Created by Fuzzy Cloud

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

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:-

                                                                           1 of 9
                                                                     32.BA.3412.2026.doc


         “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

                                                                                     2 of 9
                                                        32.BA.3412.2026.doc


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



                                                                    3 of 9
                                                        32.BA.3412.2026.doc


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


                                                                    4 of 9
                                                         32.BA.3412.2026.doc


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



                                                                     5 of 9
                                                         32.BA.3412.2026.doc


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


                                                                     6 of 9
                                                         32.BA.3412.2026.doc


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

                                                                     7 of 9
                                                         32.BA.3412.2026.doc


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



                                                                     8 of 9
                                                                                      32.BA.3412.2026.doc


                                              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




                                                                                                  9 of 9


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.