Station, Pune for the offences
punishable under Sections 363, 365, 366A, 370, 376(2) of the Indian
Penal Code, 1860 read with Sections 4 and 8 of Protection of Children
from Sexual Offences Act, 2012 read with Sections 3, 4 and 5 of the
Immoral Traffic (Prevention) Act, 1956.
3. There are a total of three (3) accused persons in the present
case. Applicant before me is arraigned as Accused No.1. Applicant is
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arrested on 23.05.2027 and is incarcerated for the past 2 years 4
months. It is prosecution case that Applicant developed a love
relationship with prosecutrix and in and around October, 2023 under
the pretext of marriage took her away from her house. Pursuant to
which Applicant and prosecutrix stayed together at Applicant’s friend’s
house in Pune for a few days where they developed physical relations.
It is prosecution case that Applicant threatened prosecutrix to
maintain physical relations. Further, it is prosecution case that
Applicant forced prosecutrix into prostitution by compelling her to
maintain physical relations with people sent by Accused No.2 and the
monies received from those activities were sent to Applicant. Hence,
prosecutrix narrated this incident to one Zeba Shaikh who then
narrated the said occurrence to prosecutrix’s mother. It is prosecution
case that prosecutrix’s parents visited Applicant’s house from where he
was brought to the police station. FIR was lodged against Applicant for
the offences punishable under Indian Penal Code, 1860, Protection of
Children from Sexual Offences Act, 2012 and Immoral Traffic
(Prevention) Act, 1956.
4. Mr. Joshi, learned Advocate appearing for Applicant would
submit that Applicant has been falsely implicated in the present crime
and the allegations levelled against him are baseless, ambiguous and a
complete afterthought, particularly when the FIR was initially
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registered against unknown persons and Applicant was not named
therein. He would submit that there are material discrepancies in the
statements subsequently made by prosecutrix before the Investigating
Agency which cast serious doubt upon the veracity of the allegations.
He would submit that even as per the statement of the Complainant
and his wife, prosecutrix had allegedly informed them about her
whereabouts as early as in April 2024, yet no steps were taken to bring
the same to the notice of the Investigating Agency, thereby raising a
serious question regarding the subsequent implication of Applicant. He
would submit that the unexplained and inordinate delay in disclosing
the incidents and lodging the FIR assumes significance in the facts of
the present case and warrants consideration for grant of bail.
4.1. He would submit that allegations regarding physical assault
are not corroborated by the Medical Examination Report which does
not record any external perineal injuries or other injuries consistent
with the alleged assault attributed to Applicant. He would submit that
the medical evidence therefore does not corroborate to the allegations
made by prosecutrix and the material placed on record raises a prima
facie doubt regarding the prosecution case. He would submit that the
allegation of compelling prosecutrix into prostitution is undoubtedly a
serious allegation but the same cannot by itself dispense with the
requirement of assessing the material collected during investigation,
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particularly when there is a considerable delay in disclosure of the
incidents and subsequent addition of Sections. He would submit that
Applicant has no criminal antecedents and nothing incriminating has
been recovered at his instance.
4.2. He would submit that Applicant is a young person aged 28
years and has been in custody since May 2024 thereby having been
incarcerated for the past 2 years 4 months in prison. He would submit
that although the charges have been framed on 06.05.2025, no
witness has been examined till today and considering the nature of
prosecution case trial is likely to take considerable time to conclude.
He would submit that continued incarceration of Applicant in such
circumstances would amount to pre-trial detention for an unduly
prolonged period and would cause serious prejudice to his future and
career. He would submit that Applicant is the sole earning member of
the family.
4.3. He would submit that the investigation is complete, charge-
sheet has been filed and Applicant is therefore no longer required for
custodial interrogation. He would submit that Applicant is ready and
willing to cooperate with the Investigating Agency and to abide by any
conditions that may be imposed by this Court.
4.4. Mr. Joshi would further submit that similarly situated co-
accused persons have already been granted bail by this Court vide
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orders dated 06.01.2026 and 02.05.2025 and the said circumstance of
parity also deserves to be considered while determining grant of bail
to Applicant. He would therefore urge the Court to allow the present
Bail Application.
