Bombay High Court
NITESH @ PAPYA SHRIKANT PATILversusSTATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Allowed
Holding
The Court granted bail to the applicant on conditions, finding no prima facie case to justify continued detention.
Summary
The Bombay High Court considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 by Nilesh Patil, accused of offences under Sections 69 and 70 of the Bharatiya Nyaya Sanhita, 2023 and Sections 4 and 8 of the POCSO Act, 2012. The complainants were two sisters, aged 18 and 16, who alleged a consensual relationship that later turned non‑consensual. The Court examined discrepancies between the FIR and the victims' supplementary statements, the applicability of the presumption under Section 29 of the POCSO Act at the bail stage, and relevant Supreme Court precedents on consent and false promises of marriage. Finding the allegations vague, inconsistent and lacking prima facie evidence, and noting that the relationship appeared consensual, the Court held that the presumption could not be invoked without substantive proof. Consequently, bail was granted with strict conditions, without commenting on the merits of the case.
Issues considered
- Whether bail should be granted to the accused in offences under BNS 2023 and POCSO Act given the alleged facts.
- Whether the statutory presumption under Section 29 of the POCSO Act applies at the pre‑trial bail stage.
- Whether the alleged consent of a minor can be considered a mitigating factor for bail.
- Whether inconsistencies in the victims' statements defeat the prosecution's prima facie case.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 483
- Bharatiya Nyaya Sanhita, 2023 — s. 69, 70
- Protection of Children from Sexual Offences Act, 2012 — s. 29, 4, 8
Subjects
- bail
- consent
- POCSO Act
- minor
- presumption
- inconsistencies
- sexual offences
- Bharatiya Nyaya Sanhita
- criminal procedure
Judgment
5.BA.3374.2026.odt
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3374 OF 2026
Nilesh @ Papya Shrikant Patil .. Applicant
Versus
The State of Maharashtra and Anr. .. Respondents
....................
Mr. Aniket Vagal a/w Ms. Savvy Kolhekar a/w Ms. Juhi Kadu,
Advocates for Applicant.
Mr. Sukanata A. Karmakar, APP for the Respondent No.1 - State.
Ms. Saili N. Dhuru, Advocate for Respondent No.2.
Ms. Reshma Mahadev Dadas, PSI, Alibaug Police Station present.
...................
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 23, 2026
P. C.:
1. Heard Mr. Vagal, learned Advocate for Applicant, Mr.
Karmakar, learned APP for Respondent No.1 – State and Ms. Dhuru,
learned Advocate for Respondent No.2.
2. This is an application filed under Section 483 of Bharatiya
Nagarik Suraksha Sanhita, 2023 seeking enlargement on bail in
connection with Special Case No. 13 of 2026 and C.R. No. 7 of 2026
registered in Alibaug Police Station for the offences punishable under
Sections 69 and 70 of the Bharatiya Nyaya Sanhita, 2023 (for short
“BNS,2023”) and Sections 4 and 8 of Protection of Children from
Sexual Offences (POCSO) Act, 2012.
3. Briefly stated that, Applicant in the present case is 33
years old whereas victims - Prosecutrix Nos. 1 and 2 are sisters, who
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are 18 and 16 years of age respectively. Prosecutrix No. 1 was working
at Ankur Dry Fruit Mall when she got acquainted with Applicant at his
cloth shop at Khandale village and thereafter they met regularly. It is
alleged that in the month of December 2025, Applicant had physical
relations with Prosecutrix No.1 in a lodge under pretext of marriage.
3.1. It is prosecution’s case that on 12.01.2026 when
Prosecutrix No.1 brought up the topic of marriage with Applicant, he
outright refused to marry her. On 14.01.2026, Prosecutrix No.1 filed
First Information Report being C.R. No. 7 of 2026 for offence
punishable under Sections 69 and 70 of BNS, 2023 and Sections 4 and
8 of POCSO Act. On 15.01.2026 Applicant was arrested and was
produced before Special judge. It is prosecution case that Applicant
and Accused No.2 also had physical relation at a place in Kashid Beach
Resort.
3.2. On 15.01.2026, Applicant was arrested and was
remanded to police custody until 19.01.2026 which was extended
until 23.01.2026. On 23.01.2026, 3 more accused persons namely
were added.
4. Mr. Vagal, learned Advocate for Applicant would submit
that the Applicant is arrested merely on the basis of suspicion and
there is no reliable evidence to connect Applicant to the alleged
offences.
