Bombay High Court
Mahendra @ Vijaybharti S/O Vasantrao ... vs The State Of Maharashtra, Thr. Pso, Ps ... on 6 November, 2025
1 ba360.2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (BA) NO.360/2025
(Mahendra @ Vijaybharti S/o Vasantrao Gajhbhiye Vs. The State of Maharashtra, through P.S.O.P.S. Jaripatka,
Nagpur and others)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. A.S. Shukla, Advocate (appointed) for the applicant.
Mr. Anant Ghogare, A.P.P. for the non-applicant No.1/State.
Mr. Viren Joshi, Advocate (appointed) for non-applicant Nos.2 and 3.
CORAM: MRS.VRUSHALI V. JOSHI, J.
DATED: 6.11.2025.
The applicant is arrested in Crime No.227/2023 for the offence
punishable under Sections 376(2)(l), 376(AB), 354 and 506 of the
Indian Penal Code and Sections 4 and 8 of the Protection of Children
from Sexual Offences Act.
2. The applicant has filed this application through legal aid on the
ground that there is a delay in trial and has stated that on merits also
the case is not made out against him for the offence punishable under
Section 376 of the I.P.C.
3. The prosecution case is that the applicant had committed
offence when two minor girls were playing on terrace. He touched
them inappropriately, inserted his hand in their knickers and touched
their private parts. It was seen by the relative of one of the victims
and thereafter they disclosed that the applicant had touched the
victims inappropriately and F.I.R. was lodged and crime is registered.
4. Learned Advocate for the applicant has stated that since 2 years
and 7 months the applicant is in jail. The offence under Section 376
of the I.P.C. will not be attracted as there is no allegation of
penetration. If the offence under Section 354 of the I.P.C. is proved,
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then punishment is of 5 years and he has already undergone half of
the punishment. As per Section 479 of the Bhartiya Nagarik Suraksha
Sanhita if a person has undergone half of the punishment, then he
shall be released on bail. As per progress report 5 witnesses are
examined and 3 to 4 witnesses have remained to be examined.
5. The applicant has relied on the judgment of the Hon'ble Apex
Court in Special Leave Petition No.10377/2025 (Laxman Jangde V/s.
State of Chhattisgarh through the Station House Officer), dated
10.9.2025 wherein following observations are made:-
"6. Having considered the matter in depth, we find
substance in the submission of learned senior counsel for
the appellant. A plain reading of the evidence and other
materials on record reveal that the offence made out from
such allegation do not satisfy the ingredients of either
Section 375 of the IPC or Section 3(c) of the POCSO Act.
Thus, to that extent, the conviction cannot be sustained. ...."
He has also relied on the observations made by the Hon'ble
Apex Court in para 15 in case of Union of India V/s. K.A. Najeeb
reported in (2021) 3 SCC 713 which reads as under:-
"15. This Court has clarified in numerous judgments that
the liberty guaranteed by Part III of the Constitution would
cover within its protective ambit not only due procedure
and fairness but also access to justice and a speedy trial. In
Supreme Court Legal Aid Committee (Representing
Undertrial Prisoners) v. Union of India, it was held that
undertrials cannot indefinitely be detained pending trial.
Ideally, no person ought to suffer adverse consequences of
his acts unless the same is established before a neutral
arbiter. However, owing to the practicalities of real life
where to secure an effective trial and to ameliorate the risk
to society in case a potential criminal is left at large pending
trial, courts are tasked with deciding whether an individual
ought to be released pending trial or not. Once it is obvious
that a timely trial would not be possible and the accused has
suffered incarceration for a significant period of time, the
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courts would ordinarily be obligated to enlarge them on
bail."
The learned Advocate for the applicant has prayed to release
the applicant on bail.
6. The learned A.P.P. opposed the application stating that offence
under POCSO Act is registered against this applicant, applicant is
staying in same area, though the allegations of penetration are not
there the offence is serious and trial has already commenced and 3 to
4 witnesses have remained to be examined. The learned A.P.P. has
stated that minor girls have given similar statement, they are
examined, the applicant is staying in same area. As the trial is at the
fag end prayed to reject the application.
7. Heard both sides and perused the record.
8. It appears from the record that though trial is initiated only 5
witnesses are examined till today. The applicant is in jail since last 2
years and 7 months. From the allegations, it appears that the offence
under Section 376 of the I.P.C. will not be attracted as there is no
allegations of penetration. The applicant has touched the private
parts of the minor girls and, therefore, prima facie, at the most,
offence under Section 354 of the I.P.C. will be attracted. The
applicant has undergone half of the punishment and, therefore,
Section 479 of the B.N.S.S. will be attracted. As per Section 479 of
the B.N.S.S. the applicant is entitled for bail. Hence, the application
is allowed.
i) Applicant - Mahendra @ Vijaybharti S/o Vasantrao Gajhbhiye
be released on bail in Crime No.227/2023 for the offence punishable
under Sections 376(2)(l), 376(AB), 354 and 506 of the Indian Penal
Code and Sections 4 and 8 of the Protection of Children from Sexual
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Offences Act, on his furnishing P.R. Bond in the sum of Rs. 25,000/-
(Rupees Twenty Five Thousand only) with one solvent surety in the
like amount.
ii) The applicant shall not in any way tamper with the prosecution
evidence.
iii) The applicant shall not pressurize or threaten the prosecution
witnesses.
iv) The applicant shall co-operate with the learned trial Judge in
the conduct of the trial.
v) The applicant is directed not to enter Kushinagar area of
Nagpur.
vi) The trial Court is directed to conclude the trial within a period
of six months.
9. The fees of the learned Advocates appointed through legal aid
for the applicant and non-applicant No.2 be paid as per Rules.
CRIMINAL APPLICATION (APPP) NO.591/2025
10. In view of above order, this application does not survive and is
disposed of accordingly.
(MRS.VRUSHALI V.JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 06/11/2025 18:52:59
