Bombay High Court
Harshad @ Dolly @ Kaki Manohar Kadam vs State Of Maharashtra And Anr on 6 October, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:42721
16-ba-3311-2024.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3311 OF 2024
SHABNOOR
AYUB
PATHAN
Harshad @ Dolly
Digitally signed by
SHABNOOR AYUB
PATHAN
@ Kaki Manohar Kadam ... Applicant
Date: 2025.10.06
18:08:33 +0530
V/s.
State of Maharashtra & Anr. ... Respondents
Mr. Sushan N. Mhatre, for the applicant.
Ms. Rajashree V. Newton, APP for the State -
respondent No.1.
Mr. Ankit J. Bagoria, for respondent No.2 (appointed
through Legal-aid).
Mr. Ganesh Pawar, PSI, Mahad City Police Station is
present.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 6, 2025
P.C.:
1. The present application is filed under Section 439 of the
Code of Criminal Procedure, 1973, seeking regular bail. It arises
from Crime Register No. 242 of 2023 registered with Mahad City
Police Station. The applicant is charged for offences punishable
under Sections 377 and 201 of the Indian Penal Code, 1860. The
prosecution has also invoked Sections 4, 6, 8, and 21 of the
Protection of Children from Sexual Offences Act, 2012, and
Section 67C of the Information Technology Act, 2000.
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2. The prosecution case, in brief, is that the applicant is a
transgender person who has undergone a sex change operation.
He was employed as a part-time worker and labourer. The
complainant is the Superintendent of a children's institution since
1 May 2023. The victim has been residing in the said institution
since 13 February 2023. Prior to this, the victim stayed at
"Swarajya Niwara Samajik Sanstha," which is managed by the co-
accused Aniket Tamble. The applicant worked as a helper in that
institution. On 19 September 2023, during an enquiry made by the
complainant, the victim disclosed that the applicant had forced
him to engage in oral sex when he was staying at the Swarajya
Sanstha. Based on this disclosure, the present complaint was
lodged.
3. Learned Advocate for the applicant submitted that the
applicant belongs to the LGBTQ community, is around 22 years of
age, and is suffering from intersphincteric fistula with a secondary
tract. He is also a known case of HIV, undergoing antiretroviral
therapy. The medical report dated 4 October 2025 shows that the
applicant has been referred to Sir JJ Group of Hospitals, Mumbai,
on more than 30 occasions since 17 January 2024 for treatment.
He has been advised to undergo USG and MRI Fistulogram, which
revealed an intersphincteric fistula with a secondary tract. He has
also been advised to undergo fistulotomy under spinal anesthesia.
4. In support of his plea, the learned Advocate relied on the
judgment of the Supreme Court in Bhawani Singh v. State of
Rajasthan, 2022 SCC OnLine SC 1991 , and the judgment of a
Coordinate Bench of this Court in XXX v. State of Maharashtra,
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2024 SCC OnLine Bom 1984. In the latter case, while dealing with
similar allegations, the Court observed that persons belonging to
the LGBTQ+ community and suffering from HIV are to be treated
as a vulnerable class, and such applicants were released on bail.
5. The learned Advocate also referred to Section 34(2) of the
Human Immunodeficiency Virus and Acquired Immune Deficiency
Syndrome (Prevention and Control) Act, 2017, which mandates
expeditious disposal of cases involving accused persons suffering
from HIV. He further relied on the judgment of the Karnataka High
Court in Rajendra v. State of Karnataka, Through Dibburahalli PS
& Anr., 2025 SCC OnLine Kar 10500, where the accused suffering
from HIV was granted bail on medical grounds. On this basis, it is
urged that the applicant deserves bail on humanitarian and
medical considerations.
