Bombay High Court

DEVESH RAVINDRA SAWANTversusSTATE OF MAHARASHTRA AND ANR

Decided: 7 October 2026
Disposal: Allowed

Holding

The court held that, given the prima facie doubts and the non‑absolute nature of the Section 29 presumption, bail must be granted to the accused.

Summary

The High Court considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita on behalf of Devesh Ravindra Sawant, accused of multiple offences under the Bharatiya Nyaya Sanhita and the POCSO Act for alleged sexual activity with a 14‑year‑old girl. The victim claimed a consensual relationship via Instagram and physical encounters at a friend’s house, but her testimony conflicted with statements from her grandfather and the house owner, and the medico‑legal report did not support the prosecution’s case. The court noted that the Instagram chats with the co‑accused indicated the victim’s awareness, and that the presumption of guilt under Section 29 of the POCSO Act is not absolute and must be supported by substantive facts. Citing precedents on consent, the age of consent, and the limited scope of statutory presumption, the court found a prima facie doubt regarding the victim’s allegations. Consequently, the court ordered the release of the applicant on bail with standard conditions.

Issues considered

Whether bail should be granted to the accused in a POCSO case where the alleged victim alleges consensual conduct.
Whether the statutory presumption of guilt under Section 29 of the POCSO Act applies in the present facts.
Whether the contradictions in the victim’s testimony, the house‑owner’s statement, and the medico‑legal report create reasonable doubt sufficient to justify bail.
Whether the alleged consent of a minor under the circumstances negates the elements of the offences charged.

Legislation cited

Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 483
Bharatiya Nyaya Sanhita, 2023 — s. 3(5), 351(2), 6(2)(i), 64(2)(m), 65(1), 75(2), 78(2)
Protection of Children from Sexual Offences Act, 2012 — s. 12, 29, 35, 4, 6, 8

Subjects

bail
POCSO
consent
minor
Section 29 presumption
contradictory evidence
medico‑legal report
Instagram chat
sexual offences
age of consent

Judgment

BA.3605.2026.doc

Ajay

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3605 OF 2026

Devesh Ravindra Sawant .. Applicant
Versus
State of Maharashtra and Anr. .. Respondents
....................
 Mr. Ganesh Gole a/w. Ateet Shirodkar, Advocates for Applicant.
 Ms. Keral Mehta, appointed Advocate for Respondent No.2
 Mr. Yogesh Najhwa, APP for Respondent – State.
 Mr. Salman Khatib – PSI Roha Police Station Raigad
......…...........
CORAM : MILIND N. JADHAV, J.
DATE : OCTOBER 07, 2026.
P.C.:

1. Heard Mr. Gole, learned Advocate for Applicant, Ms. Mehta

learned Advocate for Respondent No.2 and Mr. Nakhwa, learned APP

for Respondent No.1– State.

2. Present Application is filed under Section 483 of Bharatiya

Nagarik Suraksha Sanhita, 2023 by Applicant seeking enlargement on

bail in connection with C.R. No.I-22 of 2025 registered with Roha

Police Station, Raigad for the offences punishable under Sections 6(2)

(i), 64(2)(m), 65(1), 75(2), 78(2), 351(2) read with Section 3(5) of

Bharatiya Nyaya Sanhita, 2023 and Sections 4,6,8 and 12 of Protection

of Children from Sexual Offences Act, 2012.

3. The Applicant herein is arraigned as Accused No.1. There are

2 accused persons in the present crime. Applicant is 26 years old

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whereas Respondent No.2 – Victim is 14 years old at the time of

incident. FIR is lodged on 11.06.2025. Case of the First Informant –

Victim against both the accused persons is on a different footing but

with respect to the same crime. Accused No.2 has already been

enlarged on bail. In this Application, only Accused No.1 is concerned.

According to First Informant, Applicant used to chat with her on

Instagram from January 2025 onwards and both Applicant and First

Informant were admittedly in a love relationship with each other.

Applicant has specifically so stated in the FIR. She has next stated she

had a breakup in April 2025 but within 4 days thereafter immediately

patched up and continued friendship and love relationship with

Applicant. Next she has alleged that on 3 specific dates, between

02.06.205 and 08.06.2025, Applicant called her to a house belonging

to his friend which was situated opposite her house and both of them

had physical relationship when no one was present in the said house.

Thereafter First Informant has stated that she befriended Accused No.2

on Instagram and at his behest continued chatting with him by viewing

the contentious adult content sent by Accused No.2. On this basis First

Information Report is filed by the mother of Respondent No.2 - victim.

4. I have considered the material placed before me and also

heard the learned appointed advocate Ms. Mehta for the First

Informant.

5. It is seen that victim herself has admitted about she being in

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a love relationship with the Applicant for more than 5 and half months.