5. Mr. Karmakar, learned APP for Respondent – State would
submit that the present crime in question is grave and serious
considering the age of prosecutrix. He would submit that there are
serious allegations against the Applicant and hence considering the
gravity of offence this Court maybe cautious in allowing the Bail
Application. He would submit that Applicant may tamper with
evidence and shall make attempts to influence the victim and the
witnesses, such possibility cannot be ruled out. He would submit that
there is substantial material placed on record to corroborate the
prosecution case and thereby prove the guilt of Applicant and hence
he would urge the Court to reject the Bail Application.
6. Ms. Chavan, learned Advocate appearing for Respondent
No.2 – First Informant would adopt the submissions made by Mr.
Karmakar, learned APP, hence they are not reiterated for brevity, in
furtherance to which she would submit that allegations involve
exploitation and physical assault of prosecutrix and therefore there is a
reasonable apprehension that if released on bail Applicant may
attempt to influence the victim or other prosecution witnesses. She
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would submit that the fact that Applicant was not named in the FIR
initially cannot by itself be treated as a ground for bail particularly
when his role has subsequently emerged during the course of
investigation.
7. I have heard Mr. Joshi, learned Advocate for Applicant, Mr.
Karmakar, learned APP for Respondent – State and Ms. Chavan,
learned Advocate for Respondent No.2 and with their able assistance
perused the record of the case. Submissions made by learned
Advocates at the bar have received due consideration of the Court.
8. She has stated that all the above events continued for over 6
months until she confided the state of affairs to her friend, who
probably informed her father who is the First Informant –
Complainant. Her father lodged the complaint on 23.05.2024 stating
that he received information about the prosecutrix residing with
Applicant whereupon Applicant was arrested. The prosecutrix has also
recorded her further statement on 30.05.2024, copy of which is
appended at page No.65 of the Application wherein she has narrated
in detail the list of places which she had visited alongwith Applicant in
Vijayapura Karnataka, Nanded, Kolhapur, Nigdi Pune, etc., where she
alongwith another girl indulged into having physical relationship with
other persons.
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9. The investigation has led to gathering of prima facie
evidence which is in the nature of electronic evidence on the basis of
WhatsApp conversations and chats on the phone numbers of various
sources which prima facie show that several persons including the
photographs were exchanged between them and huge amounts which
are mentioned. On the face of record, this appears to be the case of
prostitution, the only question is about the age of the victim that she
was 16 years 10 months at the time when she left alongwith Applicant.
10. It is prima facie seen that the FIR came to be registered
against unknown persons and Applicant was not named therein. It is
seen that prosecutrix herself states she had love relationship and had
developed deep friendship and closeness with Applicant. It is seen that
there is a considerable delay in filling of the FIR considering that
parents of prosecutrix were aware of the alleged incidents. It is further
seen that there are certain discrepancies in the statements of
prosecutrix with regard to the time she was brought to Vijayapur for
the purpose of prostitution and the number of days she was made to
stay there for the said purpose. The Medical Examination Report of
prosecutrix also does not record force or physical coercion. This Court
is conscious that the absence of injuries by itself cannot be
determinative of the allegations particularly in an offence of the
present nature. However, the said circumstance when considered
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along with the other material circumstances emerging from the record
can be taken into consideration while considering the Applicant's
entitlement to bail.
11. From the material placed on record it is seen that
relationship between the parties is consensual and most importantly
there is no element of violence, abuse or coercion used by the
Applicant.
12. In this regard, assistance is drawn from the decision of the
Supreme Court in the case of S. Varadarajan v. State of Madras1
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.”
13. 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 if the statements
of prosecutrix which are recorded are read, it is clearly borne out that
she has been consenting to the actions which is gathered from the
1 AIR 1965 942
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record of the case.
14. 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 2 to contend that
consensus of the prosecutrix who is below the age of 18 years is a
mitigating circumstance for a 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
2 Bail Application No. 1036 of 2015, decided on 03.08.2015.
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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. ...
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 future.”
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15. Next, the decision of this Court (Coram: Sandeep K.
Shinde, J.) in the case of Anirudha Radheshyam Yadav Vs. The State of
Maharashtra3 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).”