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4.1. He would refer to and rely on the decision of the
Supreme Court in State of Uttar Pradesh Vs. Anurudh and Anr. 1 and
submit that presumption under Section 29 does not apply at pre-trial
bail stage. He would submit that the presumption becomes operative
only once the trial begins and foundational facts are established
through evidence. He would submit that the right of accused to
contest this presumption and present a defence cannot be curtailed at
the bail stage.
4.2. He would submit that Prosecutrix No.1 has changed her
story from time to time with different allegations. He would submit
that there is a stark discrepancy between contents of the
supplementary statement and contents in the FIR.
4.3. He would submit that Prosecutrix No.1 has alleged that
she has had physical relations with Applicant at various locations,
however in her Supplementary Statement dated 20.01.2026, she was
unable to name any of those locations. Hence he would persuade the
Court to consider the overall material prima facie and allow the
present Application.
5. Mr. Karmakar, learned APP for Respondent No.1 – State
would submit that age of Prosecutrix No.2 was of limited
understanding and she was a victim of assault committed by Applicant
who was a major and therefore Applicant does not deserve any
1 2026 DGLS(SC) 44
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leniency. He would submit that Applicant took advantage of the
vulnerability of the minor despite knowing that she was a student and
forced himself upon her and therefore should not be released on bail.
He would therefore urge the Court to dismiss the Application.
6. Ms. Dhuru, learned appointed Advocate for Respondent
No.2 would adopt the submissions of Mr. Karmakar and would urge
the Court to deny grant of bail to Applicant on account of severity of
crime against a minor committed by him.
7. I have heard the submissions made by learned Advocates
appearing for the respective parties 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. There are three prima facie reasons / circumstances
which impel me to consider the Bail Application of Applicant. Firstly,
the stark and material discrepancies noted between the initial story in
the FIR and the supplementary statements recorded later, wherein the
Prosecutrix No.1 has consistently shifted her narrative introducing
contradictory allegations. Prima facie there is a clear improvement in
her supplementary statement given by her which raises substantial
doubt.
9. The Supreme Court in the case of Mahesh Damu Khare
vs. State of Maharashtra & Anr.2 in paragraph No.27 held that a
2 2024 INSC 897
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prolonged duration of a physical relationship between two adults
without prior insistence or protest regarding marriage indicates a
consensual relationship rather than one rooted in deception.
Paragraph No.27 is reproduced below:-
“27. Thus, from the above it appears that it is more of
an extra-marital affair during the aforesaid period without
any insistence by the complainant for getting married to the
appellant. The fact that the complainant continued to have a
physical relationship for a long time without any insistence
on marriage would indicate the unlikelihood of any such
promise made by the appellant for marrying her and it rather
indicates that the relationship was a consensual one.
In our opinion, the longer the duration of the physical
relationship between the partners without protest and
insistence by the female partner for marriage would be
indicative of a consensual relationship rather than a
relationship based on false promise of marriage by the male
partner and thus, based on misconception of fact.”;
10. In another decision of the Supreme Court in Pramod
Suryabhan Pawar vs. State of Maharashtra (Supra) in paragraph No.18
it held as under:-
“18. To summarise the legal position that emerges
from the above cases, the “consent” of a woman with respect
to Section 375 must involve an active and reasoned
deliberation towards the proposed act. To establish whether
the “consent” was vitiated by a “misconception of fact”
arising out of a promise to marry, two propositions must be
established. The promise of marriage must have been a false
promise, given in bad faith and with no intention of being
adhered to at the time it was given. The false promise itself
must be of immediate relevance, or bear a direct nexus to the
woman's decision to engage in the sexual act.”
11. The facts in this case are squarely covered by the above
ruling and conclusion in the decision of the Supreme Court. In present
case, over a period of 1 year and 5 months (August 2024 to December
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2025) the Prosecutrix No.1 volunteered on her own volition and went
out with Applicant on several occasions and had physical relation with
him consensually. It is seen that there is no material appended on
record to show that such relations were because of Applicant
practicing deceit to marry her or by Applicant making any false
inducement to marry her. No element of force, violence, abuse or
deceit is either involved.
