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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

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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