6. The learned APP opposed the application. He relied upon the
medical report submitted by the Chief Medical Officer, Thane
Central Prison. The report shows that the applicant is receiving
adequate medical treatment, including necessary tests and regular
follow-ups at Sir JJ Group of Hospitals, Mumbai. The report
records that the applicant was admitted to Sir JJ Hospital on 17
January 2024 and again on 24 January 2024, and thereafter was
regularly taken for follow-up examinations. The required
investigations, including USG and MRI Fistulogram confirming
intersphincteric fistula with secondary tract, have been conducted.
The report further notes that the applicant will be referred to Sir JJ
Hospital for elective surgery as per medical advice.
16-ba-3311-2024.doc
7. Thus, according to the prosecution, all necessary medical
facilities are being provided to the applicant, both at the prison
hospital and through regular referrals to Sir JJ Group of Hospitals,
and therefore no case for bail on medical grounds is made out.
8. Having considered the rival submissions and perused the
record, the following reasons support the grant of bail to the
applicant.
9. The allegations against the applicant are serious in nature.
However, the trial is yet to commence. The charge-sheet has been
filed, and the investigation is complete. Therefore, the continued
detention of the applicant is not necessary for any further
investigation.
10. The material on record shows that the applicant belongs to
the LGBTQ community and is undergoing treatment for serious
medical ailments. The medical report dated 4 October 2025,
submitted by the Chief Medical Officer, Thane Central Prison,
indicates that the applicant is a known case of HIV and is under
continuous antiretroviral therapy. He also suffers from
intersphincteric fistula with a secondary tract and has been
referred to Sir JJ Group of Hospitals, Mumbai, on multiple
occasions for treatment and surgical procedures.
11. The said medical report confirms that despite regular
medical assistance being provided in prison, the applicant requires
specialized care, surgical intervention, and continuous follow-up in
a tertiary hospital setting. The nature of the ailment, being chronic
and progressive, necessitates medical attention beyond the routine
16-ba-3311-2024.doc
facilities available in prison.
12. The provisions of Section 34(2) of the Human
Immunodeficiency Virus and Acquired Immune Deficiency
Syndrome (Prevention and Control) Act, 2017, emphasize that
cases involving accused persons suffering from HIV must be
disposed of expeditiously, thereby recognizing their medical
vulnerability. The underlying legislative intent is to ensure that
such persons are not subjected to unnecessary hardship which may
aggravate their condition.
13. While considering bail applications of persons who belong to
vulnerable sections of society or those suffering from serious
medical ailments, the Court must act with a sense of compassion
guided by law. The principle of bail being the rule and jail the
exception is not merely a technical norm. It flows from Article 21
of the Constitution, which guarantees the right to life and personal
liberty. Such right extends to the preservation of one's health and
access to medical treatment while in custody.
14. When the record clearly shows that the accused suffers from
a grave medical condition, such as HIV or other chronic illness,
and that his condition requires continuous medical supervision and
specialized care, the Court cannot remain a silent spectator. The
duty of the Court is to ensure that the administration of criminal
justice does not operate harshly against those whose health places
them in a fragile position. The objective of detention is to ensure
the presence of the accused during trial, not to cause physical
deterioration or denial of proper treatment.
16-ba-3311-2024.doc
15. Humanitarian considerations, however, cannot override
public interest or the need to ensure a fair trial. Therefore, the
Court must balance both. Where the allegations are serious but the
evidence collected is documentary in nature and the investigation
is complete, the apprehension of the accused interfering with the
process of justice becomes remote. In such circumstances,
prolonged incarceration of a person suffering from a severe
medical condition would amount to an unjust deprivation of his
constitutional right.
16. In the present case, credible medical evidence supports the
applicant's claim. The report of the Chief Medical Officer of Thane
Central Prison and the records of Sir JJ Group of Hospitals confirm
that the applicant is HIV positive and is undergoing antiretroviral
therapy. He is also suffering from an intersphincteric fistula with a
secondary tract, requiring regular hospital visits, diagnostic tests,
and possible surgical intervention. These records are official,
issued by competent medical authorities, and therefore carry a
presumption of correctness.
