Participation, Not Passive Presence: Bombay High Court Denies Bail in Heinous POCSO Gang Rape Case

“This is not a case of mere presence. The material on record reveals active and disturbing participation.” — Bombay High Court dismissed a second regular bail application filed by Nilesh Suryakant Netake, accused in a deeply disturbing case involving gang rape and aggravated sexual assault of two minor boys aged 12 and 14. The Court, citing the gravity of the offence and the applicant’s direct involvement, refused to extend bail despite over three and a half years of pre-trial incarceration.

The application, filed under Section 439 CrPC, was strongly opposed by the prosecution and the victims’ representative. Justice Madhav J. Jamdar, while considering the plea, observed that the accusations “are not only serious and heinous, but supported by direct evidence including victim testimonies, medical records, and video footage.”

"Four-Fold Role in the Assault": Court Rejects Defence of Non-Involvement

The defence argued that the applicant was merely present at the scene and played no active role. However, the Court found otherwise. Drawing from the material on record, Justice Jamdar concluded, “The applicant forcibly brought the minor victims to the site, issued threats, physically restrained the victim, and actively facilitated the assault.”

Referring to detailed statements from both victims, the Court highlighted that one of them specifically described how Netake—identified as “Shendiwala Dada”—held the victim’s head between his thighs to restrain him during the assault. The horrifying account was corroborated by the second victim and a video recording of the incident, duly submitted under Section 65B of the Indian Evidence Act.

"Involvement is Prima Facie Proven": Bail Denied Despite Long Custody

Though the applicant had been incarcerated since December 2021, and the trial had yet to progress meaningfully, the Court held that prolonged detention alone could not outweigh the gravity of the charges. “When the minimum punishment is 20 years, and the offence is punishable up to life imprisonment or even death, Section 436A CrPC cannot be mechanically invoked,” the judge clarified.

The defence sought relief under Section 436A of the CrPC, arguing that the applicant had already undergone more than half of the maximum prescribed sentence. But the Court dismissed the plea, stating, “Given the nature of the charges—aggravated penetrative sexual assault and gang rape under POCSO—the threshold under Section 436A is not satisfied.”

"Trial Must Proceed Swiftly": High Court Orders Expedited Proceedings

While denying bail, Justice Jamdar expressed grave concern over the delay in trial commencement and issued a rare directive. “The learned Trial Court is requested to endeavour to conclude the trial within one year,” he said, invoking the exceptional circumstances of the case.

The Court also directed the State of Maharashtra to ensure that the accused are produced—either physically or via video conferencing—on every date of hearing. The Public Prosecutor was further instructed to facilitate prompt examination of all witnesses.

Significantly, the judge addressed the applicant’s opposition to the time-bound trial. “This contention shows the applicant’s disinterest in speedy justice and possible intent to delay the process for bail leverage,” Justice Jamdar observed, firmly rejecting the argument.

"Gravity, Not Delay, Decides Bail in Heinous Crimes"

Concluding the 29-page judgment, the Court held:
“This is a serious case where three accused sexually assaulted minor boys. The material shows the applicant’s active involvement. No case is made out for grant of bail either on merits or under Section 436A CrPC.”

The bail application was dismissed with a direction to expedite trial completion—signaling once again that in cases involving the sexual abuse of children, the justice system will not afford leniency merely due to procedural delay.

Date of Decision: 05 Aug 2025