What is crucial is that the victim’s version in the FIR is contradictory to

the specific version narrated by the grandfather of the victim whose

mobile phone was used by the victim for chatting and establishing

contact with both the accused persons. Statement of grandfather is

appended at page No.124 and certain material details are stated

incorrectly therein. Next it is seen that statement of independent

witness, copy of which is appended at page No. 123, who is the owner

of the house where the multiple episodes occurred has categorically

stated that the said house was under renovation and under

construction for the past 4 years and in an incomplete state with no

one residing therein. The statement of the grandfather and the victim

therefore does not reconcile with the statement of the owner of the said

house, when they state that the episodes occurred inside the friend’s

house when no one was present in the house behind the locked door.

6. Further two issues prima facie persuade me to consider the

case of the Applicant for bail. One is the Instagram chat between the

victim and Accused No.2 which prima facie show that victim was fully

aware about her actions about taking protection while committing the

said Act and second, most importantly the Medico – Legal History, copy

of which is appended at page Nos.80, 83 and 86 which does not

support the case of the victim itself, and the prosecution at all. Once I

have read the aforesaid, there is prima facie doubt with regard to the

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statement of the victim hence Applicant has made out a case for grant

of bail.

7. As held by this Court in the case of Sunil Mahadev Patil Vs.

State of Maharashtra1 it is true that a wrong doer is to be punished,

guilty is to be convicted. However at the stage of bail, Court has to

consider prima facie under what circumstances the offences are

committed by the accused. The offence of rape can be distinguished on

the basis of the intention of the accused. In the aforesaid judgment the

learned Court summed up the ethos of relationship between young

boys and girls aptly in paragraph No.11 of the said judgment which

reads thus:-

“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.”

8. While sitting as a Bail Court what I have experienced is that
1 BA No.1036 of 2015 – Decided on 03.08.2015

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public prosecutors oppose bail pleas vehemently even in the cases of

long incarceration pending trial under the mistaken impression that the

crime in question is serious and therefore the Court should not grant

bail to the accused person. This mindset and approach of the

prosecution needs to change. It is observed that in cases under POCSO,

the statute itself provides a speedy trial within 1 year under Section 35

of the POCSO Act, but that is seldom achieved. Even in such cases

where trials are pending over many years without even being

commenced, the prosecutors raise vehement objection to Bail

Applications on the ground of severity of the crime.

9. Next the decision of this Court (Coram: Sandeep K. Shinde,

J.) in the case of Anirudha Radheshyam Yadav Vs. The State of

Maharashtra2 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).”

10. There is no doubt that presumption under Section 29 exists

2 Criminal Bail Application No.2632 of 2019 decided on 09.01.2020

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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 Kerela

Represented through the Public Prosecutor3 in a similar case where age

of prosecutrix as 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

3 2019 SCC OnLine 783.

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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
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.”

11. The Supreme Court in the above case has hastened to add

that the accused person is still an under-trial prisoner and not a convict

and the overarching postulate of criminal jurisprudence that an accused

is presumed to be innocent until proven guilty cannot be brushed aside

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lightly however stringent the law may be.

12. In view of the aforesaid facts emanating from record which

show consensualness of victim as also in view of the prima facie case

made out by the learned Advocate for Applicant, I am inclined to

release the Applicant on bail.

13. In view of the above the following order is passed:-

(i) Applicant is directed to be immediately released on bail

from prison in connection with C.R. No.I-22 of 2025;

(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 sureties in the like amount;

(iii) Applicant shall report to the Investigating Officer at

concerned Police Station, once every month on the first

Sunday of the month between 10:00 a.m. to 12:00 p.m.;

(iv) 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 revocation of this order;

(v) Applicant shall not leave the State of Maharashtra

without prior permission of the Trial Court;

(vi) Applicant shall not influence any of the witnesses or

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tamper with the evidence in any manner;

(vii) 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, as applicable; and

(viii) Any infraction of the conditions shall entail cancellation

of bail granted to the Applicant.

14. Needless to state that the above observations will not come in

the way of trial as they are prima facie in nature based on the

submissions made and the material placed before this Court.

15. This Court appreciates the assistance rendered by Ms. Mehta,

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 v. The State of

Maharashtra & Anr.4 and the Schedule under Regulation 18(1) of the

Maharashtra State Legal Services Authority Rules, 1998.

16. Bail Application is allowed and disposed of in the above

terms.

Digitally signed
AJAY
TRAMBAK
by AJAY
TRAMBAK
[ MILIND N. JADHAV, J. ]
UGALMUGALE
UGALMUGALE Date: 2026.10.07
20:54:35 +0530

Ajay

4 Judgment dated 25.09.2024 passed in Misc. Civil Application No. 134 of 2024

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