Bombay High Court
VAIBHAV DNYANOBA KUSALversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
Bail is granted to the applicant subject to strict conditions.
Summary
The applicant, a father and press photographer, was charged under Section 75 of the Bharatiya Nyaya Sanhita, 2023 and Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 for an alleged sexual offence against his minor daughter. The FIR was lodged on 5 July 2026, alleging an incident that supposedly occurred in March 2025, creating an unexplained delay of about 15 months. The applicant had earlier obtained anticipatory bail in a related matrimonial dispute (Cr. No.271 of 2026) and the present FIR was filed only 12 days after that order, leading the defence to argue that the complaint was a retaliatory move. The prosecution highlighted the seriousness of the offence, the possibility of the applicant tampering with evidence, and presented WhatsApp chats as incriminating, though the court found them insufficient at the bail stage. Balancing the gravity of the charge against the lack of specific evidence and the delay, the court held that bail should be granted with stringent conditions to prevent interference with the investigation and trial.
Issues considered
- What is the appropriate exercise of discretion under Section 439 CrPC in granting bail for a serious child sexual offence where there is a long delay in filing the FIR?
- Does the prior anticipatory bail and the timing of the FIR suggest the complaint is retaliatory, affecting the bail decision?
- Can the alleged WhatsApp chats be considered sufficient evidence to deny bail at this stage?
Legislation cited
- Bharatiya Nyaya Sanhita, 2023 — s. 75
- Code of Criminal Procedure, 1973 — s. 439
- Indian Penal Code — s. 498A
- Protection of Children from Sexual Offences Act, 2012 — s. 12, 8
Subjects
- bail
- Section 439 CrPC
- POCSO Act
- delay in FIR
- anticipatory bail
- child sexual offence
- evidence evaluation
- tampering of evidence
- court conditions
Judgment
32.BA.3412.2026.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.3412 OF 2026
Vaibhav Dnyanoba Kusal .. Applicant
Versus
State of Maharashtra and Another .. Respondents
....................
Mr. Nitin Gaware Patil a/w. Mr. Harsh Rathod and Mr. Prithviraj
Mundwadkar, Mr. Prashant Hagare and Ms. Ekta Patil, Advocates
for Applicant.
Mr. Sukanta Karmakar, APP for Respondent – State.
Ms. Ekta Patil i/b. Mr. Prashant Hagare, Advocates for Respondent
No.2.
Ms. Mohini Dongre, PSI – Chinchwad Police Station.
................…
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 18, 2026
P.C.:
1. Heard Mr. Gaware - Patil, learned Advocate for Applicant,
Mr. Karmakar, learned APP for Respondent – State and Ms. Patil,
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.289 of
2026 registered with Chinchwad Police Station, Pune for the offences
punishable under Sections 75 of the Bharatiya Nyaya Sanhita, 2023
read with Sections 8 and 12 of Protection of Children from Sexual
Offences Act, 2012.
3. On the previous date, after hearing the learned Advocates at
the bar the following order was passed:-
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“1. Heard Mr. Gaware-Patil, learned Advocate for Applicant and Ms.
Gotad, learned APP for Respondent No.1 – State.
2. Applicant is father of the victim arraigned as Respondent No.2.
First Informant is wife. Date of registration is 05.07.2026. With
regard to the incident about which no specific date has been even
stated in the First Information Report (for short ‘FIR’) and which
relates to some time in March – 2025, It is alleged according to the
prosecution case that Applicant – father while dropping his minor
daughter to the School sometime in March – 2025 committed an
aberration / act for which he has been indicted in relevant Sections
under the Bharatiya Nyaya Sanhita, 2023 and the Protection of
Children from Sexual Offences Act, 2012. I have perused the FIR with
the able assistance of Mr. Gaware-Patil.
3. The First Informant states that she learnt about it from the child
on the very same date in the evening but in that case then the delay of
more than 16 months is inexplicable. During the intervening period
between the above two aforementioned timeline dates, judicial
separation proceedings initiated in the Family Court between First
Informant and Applicant as also a complaint under Section 498-A of
the Indian Penal Code, 1860 (for short ‘IPC’) filed by First Informant
merely 12 days before filing of the present FIR wherein Applicant had
secured ad-interim order in Anticipatory Bail Application happened.
The present FIR was registered on 05.07.2026 and since then for the
past few months Applicant is behind bars.
4. Applicant is a press photographer by profession. Principal
submission made by Mr. Gaware-Patil is that present FIR is nothing but
a counter blast to the previous FIR filed under Section 498A of the IPC
filed by First Informant where the Applicant procured interim / ad-
interim relief from arrest.
5. An arguable case is clearly made out by Mr. Gaware-Patil for
immediate intervention by the Court. Hence, I direct Mr. Gaware-Patil
to forthwith give a copy of this Application alongwith this order to the
concerned Investigating Officer. The concerned Investigating Officer is
directed by the Court to reach out to the Respondent No.2 copy of this
order and obtain her consent as to whether she requires legal
representation or otherwise to represent and espouse the cause of
victim herein. If not, she is directed to appoint her Advocate. The
same shall be apprised to this Court through the learned APP on the
next adjourned date. The aforesaid exercise be carried out by the
concerned Investigating Officer and learned APP shall take appropriate
instructions with regard to consent of Respondent No.2 and inform the
Court on the next adjourned date.
6. Any attempt made by Respondent No.2 to delay hearing of the
present matter will not be tolerated by this Court which shall be noted
by her and the prosecution. Considering these aforementioned strong
facts, this Court is inclined to take up the matter for hearing
accordingly.
7. Stand over to 16th September 2026. To be placed under the
caption ‘For Directions’ under the caption “First on Board”.”
