Bombay High Court
WALI MOHAMMAD AJMUDDIN MULANIversusTHE STATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Disposed Off
Holding
Bail is granted to the accused subject to strict conditions, as the presumption under Section 29 POCSO is not absolute and the facts indicate a consensual, non‑violent relationship.
Summary
The Bombay High Court considered a bail application under Section 439 CrPC filed by a 22‑year‑old accused arrested for offences under the Bharatiya Nyaya Sanhita, the POCSO Act, the IT Act and the SC/ST (Prevention of Atrocities) Act. The prosecutrix, a 16‑year‑old girl, alleged a consensual relationship with the accused, with no evidence of violence, coercion or intimidation. The Court examined the presumption of guilt under Section 29 of the POCSO Act, noting that it is not absolute and must be supported by factual foundations. Relying on precedents such as S. Varadarajan, Sunil Mahadev Patil, Anirudha Radheshyam Yadav, Joy and others, the Court held that the minor’s apparent consent and the absence of violent conduct constitute mitigating factors. Consequently, the Court granted bail with stringent conditions, emphasizing the need for reformative treatment of the young accused while reserving the right to cancel bail for any breach.
Issues considered
- Whether the presumption of guilt under Section 29 of the POCSO Act precludes bail in a case involving a consensual relationship with a minor.
- Whether the consent of a minor aged 16‑years can be considered a mitigating factor for bail.
- Whether the nature of the alleged offences (absence of violence, coercion, or threat) justifies the grant of bail.
- Whether the risk of tampering with evidence or influencing witnesses warrants denial of bail.
Legislation cited
- Bharatiya Nyaya Sanhita, 2023 — s. 137(2), 336, 338, 340(2), 3(5), 351(2), 352, 64, 64(M), 69
- Code of Criminal Procedure, 1973 — s. 439
- Information Technology Act, 2000 — s. 66(D), 67
- Protection of Children from Sexual Offences Act, 2012 — s. 12, 16, 4, 8
- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 — s. 3(1)(r)(s)(W(i)), 3(2)(va)
Subjects
- bail
- POCSO Act
- minor consent
- sexual offences
- Section 29 presumption
- criminal procedure
- youth offender
- rehabilitation
Judgment
BA.739.2026.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.739 OF 2026
Wali Mohammad Ajmuddin Mulani .. Applicant
Versus
State of Maharashtra and Another .. Respondents
....................
Mr. Sachin P. Rajepandhare, Advocate for Applicant.
Mr. Sukanta Karmakar, APP for Respondent – State.
Ms. Priyanka Bhoite, appointed Advocate for Respondent No.2
...................
CORAM : MILIND N. JADHAV, J.
DATE : SEPTEMBER 16, 2026
P.C.:
1. Heard Mr. Rajepandhare, learned Advocate for Applicant;
Mr. Karmakar, learned APP for Respondent – State and Ms. Bhoite,
learned appointed 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.115 of
2025 registered with Khadak Police Station, Pune for the offences
punishable under Sections 137(2), 64, 64(M), 69, 336, 338, 340(2),
351(2), 352, 3(5) of the Bharatiya Nyaya Sanhita, 2023 read with
Sections 4, 8, 12, 16 of Protection of Children from Sexual Offences
Act, 2012 and Sections 66(D) and 67 of the Information Technology
Act, 2000 and Sections 3(1)(r)(s)(W(i)), 3(2)(va)of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
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3. This is Bail Application filed by Applicant who is arrested on
25.02.2025 and is incarceration since then. The age of the prosecutrix
is 16 years 3 months. I have heard Mr. Rajepandhare, learned
Advocate for Applicant; Mr. Karmakar, learned APP for Respondent –
State and Ms. Bhoite, learned appointed 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.
4. Perusal of the FIR and statement of prosecutrix, copy of
which is appended at page No. 26, prima facie shows that for more
than one (1) year prior to filing of the complaint, Applicant and
prosecutrix used to go out together on regular basis. According to
prosecutrix five (5) years before the filing of complaint in the year
2020, she had known the Applicant and befriended him as he was her
neighbour. She states that at that time they developed a bond of
friendship and used to meet each other regularly. Her own statement
also states that she had created an account with a fictitious name on
Instagram in her father’s mobile phone and both of them used to
regularly chat with each other. She herself states that because of her
deep friendship and closeness, Applicant prepared a bogus Aadhar card
of prosecutrix which she used while going out with him to various
place.
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4.1. Apart from the aforesaid statement there is one additional
statement at page No.194 which is recorded 2 weeks after the first
statement wherein it is stated that they both used to visit different
lodges / hotels in Khadakwalsa and Khed Shivapur areas of Pune and
keep physical relations with each other. The statement of mother of
prosecutrix is appended at page No.238 of the Application, perusal of
which prima facie shows that the mother was well aware about this
fact, one (1) year in prior to the registration of FIR. The statement
states that (1) year prior to the incident the parents of prosecutrix
visited the house of Applicant and apprised the issue to his parents,
despite which prosecutrix continued to meet and went out with the
Applicant regularly and kept physical relations with him. The
statement of the Lodge Manager and details of her Aadhar Card and
Hotel Register are all placed on record.
