Bombay High Court
ZAHIR HARUN SHAIKHversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
The court held that a prima facie case exists for bail and consequently granted bail to both applicants with conditions.
Summary
The Bombay High Court considered two bail applications filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by Zahir Harun Shaikh and Azaruddin Shoukat Shaikh, accused in CR No.36 of 2026 for offences under the Bharatiya Nyaya Sanhita and the POCSO Act. The victim, now a 21‑year‑old adult, alleged kidnapping and assault, but earlier statements indicated a consensual relationship and a desire to marry the accused. The court noted a four‑year delay in the filing of the POCSO charge and examined prior anticipatory bail orders granted to other family members. After reviewing the material, the court found a prima facie case for bail, directing the prosecution to obtain the victim’s consent and imposing standard bail conditions. Both applicants were released on bail with a personal bond of Rs.10,000 each and specific reporting and non‑interference conditions.
Issues considered
- Whether bail should be granted to the accused despite serious charges including offences under the BNS and POCSO Act.
- Whether the four‑year delay in filing the POCSO charge defeats the bail application.
- Whether the victim’s earlier statements indicating a consensual relationship affect the bail determination.
- Whether the provisions of Section 483 BNSS are applicable to the present bail applications.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 483
- Bharatiya Nyaya Sanhita, 2023 — s. 137(2), 309(4), 3(5), 351(2), 64(2)(i)(m), 74, 75(2)
- Protection of Children from Sexual Offences Act, 2012 — s. 12, 4, 6, 8
Subjects
- bail
- anticipatory bail
- POCSO
- delay in prosecution
- prima facie case
- BNSS
- BNS
- criminal procedure
- Maharashtra
- victim statements
Judgment
70. BA-3751-26 & BA-2602-26.odt
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3751 OF 2026
Zahir Harun Shaikh .. Applicant
Versus
State of Maharashtra & Anr. .. Respondents
WITH
BAIL APPLICATION NO. 2602 OF 2026
Azar @ Azaruddin Shoukat Shaikh .. Applicant
Versus
State of Maharashtra & Anr. .. Respondents
....................
Mr. Gaurav Dnyandeo Kakade a/w Mr. Swapnil Pawar, Mr. Rohit
Jain, Mr. Suraj Pansare, Mr. Shankar Mudhal, Ms. Srushti More, Ms.
Mohini Sondekar & Mr. Shubham Jadhav, Advocates for Applicant
in BA 3751/26
Mr. Shivkumr S. Jangwad, Advocate for Applicant in BA 2602/26
Ms. Sangeeta E. Phad, APP for State
Mr. Himanshu Mane a/w Ms. Sanjana Shinde & Mr. Soham Bhosale
i/by Mr. Prakash Salsingikar, Advocates for Respondent No. 2
Mr. Amit Patil, PSI, Bhigwan Police Station, Pune Rural
...................
CORAM : MILIND N. JADHAV, J.
DATE : OCTOBER 9, 2026
P. C.:
1. Bail Application No. 2602 of 2026 is not listed on board.
However, considering that the same pertains to a co-accused (uncle of
the Applicant in BA 3751/26) in the same FIR, it is taken on board and
determined.
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2. Heard Mr. Kakade, learned Advocate for Applicant in BA
3751/26; Mr. Jangwad, learned Advocate for Applicant in BA 2602/26
& Ms. Phad, learned APP for State.
3. By the present Applications filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), Applicants -
accused are seeking bail in connection with C.R. No.36 of 2026
registered with Bhigwan Police Station, Pune Rural for the offences
punishable under Sections 137(2), 309(4) and 3(5) of the Bharatiya
Nyaya Sanhita 2023 (“BNS”) and subsequently, Sections 64(2)(i) (m),
74, 75(2), 351(2) of the BNS and Sections 4, 6, 8 and 12 of Protection
of Children from Sexual Offences Act, 2012 (‘POCSO Act’) were
added.
4. On 05.10.2026, after hearing Mr. Kakade, the following order
was passed in Bail Application No. 3751 of 2026:-
"1. Heard Mr. Kakade, learned Advocate for Applicant and Ms. Phad,
learned APP for Respondent No.1.
2. The Applicant has filed this Application for seeking bail. He is
arrayed as an Accused in C.R. No. 36 of 2026.
3. At the outset, Mr. Kakade has persuaded me to consider the contents
of the order passed by this Court while granting Anticipatory Bail to other
co-accused persons copies of which are appended at page page No.86 and
more specifically details of which are stated on page No.88. I have perused
the same with the able assistance of Mr. Kakade. The prosecutrix here is 21
years old and an adult. The Applicant happens to be her neighbour.
