The Bombay High Court at Nagpur has reaffirmed that anticipatory bail must be granted where the alleged offence lacks physical contact, the accused has cooperated with investigation, and the punishment is relatively minor. This decision reinforces the principle that arrest is not automatic even in cases involving sexual misconduct under the new Bhartiya Nyaya Sanhita.
Background & Facts
The Dispute
The applicant, Dr. Vinod Ghanshyam Mhashakhetri, a medical practitioner, is accused of seeking sexual favours from a subordinate nurse through WhatsApp messages. The allegations centre on an implied quid pro quo: the applicant allegedly threatened to withhold her salary increment unless she complied with his sexual demands. There is no allegation of physical contact, assault, or coercion beyond digital communication.
Procedural History
- Crime No. 116/2025 registered at Police Station Mulchera, Gadchiroli under Sections 75(2) and 78(2) of the Bhartiya Nyaya Sanhita, 2023
- Applicant was granted ad-interim protection by this Court on 24.12.2025
- Applicant appeared before the police as directed and fully cooperated
- Mobile phone seized; charge-sheet filed
- No further evidence or material requiring personal custody of the applicant
Relief Sought
The applicant sought confirmation of the ad-interim protection from arrest, arguing that his cooperation, professional status, and absence of physical contact rendered detention unnecessary.
The Legal Issue
The central question was whether non-physical sexual harassment via digital communication, punishable under Section 75(2) of the Bhartiya Nyaya Sanhita, justifies automatic arrest when the accused has cooperated with investigation, the punishment is limited to three years, and no further evidence is likely to be recovered from the person.
Arguments Presented
For the Petitioner
The applicant’s counsel relied on Arnesh Kumar v. State of Bihar and Sakshi v. State of Maharashtra to argue that arrest cannot be automatic merely because an offence under the BNS is alleged. He emphasized that Section 75(2) does not mandate arrest, and that the applicant’s conduct - cooperation, no flight risk, no threat to evidence - satisfied the triple test for anticipatory bail. He further contended that digital messages alone, without physical contact, do not elevate the case to one requiring custodial interrogation.
For the Respondent
The State, through the APP, argued that the nature of the offence under Section 75(2) - which criminalizes sexual harassment in the workplace - demanded strict deterrence. It contended that even non-physical harassment can cause severe psychological harm and that arrest is necessary to ensure trial integrity. The State did not dispute the applicant’s cooperation but insisted that the gravity of the offence warranted custodial interrogation.
The Court's Analysis
The Court examined the nature of the alleged conduct, the punishment prescribed, and the applicant’s conduct during investigation. It noted that Section 75(2) prescribes imprisonment up to three years, which falls under the category of non-bailable but non-capital offences. The Court observed that the applicant had not fled, had surrendered voluntarily, and had no history of non-cooperation.
"The applicant has fully cooperated with the investigation. His mobile phone has been seized, the charge-sheet filed, and there is no indication that any further evidence can be recovered from his person. The absence of physical contact further weakens the necessity for arrest."
The Court distinguished this case from those involving physical assault or threats to life, noting that digital harassment, while serious, does not inherently create a risk of evidence tampering or witness intimidation when the device is already in police custody. It held that the presumption of innocence and the proportionality principle under Article 21 require that arrest be reserved for cases where it is genuinely necessary.
The Verdict
The applicant won. The Court confirmed the ad-interim protection from arrest, holding that non-physical sexual harassment under Section 75(2) BNS does not justify automatic arrest where the accused has cooperated, the device is seized, and the punishment is limited to three years. The applicant must continue to appear before the police as directed.
What This Means For Similar Cases
Arrest Is Not Automatic for Digital Harassment
- Practitioners must now argue that digital-only harassment under Section 75(2) BNS does not trigger mandatory arrest
- The seizure of digital devices and filing of charge-sheet negates the need for custodial interrogation
- Courts must apply the triple test rigorously: possibility of flight, tampering, and witness intimidation
Cooperation Mitigates Risk of Arrest
- Voluntary appearance before police, no history of evasion, and submission of electronic evidence are strong factors in favour of bail
- Courts should not presume hostility merely because the offence involves gender-based misconduct
- The burden shifts to the State to demonstrate why arrest is necessary beyond the mere allegation
Proportionality Governs BNS Arrest Decisions
- The punishment ceiling under Section 75(2) (three years) signals legislative intent to treat such offences as serious but not warranting pre-trial detention
- Judges must weigh the nature of communication (threats vs. suggestive messages) and context of power dynamics without defaulting to arrest
- This judgment aligns with Arnesh Kumar and reinforces that arrest is an exception, not a rule under the CrPC and BNS framework
