Bombay High Court
Naman Dnyaneshwar Makeshwar @ Namya vs The State Of Maharashtra And Anr on 2 September, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:36818
17-ba-2148-2024.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 2148 OF 2024
SHABNOOR
AYUB
PATHAN
Digitally signed by
Naman Dnyaneshwar Makeshwar
SHABNOOR AYUB
PATHAN
Date: 2025.09.02
16:46:13 +0530
@ Namya ... Applicant
V/s.
State of Maharashtra & Anr. ... Respondents
Ms. Ayesha Maldar a/w Ms. Vibha Mishra, for the applicant.
Ms. Mahalakshmi Ganapathy, APP for the State - respondent
No.1.
Mr. Pranav Narsalia, for respondent No.2.
Mr. Jagtap, PSI, Vesrova Police Station is present.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 2, 2025
P.C.:
1. The present bail application has been preferred by the
applicant under Section 439 of the Code of Criminal Procedure,
1973. The applicant seeks his release in connection with Crime
Register No. 113 of 2022 registered at Vesrova Police Station. The
applicant stands accused of offences punishable under Section 354
of the Indian Penal Code, 1860. In addition, provisions of Sections
7, 8 and 12 of the Protection of Children from Sexual Offences Act,
2012 (POCSO Act) have also been applied against him.
17-ba-2148-2024.doc
2. The case of the prosecution, in brief, is that on 8 March
2022, the complainant's daughter, who was then 7 years of age,
was playing outside the house. Shortly thereafter, she returned
home weeping. On being questioned, she disclosed to her mother
that the accused had removed her underwear and touched her
private part. At that very time, one neighbour, namely Ramu
Shapal, is stated to have witnessed the applicant removing the
underwear of the victim and inappropriately touching her. He
immediately informed the complainant of what he had seen. The
complainant, thereafter, rushed to the police station and lodged a
formal complaint. On the basis of this complaint, the present crime
came to be registered against the applicant.
3. Learned Advocate for the applicant submitted that the
applicant was arrested on 10 March 2022 and has been behind
bars since then. It is pointed out that the maximum punishment
prescribed for the alleged offences is five years. The applicant has
already undergone incarceration for more than three and a half
years. It is therefore argued that continued detention of the
applicant is unjust and violative of his fundamental rights
guaranteed under Article 21 of the Constitution of India, which
ensures the right to life and personal liberty. On these grounds, it
is prayed that the applicant deserves to be released on bail.
4. On the other hand, the learned APP as well as the learned
Advocate appointed to represent the victim have strongly opposed
the application. It is submitted that the allegations against the
applicant are grave and serious, especially considering that the
victim is a minor child aged only 7 years. They have further drawn
17-ba-2148-2024.doc
attention to the fact that the applicant has as many as eight prior
criminal antecedents to his discredit. It is urged that if the
applicant is released on bail, there is every likelihood that he may
misuse the liberty, tamper with the prosecution evidence, or
threaten and influence the witnesses. In view of these
circumstances, it is prayed that the bail application deserves to be
rejected.
5. I have carefully considered the rival submissions and perused
the material placed on record. It is true that the allegations made
against the applicant are serious in nature, and that the victim is a
child of tender age. Ordinarily, such offences must be viewed with
utmost seriousness, as they strike at the very dignity and safety of
children.
6. At the same time, while considering an application for bail,
this Court is required to balance two competing interests, on one
hand, the gravity of the allegations and the interest of the society
in ensuring that such offences are dealt with sternly, and on the
other hand, the fundamental rights of the accused under Article 21
of the Constitution of India, which guarantee that no person shall
be deprived of liberty except in accordance with procedure
established by law.
7. In the present case, it is an admitted position that the
applicant has been in custody since 10 March 2022. Thus, he has
undergone incarceration of more than three and a half years. The
maximum punishment provided for the offences alleged against
him is imprisonment for five years. In these circumstances,
17-ba-2148-2024.doc
continued incarceration of the applicant would practically amount
to subjecting him to pre-trial punishment, which cannot be
countenanced in law.
8. The Supreme Court, in several judgments including Hussain
and another v. Union of India [(2017) 5 SCC 702], has held that
prolonged incarceration without conclusion of trial violates the
mandate of Article 21 and the principle of speedy trial. The Court
has emphasized that in such situations, bail should normally be
granted to the undertrial, even in cases involving serious offences,
unless there are very exceptional circumstances to deny the same.
9. It is also a matter of record that the trial has not been
concluded till date, and there is no material to indicate that the
trial would be completed in the near future. Delay in trial cannot
be attributed solely to the applicant. Therefore, in the overall facts
and circumstances, continued detention would defeat the
constitutional guarantee of a fair and speedy trial.
10. As regards the contention of the prosecution regarding the
antecedents of the applicant, this Court is conscious of the fact that
he has criminal cases registered against him. However, it is settled
law that past antecedents by themselves cannot be the sole ground
for denial of bail, if the other circumstances strongly lean in favour
of release, particularly when the applicant has already undergone
custody close to the maximum prescribed sentence. The
apprehension of tampering with witnesses or influencing them can
be addressed by imposing strict conditions while granting bail.
11. In the above view of the matter, this Court is of the opinion
17-ba-2148-2024.doc
that further custody of the applicant is not warranted. Appropriate
conditions can safeguard the prosecution case. Hence, the
applicant deserves to be enlarged on bail.
12. In view of the above discussion and legal position, the
following order is passed:
(i) The Bail Application is allowed.
(ii) The applicant shall be released on bail in connection
with Crime Register No. 113 of 2022 registered with Vesrova
Police Station for offences punishable under Sections 354 of
IPC, and Sections 7, 8, 12 of POCSO, upon furnishing a
Personal Bond of ₹25,000/- (Rupees Twenty-Five Thousand
only) along with one or more solvent sureties in the like
amount, to the satisfaction of the learned Trial Court, subject
to the following conditions:
(a) The applicant shall not tamper with evidence, or
directly or indirectly contact, influence, threaten, or
intimidate any witness.
(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 Versova Police Station,
Mumbai 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 the prior written
17-ba-2148-2024.doc
permission of the Trial Court.
(e) The applicant shall not enter the territorial jurisdiction
of the Trial Court and the concerned police station till the
conclusion of the trial, without the prior permission of the
Trial Court, except for the limited purpose of marking his
presence and attending trial proceedings.
(f) The applicant shall not commit any offence or engage
in any criminal activity during the pendency of the trial.
(g) 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.
13. The Bail Application stands disposed of in above terms.
(AMIT BORKAR, J.)