4. Mr. Gaware – Patil, learned Advocate appearing for
Applicant would submit that Applicant has been falsely implicated in
the alleged offence. He would submit that there is an unexplained
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delay of fifteen (15) months in filing the FIR which brings prosecution
case under the cloud of suspicion. He would submit that it is necessary
for the Court to consider the precursor to this incident wherein the
Applicant and First Informant are already engaged in prior criminal
proceedings bearing C.R. No.271 of 2026 lodged at the instance of
First – Informant against Applicant and his family members. He would
submit that by order dated 23.06.2026, Sessions Court granted
Anticipatory Bail to Applicant. He would submit that pursuant to grant
of Anticipatory Bail, within a short span of 12 days of the said order
this present FIR is filed thereby being nothing but a counter blast to
the previous FIR and the Applicant having procured Anticipatory Bail.
He would submit that present FIR is outcome of ongoing matrimonial
discord between Applicant and First – Informant. He would submit
that no corroborative evidence has been recovered at the instance of
the Applicant. He would submit that in absence of exact date and time
of the incident further weakens the prosecution case. 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 the minor daughter (victim). He would submit
that there are serious allegations against the Applicant and hence
considering the gravity of offence this Court maybe cautious in
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allowing the Bail Application. He would submit that Applicant being
the father of minor daughter (victim) 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. Patil, 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 there are incriminating WhatsApp
chats between Applicant and First – Informant which display the
character of the Applicant which be considered by the Court. She
would therefore urge the Court to reject the present Bail Application.
7. I have heard Mr. Gaware - Patil, learned Advocate for
Applicant, Mr. Karmakar, learned APP for Respondent – State and Ms.
Patil, 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. At the outset, on perusal of the FIR, it is seen that
considering the alleged crime being serious in nature and even after
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the minor daughter (victim) having informed the First Informant on
that very day itself and First Informant having stated so in the FIR, she
chose to stay quiet for a period of 15 months which is difficult to
comprehend. Prima facie, there is an unexplained delay of about 15
months in setting the criminal law into motion in such a serious charge
which borders on suspicion. The FIR does not disclose any specific
date or time when the alleged incident is stated to have occurred and
merely refers to the incident as having taken place sometime in March
2025. At the stage of considering the present Application the
unexplained delay assumes significance when considered in the
backdrop of the admitted matrimonial discord between Applicant and
First Informant and the criminal proceedings which were already
pending between them.
9. It is also material to note that C.R. No.271 of 2026 came to
be registered at the instance of the First Informant against the
Applicant and his family members under Section 498A and other
offences. Applicant was granted Anticipatory Bail by the learned
Sessions Court by order dated 23.06.2026. The present FIR was
registered on 05.07.2026, i.e. within a period of 12 days from the said
order. This proximity in time, coupled with the substantial and
unexplained delay in reporting the alleged incident is a circumstance
which cannot be completely disregarded while considering the
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Applicant's case for bail.
10. Further, the FIR does not attribute the alleged incident to
any particular date, time or occasion. The allegation is stated to have
occurred sometime in March 2025 when Applicant was allegedly
dropping the victim to school. The absence of any particulars as to the
date and time of the alleged occurrence assumes significance,
particularly when the FIR itself records that the First Informant came
to know of the alleged incident from the victim on the very same day.
Despite such knowledge, no immediate complaint was lodged and no
explanation sufficient to account for the intervening period of about
15 months is placed before the Court.
11. With regard to the WhatsApp chats allegedly exchanged
between Applicant and First Informant is considered, I am of the
opinion that they do not hold significance at this stage merely because
certain chats relate to acts between Applicant and First Informant and
the same by themselves cannot establish that the alleged incident
constituting the offence under the provisions of the POCSO Act had in
fact occurred. The contents of such communications would necessarily
have to be appreciated in the context of the entire material collected
during investigation and their evidentiary value is a matter to be
considered at stage of trial. At the stage of bail, such chats without any
independent corroborative material directly connecting Applicant with
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the alleged occurrence cannot be considered and also cannot be a
ground to justify his continued incarceration.
12. It is trite law that while considering an Application for bail,
the Court is not expected to conduct a meticulous examination of the
evidence or undertake an elaborate appreciation as would be required
at the stage of trial. The Court is required to consider the nature of the
accusations the material collected during investigation the possibility
of the Applicant fleeing from justice or tampering with evidence and
the other relevant circumstances. The gravity of the alleged offence is
undoubtedly a relevant consideration. However, gravity alone cannot
be the sole determinative factor for deciding an Application for bail.
13. Further, the apprehension expressed by the learned APP
regarding the possibility of Applicant influencing the victim or other
witnesses can be taken care of by imposing appropriate stringent
conditions restraining Applicant from contacting the minor daughter
(victim), First Informant or any prosecution witness.
14. In view of the above, I am of the considered opinion that
Applicant has made out a case for grant of bail. The continued
incarceration of Applicant, in the facts and circumstances of the
present case, is not warranted.
15. Hence, in view of above prima facie observations and
finding, Bail Application of Applicant is allowed subject to the
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following terms and conditions:-
(i) Applicant is directed to be immediately released from
prison in connection with CR. No.289 of 2026;
(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
amount;
(iii) Applicant shall report to the Investigating Officer at
Chinchwad 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
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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
occurs; and
(viii)Any breach or infraction of any of the aforesaid
conditions shall entail cancellation of the bail granted
to the Applicant.
16. 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.
17. Bail Application is allowed and disposed in the above terms.
Ajay [ MILIND N. JADHAV, J. ]
Digitally signed
by AJAY
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date:
2026.09.19
11:52:54 +0530
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