12. Perusal of statement of Prosecutrix No.1 dated
13.01.2026, appended at page No. 82 to the Application states that
Prosecutrix No.1 infact had a love relation with the Applicant. Prima
facie it is seen that Prosecutrix No.1 remained silent until January
2026 upto which she was otherwise behaving normal is what intrigues
the Court. It is seen that that there is substantial improvement in her
statement recorded later and it is seen from the statements recorded
by prosecution that there were a consensual relationship between the
Applicant and Prosecutrix No.1 which is confirmed by the Prosecutrix
No.1 herself. Hence, it is seen that the relationship over 17 months
was prima facie consensual and Prosecutrix No.1 has failed produce
any prima facie evidence of any deceitful intention of Applicant, the
FIR seems to have been filed because of emotional distress that
Applicant failed to perform his promise of marrying her which compels
me to consider the Applicant’s case for grant of bail.
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13. Thirdly, Prosecutrix No.1 has failed to specify the precise
date, time, or place of the alleged non-consensual act Applicant had
sexual intercourse with her in supplementary statement dated
23.01.2026 appended at page No. 210 of the Application, thereby
demonstrating a total absence of prima facie evidence and therefore
the allegations in the FIR are entirely bald, vague, and
unsubstantiated. Consequently, the continued incarceration of the
Applicant on basis of allegations made by Prosecutrix violates the
principles of natural justice and Article 21 of the Constitution of India.
14. Insofar as Prosecutrix No.2 is concerned, she is the
younger sister of Prosecutrix No.1. She is 16 years of age. She has
alleged one single episode / incident in November 2024 at Murud
attributing assault on her by Applicant in her statement recorded on
14.01.2026. No details whatsoever are stated in their statement. In
her supplementary statement dated 22.01.2026 no details are recalled
about the lodge name of the first incident in November and on
additional incident in December 2024 at Karli Khind Padi, Parelgaon is
alleged. Once again except of the allegation of incidents are stated
whatsoever. Further this statement is improved substantially by
Prosecutrix No.2 on the same day itself stating and alleging that
during the November incident, apart from Applicant, other accused
persons who are Applicant’s friends also outraged her modesty one by
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one on entering the room. The statements made by Prosecutrix No.2
prima facie when read to not inspire any confidence of Court in the
absence of any corroborative material placed before Court qua the
allegations made therein.
15. The Prosecutrix Nos.1 and 2 both have also alleged in
their supplementary statement that during the November incident,
three other girls were their collegues at work were also involved, but
the statement of the said 3 girls is to the contrary and they outrightly
reject the wild allegations made by Prosecutrix Nos.1 and 2 and infact
confirm the fact that Applicant and Prosecutrix No.1 were in a love
relationship which was known to everybody.
16. 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 3 to contend that
consent 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:-
3 Bail Application No. 1036 of 2015, decided on 03.08.2015.
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“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. ...
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.
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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.”
17. Next, the decision of this Court (Coram: Sandeep K.
Shinde, J.) in the case of Anirudha Radheshyam Yadav Vs. The State
of Maharashtra4 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).”
18. There is no doubt that presumption under Section 29 of
POCSO Act exists but it is not an absolute presumption. This Court is
4 Criminal Bail Application No.2632 of 2019 decided on 09.01.2020
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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 Prosecutor5 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
5 2019 SCC OnLine Ker 783.
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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 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.”
19. In the facts of the present case delineated herein, in view
of the serious inconsistencies in the statements of both the
Prosecutrices and admission by Prosecutrix No.1 about her love
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relationship with Applicant, I am inclined to grant bail to the Applicant
on the following terms:-
(i) Applicant - Nilesh @ Papya Shrikant Patil is
directed to be released on bail on furnishing P.R.
Bond in the sum of Rs.25,000/- with one or two
sureties in the like amount;
(ii) Applicant shall report to the Investigating Officer
of the Alibaug Police Station once every month on
the third Sunday between 10:00 a.m. to 12:00 p.m.
for the first one year and thereafter as and when
called;
(iii) 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 cancellation of
this order;
(iv) Applicant shall not leave the State of Maharashtra
without prior permission of the Trial Court;
(v) Applicant shall not influence any of the witnesses
or tamper with the evidence in any manner;
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(vi) 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;
(vii) Applicant shall not attempt to contact the
Prosecutrix either physically or by any electronic
devices / means until the trial is completed and the
verdict is delivered by the Trial Court; and
(viii) Any infraction of the above conditions shall entail
the prosecution to seek cancellation of this order.
20. 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.
21. Bail Application is allowed and disposed.
Amberkar [ MILIND N. JADHAV, J. ]
Digitally signed
by AJAY
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2026.09.23
14:41:48 +0530
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