Case Note & Summary
The matter involved a regular bail application filed under Section 439 of the Code of Criminal Procedure, 1973 by accused No.2 in C.R. No.275 of 2021 registered at Haveli Police Station, Pune on 22 December 2021 for offences under Sections 377, 506(II) read with 34 IPC, various provisions of the POCSO Act and Section 67-B of the Information Technology Act, 2000. The applicant, Nilesh Suryakant Netake, through counsel, contended that he was merely present when the incident took place and played no role, and also relied on long incarceration and absence of progress in trial. The State and the respondent No.2 strongly opposed bail, submitting that the applicant played a major role in the commission of the crime, that the offence was very serious and heinous, and that because victims, witnesses and accused were staying in the same vicinity, there was a very high possibility of the accused pressurizing witnesses. The court noted that this was a second bail application; the first, Bail Application No.3551 of 2023, was allowed to be withdrawn by order dated 11 March 2024 after the court observed it was not inclined to grant bail, and liberty was granted to file fresh after one year if there was no substantial progress in trial. The court set out the settled parameters for bail, relying on Ram Govind Upadhyay v. Sudarshan Singh, and reiterated that it was not required to conduct a detailed analysis of evidence at the stage of bail but had to consider the prima facie case. The material on record, including the FIR statement of the father of victim A and the written note on behalf of respondent No.2, showed that on 21 December 2021, the applicant forcibly brought a minor victim to the premises of co-accused Ishwar where co-accused Kunal Bhangre and Ishwar were present; all three threatened and coerced the victims to remove clothes; the applicant physically pushed the victim's head onto his own lap during the sexual assault by co-accused; and a video recording made by accused No.3, duly submitted in compliance with Section 65B of the Indian Evidence Act, corroborated the offence and showed the applicant holding down the head of the minor victim. The court found that the evidence on record prima facie showed that the applicant forcibly brought the minor victims, threatened and forced them to remove clothes, compelled them to do the act and physically restrained them. The offence was very serious and heinous, where victims-boys aged 12 and 14 years were sexually assaulted and subjected to gang rape, supported by the medical report and video recording. Accordingly, the court held that no case was made out for grant of bail on merits. It also noted that accused No.3's bail application No.3307 of 2024 was withdrawn on 5 March 2025 with liberty to file after nine months if trial not concluded. In the available excerpt, the court was considering the submission of long incarceration but the text ends without recording the final operative order. Therefore, the final decision is not mentioned in the provided judgment text, though the reasoning indicates that bail was not granted on merits.
Headnote
A) Criminal Procedure - Bail - Parameters for Grant of Bail - Code of Criminal Procedure, 1973, Section 439 - The court enumerated factors including nature and gravity of offence, position and status of accused, likelihood of fleeing, likelihood of tampering with witnesses, and history of case/investigation; court is not required to enter into detailed analysis of evidence at bail stage. Held that bail applications must be considered on these parameters (Paras 6-7). B) Criminal Procedure - Bail - Prima Facie Case in Serious Sexual Offences - Indian Penal Code, 1860, Sections 377, 506(II), 34; Protection of Children from Sexual Offences Act, 2012, Sections 3,4,5(g),6,7,8,9(g),10,11(ii),12,13,14,15,16; Information Technology Act, 2000, Section 67-B - Material on record showed applicant forcibly brought minor victims, threatened and coerced removal of clothes, physically restrained victims during sexual assault by co-accused; video recording under Section 65B Indian Evidence Act corroborated active role. Held that no case for bail on merits was made out due to serious and heinous offence (Paras 9-14). C) Criminal Procedure - Bail - Second Bail Application after Withdrawal - Code of Criminal Procedure, 1973, Section 439 - First bail application No.3551 of 2023 was withdrawn after court observed it was not inclined to grant bail, with liberty to file fresh after one year if no substantial progress; present application was considered on merits. Held that withdrawal does not bar fresh consideration but merits remain decisive (Paras 5,15). D) Criminal Procedure - Bail - Long Incarceration as Ground for Bail - Code of Criminal Procedure, 1973, Section 439 - Applicant relied on long incarceration since 22 December 2021 and no trial progress; court noted the submission but available excerpt ends before final ruling. Held that long incarceration is a relevant factor to be balanced with seriousness of offence and witness protection needs (Paras 3,17).
Issue of Consideration
Whether the applicant is entitled to regular bail under Section 439 of the Code of Criminal Procedure, 1973 in connection with C.R. No.275 of 2021 for offences under IPC, POCSO Act and Information Technology Act, considering the seriousness of offence, prima facie material, long incarceration and delay in trial.
Law Points
- Bail parameters include nature and gravity of offence
- position and status of accused
- likelihood of fleeing
- likelihood of tampering with witnesses
- history of case and investigation
- court not required detailed analysis of evidence at bail stage
- prima facie satisfaction required
- heinous sexual offences against minors militate against bail
- long incarceration alone not sufficient in serious offences
- second bail application considered on merits despite prior withdrawal
