Bail granted based on prolonged detention and inadequate evidence for immediate conviction, balancing the rights of the accused with victim protection.

CORAM : AMIT BORKAR, J. DATED : AUGUST 12, 2025 P.C.:

1. The present application has been filed by the applicant under Section 4 39 of the Code of Criminal Procedure , 1973, seeking his release on regular bail in connection with Crime Register No. I-121 of 2021 registered with Borivali Police Station. The applicant has been charged with committing offences punishable under Sections 376(2)(i)(n) and 506 of the Indian Penal Code , 1860, as well as Sections 4 , 8 and 12 of the Protection of Children from Sexual Offences Act , 2012 (“POCSO Act”).

2. The brief facts as set out in the prosecution case are as follows: On 28 February 2021, a woman by the name of XYZ lodged a complaint. She stated that she resides with her family. Her elder daughter stays at home, while her younger daughter attends school. The family of one Mulla, along with their relatives, reside in the same locality. About two weeks before lodging the complaint, the younger daughter (victim) complained of stomach pain. On 26 February 2021, the mother of the victim came to know that the applicant was engaging in inappropriate acts with her daughter. Upon being asked, the victim disclosed that for the past 3–4 months the applicant had been getting close to her. He had made a hole in the common wall of their houses, given her a phone, and used it to talk to her regularly.

3. It is alleged that on 14 January 2021, the applicant took the victim to the house of one Hanumant Rathod, led her to the bathroom, and committed sexual intercourse with her. A similar act was allegedly repeated at the same place. The applicant is also said to have threatened the victim that if she disclosed the incident to anyone, he would defame her. Based on these allegations, the offence came to be registered.

4. Learned counsel appearing for the applicant submitted that the applicant was arrested on 12 March 2021 and has been in custody since then. It is pointed out that the medical examination of the victim does not reveal any evidence of penetrative sexual assault. The prosecution has cited as many as 16 witnesses, charges are yet to be framed, and there is no possibility of the trial concluding in the near future. It is argued that given the length of custody and the stage of the proceedings, continued incarceration would serve no useful purpose, and therefore the applicant may be released on bail, subject to appropriate conditions.

5. On the other hand, learned APP for the State and the learned Advocate appointed to represent the victim have strongly opposed the application. It is submitted that the victim is a person with intellectual disability, having an IQ of 53, and is therefore highly vulnerable. The allegations in the FIR clearly disclose that the applicant took advantage of the victim’s mental condition and forcibly committed sexual intercourse with her. The statements of the victim recorded both before the police and under Section 164 of the Code of Criminal Procedure , 1973, are consistent and corroborate the prosecution case. In these circumstances, it is submitted that granting bail to the applicant would not be justified.

6. I have considered the submissions made on behalf of the applicant, the State, and the learned Advocate for the victim. I have also perused the material placed on record, including the FIR, statements of the victim, medical report, and other documents forming part of the charge-sheet.

7. It is an undisputed fact that the applicant has been in custody since 12 March 2021, i.e., for more than four years. The prosecution has cited 16 witnesses, and even the charges have not yet been framed. Considering the number of witnesses and the stage of the proceedings, there is no likelihood of the trial concluding in the near future. Prolonged pre-trial detention, without any reasonable possibility of early conclusion of trial, militates against the principles of personal liberty under Arti