Allegation against the Applicant is that the Applicant had kidnapped her,
assaulted her but there is prima facie material placed on record to show
that the prosecutrix had herself wanted to marry the Applicant and had
made attempts to also elope with the Applicant on at least two to three
occasions which failed due to the presence of the elderly persons in the
family. Incident in question happened in a public place in the presence of
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the brother and the mother of the prosecutrix. Provisions of the Protection
of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) has also
been incidentally applied on the premise that in the year-2022, the
Applicant was 17 years old and a minor and therefore the Applicant is also
indicted.
4. However indictment of Applicant is after a hiatus of almost more
than 4 years which is prima facie seen from the record. Though delay may
not be fatal to the lodgment of the First Information Report under the
POCSO Act but each case turns on its own facts.
5. An arguable case is undoubtedly made out by Mr. Kakade for grant
of bail. However since there is an indictment under the POCSO, I direct
issuance of notice to Respondent No.2. Humdast permitted.
6. Learned APP appears in this present matter and waives service on
behalf of Respondent No.1.
7. Investigating Officer is directed by this Court to depute a responsible
lady Police Officer to serve copy of this order and Bail Application on
Respondent No.2 and / or legal guardian and obtain her consent as to
whether she requires legal representation through legal aid. The consent of
Respondent No.2 shall be apprised to the Court on the next adjourned date
through the learned APP. Let the aforesaid exercise be carried out within a
period of one week from today.
8. Considering the strong facts in the present case as argued by Mr.
Kakade, I am inclined to direct the prosecution to take steps immediately
and apprise the Court on the next adjourned date about the consent of
Respondent No.2.
9. A further order will be passed on 08th October 2026. To be placed
under the caption ‘First on Board’.
5. Incidentally, this Court had the opportunity of dealing with the
Bail Application of the younger brother of Applicant in BA 3793/26.
That Bail Application No. 3793 of 2026 was determined by this Court
on 07.10.2026 and the younger brother was granted bail. This Court
has referred to and relied upon the order dated 24.08.2026 passed in
Anticipatory Bail Application No. 1643 of 2026 of the uncle of the
Applicant in Bail Application No. 3751 of 2026. It is prima facie seen
that the victim is today adult when the present Application is filed but
she has alleged that when she was 17 years old, she was violated.
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Incidentally, it is seen that initially, the victim had filed a case of
kidnapping against the Applicant's family members. Thereafter, the
case of assault was also added and now after four years, the charge of
POCSO is added.
6. On the face of record, the order passed by the Coordinate Bench
(Coram : Madhav J. Jamdar, J.) while granting anticipatory bail to to
the family member of the Applicant had categorically returned a
finding that the victim has in her own statement recorded by the
police on 22.02.2026 stated that the relationship between the
families was extremely cordial and her own brother was the best
friend of accused No. 1 and most importantly, she having confessed
that she was having a love affair with the accused No. 1 and they both
intended and planned to marry each other but due to certain specific
reasons which I do not wish to delineate in my order, there was a fall
out.
7. Applicant in Bail Application No. 2602 of 2026 who is the uncle
of the present Applicant has also been roped in unfortunately by the
victim in the present case. The supplementary statements which are
recorded by the victim, the victim's mother are in fact contrary to the
victim's own statement which was recorded in February 2026 when
the victim was sent to the Government Shelter Home and there the
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police recorded her statement. The dichotomy is prima facie seen by
the Court.
8. In view of the above, prima facie case is made out for grant of
bail by both the Applicants. Hence, both the Applicants are granted
bail on the following terms and conditions:-
(i) Applicants are directed to be immediately released on
bail from prison in connection with C.R. No.36 of 2026;
(ii) Applicants are directed to be released on bail on
furnishing P.R. Bond of Rs. 10,000/- each (Rs. Ten
Thousand each) with one or two sureties in the like
amount;
(iii) Applicants 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) Applicants 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 they does so it will entitle the
prosecution to apply for revocation of this order;
(v) Applicants shall not leave the State of Maharashtra
without prior permission of the Trial Court;
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(vi) Applicants shall not influence any of the witnesses or
tamper with the evidence in any manner;
(vii) Applicants shall keep the Investigating Officer informed
of their 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 Applicants.
9. 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.
10. Both Bail Applications are allowed and disposed of in the above
terms.
Amberkar [ MILIND N. JADHAV, J. ]
Digitally
signed by
RAVINDRA
RAVINDRA MOHAN
MOHAN AMBERKAR
AMBERKAR Date:
2026.10.09
20:49:02
+0530
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