5. From the material placed on record it is seen that
relationship between the parties is consensual and most importantly
there is no element of violence, abuse or coercion used by the
Applicant.
6. In this regard, assistance is drawn from the decision of the
Supreme Court in the case of S. Varadarajan v. State of Madras1
wherein the Court in paragraph No.2 has held thus:-
1 AIR 1965 942
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“2. Where a minor girl alleged to be taken away by the accused
person, had left her father's protection knowing and having
capacity to know the full import of what she was doing and
voluntarily joined the accused, it could not be said that the
accused had taken her away from the keeping of her lawful
guardian within the meaning of section 361 of the Penal Code,
1860 (“IPC” for short). Something more had to be done in a
case of that kind, such as an inducement held out by the
accused person or an active participation by him in the
formation of the intention either immediately prior to the minor
leaving her father protection or at some earlier stage.”
7. Though the above referred case was decided well before the
POCSO Act was enacted, this Court is well conscious of the
presumption ingrained in Section 29 of the said Act and that argument
on prosecutrix’s consent is irrelevant but prima facie if the statements
of prosecutrix which are recorded are read, it is clearly borne out that
she has been consenting to the actions which is gathered from the
record of the case.
8. 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 Maharashtra2 to contend that consensus
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
2 Bail Application No. 1036 of 2015, decided on 03.08.2015.
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such Applications. Paragraph Nos.8, 9, 11 and 12 read thus:-
“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
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background, the trial Judge has to pass an order of bail in such
cases.
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.”
9. Next, the decision of this Court (Coram: Sandeep K.
Shinde, J.) in the case of Anirudha Radheshyam Yadav Vs. The State of
Maharashtra3 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
but it is not an absolute presumption. This Court is of the opinion that
3 Criminal Bail Application No.2632 of 2019 decided on 09.01.2020
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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 Prosecutor4 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 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
4 2019 SCC OnLine 783.
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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. Considering Applicant’s age, if he is enlarged on bail the
Court is hopeful that Applicant’s family will undoubtedly do their duty
to make every effort and attempt to reform and aid the Applicant in
leading a reformed life while on bail rather than keep them in prison
and expose him to criminal outlook and life in prison. However on the
flip side, if a chance is given to Applicant because of his young age by
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enlarging him on bail, there is a possibility that he will be remorseful
and repent in retrospect. This is a chance required to be taken by the
Court because punishment has to be believed to be inflicted for a
reformative result rather than being punitive in nature.
12. Undoubtedly the trial will determine the complicity of
Applicant in the offence. While considering Bail Application in such
facts, Court feels that reform and rehabilitation of the under trial
accused needs to be considered especially when age of the accused
person is young so that the accused person gets an opportunity / or is
given an opportunity to reform, rehabilitate and earn his livelihood
honorably from the perspective of social integration. This is a chance
which the Court must take considering the young age of accused
person. The age of Applicant is very young. If the Applicant is
incarcerated in prison further, there is every possibility that he might
lose faith in the institution and society at large and may tread the path
of criminality or would waste his life. Incarceration in prison
incidentally exposes many youth to abuse as is shown statistically.
13. There are several harms of incarceration which are inflicted
disproportionately on the youth. This is the reason why Court feels that
any / every semblance of a chance towards a reformative approach in
punishment should be adopted, especially in the case of young
offenders. Hence every opportunity or to that extent risk should be
constructively taken by the Court in the case of young offenders –
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accused before committing such accused to further custody and give
such accused an opportunity to become a good citizen in the Society.
These observations are only in the view of the young age of the
Applicant before me and it is only a means to explore an alternative to
incarceration so that the Applicant can become a good citizen.
14. In so far as offences punishable under Sections 4, 5 and 6 of
POCSO Act (special law) are concerned, it may be stated that the
provisions of this law are, though, stringent in nature, however it
would not deter the Court to grant or refuse bail in order to secure the
ends of justice more so when the trial has not commenced.
15. In so far as present case is concerned, it is prima facie borne
out from the record that prosecutrix was 16 years and 3 months old
whereas Applicant was 22 years old, that she repeatedly went out with
Applicant on her own volition and indulged in physical relationship on
multiple occasions without ever intimating her parents that she was
going out with Applicant, that she has confessed her love relationship
with Applicant and that there was no force or violence or deceit
practiced on her, are facts required to be considered. Facts of the
present case indicate that prosecutrix though not a major had sufficient
knowledge and capacity to know the full import of what she was doing
and had only thereafter voluntarily joined the Applicant on multiple
occasions.
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16. Hence, in view of above prima facie observations and
finding, Bail Application of Applicant is allowed subject to the
following terms and conditions:-
(i) Applicant is directed to be immediately released from
prison in connection with CR. No.115 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 surety of the like
amount;
(iii) Applicant shall report to the Investigating Officer at
Khadak Police Station, Pune, once every month, on the
first Monday of the month between 10:00 a.m. to 12:00
p.m. 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 State of Maharashtra
without prior permission of the Trial Court;
(vi) Applicant shall not influence any of the witnesses or
tamper with the evidence in any manner;
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(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.
17. 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.
18. 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:
2026.09.17
14:58:49 +0530
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