16. 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
3 Criminal Bail Application No.2632 of 2019 decided on 09.01.2020
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Kerela Represented through the Public Prosecutor 4 in a similar case
where age of prosecutrix was 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 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 essential facts, shall not
lead to any injustice. The presumption under Section 29 of the
Act is not absolute. The statutory presumption would get
4 2019 SCC OnLine 783.
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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.”
17. 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.
18. At the outset, it is seen that Applicant is arraigned as
Accused No.1 and is in custody since 23.05.2024. The Applicant has
been incarcerated for more than two (2) years. It is further seen that
the charge came to be framed on 06.05.2025 and admittedly no
witness has been examined till date. Thus, considering the stage of the
trial and the period of incarceration already undergone by the
Applicant there is no likelihood of the trial concluding in the
immediate future. It is further seen that Applicant is a young person
aged 28 years and has no criminal antecedents to his discredit. The
continued incarceration of Applicant in the facts and circumstances of
the present case would therefore amount to prolonged pre-trial
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detention.
19. It is further seen that the investigation is complete and the
charge-sheet has already been filed. No incriminating material is
stated to have been recovered at the instance of Applicant. Applicant
has also placed on record that similarly situated co-accused have been
granted bail by this Court vide orders dated 06.01.2026 and
02.05.2025. Though the principle of parity cannot be applied
mechanically and the role attributed to each accused is required to be
considered independently, the orders granting bail to the co-accused
are a relevant circumstance in the present case. In view of the
Applicant's prolonged incarceration, absence of criminal antecedents,
the stage of the trial, completion of investigation, absence of any
incriminating recovery at his instance and the circumstance of parity, I
am of the considered opinion that Applicant can be enlarged on bail.
20. Hence, in view of above prima facie observations and
finding, Bail Application of Applicant is allowed subject to the
following terms and conditions:-
(i) Applicant is directed to be immediately released from
prison in connection with CR. No. 640 of 2023;
(ii) Applicant is directed to be released on bail on
furnishing P.R. Bond of Rs.25,000/- (Rs. Twenty Five
Thousand only) with one or two surety of the like
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amount;
(iii) Applicant shall report to the Investigating Officer at
Dehuroad Police Station, Pune on the first Sunday of
the month between 10:00 a.m. to 12:00 p.m. once
every month from today until commencement of trial
and thereafter shall attend all dates of hearing before
the Trial Court;
(iv) Applicant shall cooperate with the conduct of the trial
and remain present before the Trial Court on all dates,
unless specifically exempted. Applicant shall not seek
unnecessary adjournments. Any such conduct shall
entitle the prosecution to apply for cancellation of bail;
(v) Applicant shall not leave the country without prior
permission of the Trial Court;
(vi) Applicant shall not make any attempts to contact the
victim, First Informant or any witnesses by any physical
or electronic means and shall not attempt to influence
them or tamper with evidence in any manner;
(vii) Applicant shall keep the Investigating Officer informed
of his current residential address and mobile telephone
number and shall forthwith inform the Investigating
Officer of any change in his residential address or
mobile telephone number, as and when such change
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occurs; and
(viii)Any breach or infraction of any of the aforesaid
conditions shall entail cancellation of the bail granted
to the Applicant.
21. 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
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.
22. This Court appreciates the valuable assistance rendered by
Ms. Chavan, learned Advocate appointed through the Legal Aid to
espouse the cause of Respondent No. 2. Her fees be paid by the High
Court Legal Aid Services Authority as per rules on production of a
server copy of this order and other compliances in accordance with the
decision of this Court in the case of Sanjyot Nitin Telharkar Vs. The
State of Maharashtra & Anr.5 and the Schedule under Regulation
18(1) of the Maharashtra State Legal Services Authority Rules, 1998.
23. Bail Application is allowed and disposed in the above terms.
Ajay [ MILIND N. JADHAV, J. ]
Digitally signed
by AJAY
TRAMBAK
AJAY UGALMUGALE
TRAMBAK
UGALMUGALE Date:
2026.09.28
19:23:32
+0530 5 Misc. Civil Application No.134 of 2024 – Decided on 25.09.2024.
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