Bombay High Court
MASTAN ALI ABDUL SALIM SHAIKH @ AAYANversusSTATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Disposed Off
Holding
The court rejected the application for bail, finding no sufficient grounds to suspend the sentence.
Summary
The Special Judge convicted Mastan Ali Abdul Salim Shaikh under IPC Section 376 and Sections 4, 6, 8 and 12 of the POCSO Act for penetrative sexual assault of a 17‑year‑old girl, promising marriage, resulting in pregnancy and its termination. He was sentenced to ten years’ rigorous imprisonment and a fine. The appellant sought suspension of the sentence and bail pending his appeal, arguing that the victim was not a child and that he had already served more than three and a half years. The State opposed the bail, contending the victim was a minor and the appellant had no strong prospect of success on appeal. The High Court held that the birth certificate prima facie showed the victim was under 18, the DNA report confirmed parentage, and the appellant had not demonstrated a likelihood of success, therefore rejecting the bail application and ordering an expedited hearing of the appeal.
Issues considered
- Whether the appellant is entitled to bail or suspension of sentence pending the appeal.
- Whether the victim qualifies as a child under the POCSO Act.
- Whether the appellant has a strong chance of success on the appeal.
Legislation cited
- Indian Penal Code — s. 376
- Protection of Children from Sexual Offences Act, 2012 — s. 12, 4, 6, 8
Subjects
- bail
- suspension of sentence
- POCSO Act
- sexual assault
- minor victim
- appeal
- rigorous imprisonment
Judgment
18-IA-3503-2024.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 3503 OF 2024
IN
APPEAL NO. 952 OF 2024
Mastan Ali Abdul Salim Shaikh Alias Aayan ...Applicant
Versus
State of Maharashtra and Anr …Respondents
Mr. Raeesuddin Khan, for the Applicant.
Smt. R.S. Tendulkar, APP, for the Respondent-State.
Ms. Vrunali Vilankar, (through VC), Appointed Advocate for
Respondent No.2.
CORAM: N. J. JAMADAR, J.
DATE : 24th SEPTEMBER 2026
ORDER:
1. This is an Application for suspension of sentence and to enlarge
the Applicant on bail, during the pendency of the Appeal.
2. By a judgment and order dated 12 th April 2024, the learned
ARUN
RAMCHANDRA
SANKPAL
Special Judge, Greater Mumbai, convicted the Applicant for an offence
Digitally signed by
ARUN RAMCHANDRA
SANKPAL
Date: 2026.09.25
15:45:50 +0530
punishable under Section 376 of the Indian Penal Code, 1860 (“the
Penal Code”) and Sections 4, 6, 8 and 12 of the Protection of Children
from Sexual Offences Act, 2012 (“the POCSO Act, 2012”), and for the
major offence punishable under Section 6 of the POCSO Act, 2012,
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18-IA-3503-2024.DOC
sentenced the Applicant to suffer Rigorous Imprisonment for 10 years
and pay a fine of Rs.5000/- ,with default stipulation.
3. The indictment against the Applicant was that the Applicant
subjected the victim, then 17 years of age, to penetrative sexual assault
by giving promise of marriage. There were multiple instances of
penetrative sexual assault. Eventually, the victim became pregnant. It
then transpired that the Applicant was already married and had two
children and had made a false representation that he would marry the
victim. Thereupon, the pregnancy was terminated.
4. Mr. Raeesuddin Khan, the learned Counsel for the Applicant,
submitted that the prosecution did not establish that the victim was a
child. It was submitted that though the birth certificate was placed on
record, yet, the victim or her mother had not deposed that the said birth
certificate was that of the victim. It was further submitted that the
Applicant has undergone a sentence of more than three and half years.
Therefore, the Applicant deserves to be enlarged on bail, during the
pendency of the Appeal.
5. Smt. R.S. Tendulkar, the learned APP and Ms. Vrunali Vilankar,
the learned Counsel for Respondent No.2-victim, stoutly opposed the
prayer for bail.
6. It is trite, at the stage of consideration of an Application for
suspension of sentence, the Appellate Court is not expected to delve
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18-IA-3503-2024.DOC
into the merits of the matter so as to find out lacunae, loopholes or
shortcomings in the prosecution’s case. Evidently, the birth certificate
(Exhibit “37”), prima facie, indicates that the victim had not completed
18 years of age, at the time of the alleged occurrence. Thus, the
submission on behalf of the Applicant premised on the inapplicability of
the provisions of POCSO Act, 2012, cannot be readily acceded to, at this
stage.
7. Prima facie, the consitutent ingredients of the offence appear self-
evient. Indisputably, the Applicant was married and had two children.
The DNA report reveals that the accused and the victim were the
biological parents of the fetus. An endeavour was made during the
course of the cross-examination of the victim and her mother that the
relationship was consensual.
8. In the backdrop of these facts, it cannot said that the Applicant
has succeeded in making out a case that he has a strong chance of
success in the Appeal. Resultantly, this Court is not inclined to exercise
the discretion in favour of the Applicant.
9. Hence, the following order:
:ORDER:
(i) The Application stands rejected.
(ii) Hearing of the Appeal stands expedited.
[N. J. JAMADAR, J.]
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