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Bombay High Court Rules Bar On Is Not Absolute
Justice Nerlikar clarifies that despite the , a narrow window exists for accused to challenge applications when ingredients of the offence are not disclosed.
In a significant ruling on the scope of , the has held that the provision does not create an against . The Court ruled that applications remain maintainable for the limited purpose of examining whether the statutory ingredients of are satisfied. If they are not, may still be granted.
Justice M. M. Nerlikar delivered the common order on , rejecting two separate applications after finding that the ingredients of — rape of a woman under 16 years — were clearly made out in both cases.
A Tale of Two Victims
The first application (Criminal Application No. 794/2026) involved Kasif Sahabuddin Khan, accused of repeatedly raping a 15-year-old girl in Desaiganj, Gadchiroli. The victim, who became pregnant, initially implicated another person under threat from the accused but later identified Khan in her statement recorded under . The FIR alleged offences under and .
The second application (Criminal Application No. 771/2026) concerned Ajay Ganesh Ade, accused of raping a 14-year-old girl in Barshi Takli, Akola. The victim initially told police she had accompanied Ade voluntarily, but in a supplementary statement she alleged he had sexually assaulted her after threatening to make her obscene photographs and videos viral. The case was registered under .
The Core Legal Question
Both applications raised the same preliminary issue: whether — which states that “nothing in this section shall apply to any case involving the arrest of any person on an offence under ”— completely ousts the Court’s jurisdiction to entertain .
The applicants argued that the bar was not absolute, relying on interpretations of similar provisions in the , , and . They contended that the Court could consider whether a case under the specified sections existed, and if not, could grant relief.
The State and the victims’ counsel countered that the legislative intent behind the —which introduced the bar—demanded strict interpretation. They submitted that once the ingredients of Section 65 or 70(2) were made out, the application was non-maintainable regardless of other grounds such as false implication or inconsistent statements.
A , Not a Closed Door
Justice Nerlikar began by scrutinizing the plain language of Section 482(4). Citing the well-settled principle that unambiguous statutory language requires no further interpretation, the Court observed that the provision uses the phrase “,” which implies that a victim’s claim must be accepted at face value for satisfaction.
However, drawing on precedents from the —particularly Prathvi Raj Chauhan v. Union of India (2020) 4 SCC 727 and Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1—the Court distinguished between an and a conditional one.
“Section 482(4) does not impose an . It only applies when allegations under exist. … Therefore, a very is open for the accused persons to claim under .”
The Court clarified that this window is narrow: the judge may examine only whether the statutory ingredients are disclosed. Any deeper analysis into evidentiary inconsistencies, false implication claims, or medical evidence would defeat the legislative purpose of protecting minor victims.
“If the Courts start enlarging the scope by entertaining the applications on merits by examining all the grounds available in ordinary applications, then the very purpose of introduction of said provision would be frustrated.”
Test Applied, Both Applications Fall
Applying the test to the facts, the Court noted the undisputed ages of the victims: 15 years and 5 months in the first case, and 14 years and 4 months in the second. Both victims had alleged rape. In the first case, the pregnancy corroborated the allegation. In the second, despite an initial contradictory statement, the supplementary statement clearly alleged sexual assault under threat.
“Section 65(1) has been invoked and therefore, the two ingredients which ought to be satisfied are (i) rape is committed on a woman, and (ii) the woman is under 16 years of age. the allegations are made out,” the Court observed.
“Therefore, the applications filed by the applicants are not maintainable, and the bar provided under Section 482(4) would operate.” Both applications were rejected.
Implications for Future Cases
The decision provides crucial clarity for litigants and lower courts grappling with the new BNSS provision. While accused persons charged with rape of minors under 16 can still petition for , they must first overcome the preliminary hurdle of demonstrating that the statutory ingredients are not made out. If the allegations on their face satisfy the elements of Section 65 or 70(2) BNS, the application will be dismissed without consideration of other grounds.
Justice Nerlikar further directed that the fees of appointed counsel for the victims be determined and paid as per rules. The order was signed and dated .