17. The prosecution has not disputed the authenticity of these
medical documents. The report filed by the prison authorities
themselves admits that the applicant requires follow-up treatment
at a tertiary hospital. This supports the inference that his condition
is not minor or manageable solely within the prison hospital.
Hence, the medical evidence on record is sufficient and credible to
establish that the applicant's continued detention may cause undue
hardship and may obstruct proper medical care.
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18. The applicant belongs to the LGBTQ community, a section
recognized as vulnerable due to social stigma and discrimination.
Courts are duty-bound to ensure that such persons are not exposed
to further humiliation or neglect merely because of their gender
identity. The law requires equal protection and humane treatment
for all citizens, irrespective of gender or identity.
19. Therefore, guided by credible medical evidence and the
settled legal position, this Court is satisfied that humanitarian
considerations must prevail in this case. The balance between the
rights of the accused and the interests of justice can be maintained
by imposing appropriate conditions. The applicant's release on
bail, subject to such terms, would ensure both fair trial and
protection of his health and dignity.
20. In XXX v. State of Maharashtra, 2024 SCC OnLine Bom
1984, this Court granted bail to an applicant belonging to the
LGBTQ community and suffering from HIV, recognizing the need
for sensitive treatment and continued medical support.
21. The applicant has been in custody since 17 January 2024, a
period sufficient for completion of investigation and filing of the
charge-sheet. The possibility of tampering with evidence or
influencing witnesses appears remote, as the victim is under
institutional care and protection.
22. The offences alleged are grave, but at this stage, it cannot be
said that the applicant's release would cause prejudice to the
prosecution. The principle that bail is the rule and jail the
exception applies with greater force when the accused suffers from
16-ba-3311-2024.doc
serious medical ailments requiring specialized treatment.
23. Having regard to the applicant's medical condition, social
background, and the fact that necessary restrictions can be
imposed to ensure his availability during trial, this Court is of the
view that continued incarceration would serve no useful purpose.
24. Accordingly, the applicant deserves to be enlarged on bail on
medical and humanitarian grounds, subject to appropriate
conditions ensuring his presence during trial and prohibiting any
contact with the victim or witnesses.
25. In view of the above discussion and legal position, the
following order is passed:
(i) The Bail Application is allowed.
(ii) Considering the fact that the applicant is a labourer
with limited financial means, he shall be released on cash
bail of ₹10,000/- (Rupees Ten Thousand only) in connection
with Crime Register No. 242 of 2023 registered with Mahad
City Police Station for offences punishable under Sections
377 and 201 of IPC, Sections 4, 6, 8 and 21 of POCSO, and
under Section 67C of the Information Technology Act.
(iii) Within a period of 16 weeks from the date of his
release, the applicant shall furnish a Personal Bond of
₹10,000/- (Rupees Ten Thousand only) with one or more
solvent sureties in the like amount, to the satisfaction of the
learned Trial Court, subject to the following conditions:
16-ba-3311-2024.doc
(a) The applicant shall not tamper with evidence, or
directly or indirectly contact, influence, threaten, or
intimidate any witness, particularly family members of the
deceased.
(b) The applicant shall attend all proceedings before the
Trial Court regularly, unless exempted by the Court on valid
grounds supported by sufficient cause.
(c) The applicant shall report to the Mahad City Police
Station, on the first Monday of every month between 10.00
a.m. and 12.00 noon, until further orders.
(d) The applicant shall not leave the territorial jurisdiction
of the State of Maharashtra without prior written permission
of the Trial Court.
(e) The applicant shall not commit any offence or engage
in any criminal activity during the pendency of the trial.
(f) The applicant shall, at the time of furnishing surety,
provide his current residential address and mobile number to
the Investigating Officer as well as the Trial Court, and shall
inform the Court in writing of any change in residence or
contact details during the pendency of the case.
26. The Bail Application is accordingly disposed of in above
terms.
(AMIT BORKAR, J.)
