Granting Bail In Serious Offences Under POCSO Act Defeats Statute: Bombay High Court Denies Bail To Man Booked For Sodomising Minor Boy

The Bombay High Court recently held that in serious cases covered under special statute like the Protection Of Children from Sexual Offences (POCSO), courts should not have a 'liberal' approach and grant bail to an accused.

Single-judge Justice Amit Borkar observed that though every accused has a fundamental right to liberty but the same cannot be said to be an 'absolute right.'

"This Court observes that while every accused person has a fundamental right to liberty, this right is not absolute and must be balanced against the larger interests of justice, public order, and the protection of victims, particularly when the victims are minors. The POCSO Act represents the legislative intent to provide stringent protection to children from sexual offences. Courts, as guardians of justice, have a solemn duty to ensure that this legislative objective is not defeated by a liberal approach to bail in such serious cases," the judge said in the order passed on July 2. 

In his 12-page judgment, Justice Borkar observed that the trauma suffered by child victims in sexual assault cases is immense and long-lasting.

"The criminal justice system must be sensitive to their plight and ensure that they are not subjected to further victimisation through intimidation or influence by the accused persons," the judge underlined. 

The bench made the observations while refusing bail to one Mayur Wankhede, accused of sodomising a 17-year-old boy in bushes near the Juhu beach in Mumbai.

The judge rejected the argument that it was impossible for the applicant to overpower the 17-year-old victim without signs of resistance.

"Sexual offences often involve psychological coercion, fear, and shock, which may prevent the victim from offering effective physical resistance. The location of the incident (isolated bushes near a beach) and the element of surprise could have facilitated the commission of the offence without necessarily leaving extensive physical marks of struggle. Moreover, the age difference and physical strength comparison cannot be determined solely on the basis of chronological age. The Court cannot speculate on the relative physical capabilities of the parties without concrete evidence," Justice Borkar observed. 

The nature of the alleged offence is such that it not only causes physical harm to the victim but also inflicts severe psychological trauma that may have long-lasting effects on the minor victim, the court held.

Further, the judge pointed out that courts have consistently held that while considering bail in cases involving sexual offences against minors, the traumatic effect on the victim and the possibility of the accused influencing or intimidating the victim or witnesses must be given due consideration.

"Given the nature of the allegations and the fact that the victim is a minor, there exists a reasonable apprehension that if released on bail, the applicant may attempt to influence the victim or other witnesses. The victim, being a minor, is particularly vulnerable to intimidation or pressure, which could seriously compromise the fair trial of the case. The investigation has been completed and the charge-sheet has been filed, but the trial is yet to commence. During this crucial period, it is essential to ensure that the victim and witnesses are protected from any potential influence or harassment by the accused," the judge opined. 

With these observations, the bench dismissed the plea filed by Wankhede, who sought bail. 

Appearance:

Advocates Aniket Nikam and Sumit Patil appeared for the Applicant.

Additional Public Prosecutor Megha Bajoria represented the State.

Advocate Viral Mukte was appointed to represent the Victim.

Case Title: Mayur Raju Waghmare vs State of Maharashtra (Bail Application 897 of 2025)

Click Here To Read/Download Order