The Bombay High Court has affirmed that the mere classification of an offence as non-bailable under the Bharatiya Nyaya Sanhita, 2023, does not automatically preclude bail where the allegations, though serious, lack elements of extreme violence or prior criminality. In this case, bail was granted to an accused charged with persistent stalking and harassment, emphasizing proportionality and the absence of risk to investigation.
Background & Facts
The Dispute
The applicant, Rushabh Dattrao Solanke, is accused of stalking and harassment of a female employee over a period of more than two years. The complainant, a 35-year-old woman, alleged that the applicant obtained her mobile number at her workplace and began contacting her repeatedly from March 2024 under false pretexts. Despite her repeated warnings, he continued to call, send messages, and physically follow her, creating a climate of fear and intimidation.
Key Facts
- The complainant first noticed unwanted contact in March 2024
- The applicant sent multiple unsolicited messages and made repeated phone calls
- He allegedly tracked her movements and appeared near her workplace
- She lodged a formal complaint on 12.04.2026
- Crime No. 165/2026 was registered at Sengaon Police Station, District Hingoli
- The offences invoked are under Sections 333, 78, 126(2), and 351(4) of the Bharatiya Nyaya Sanhita, 2023
- No prior criminal record of the applicant was brought on record
- The applicant was arrested on 15.04.2026 and has been in judicial custody since 16.04.2026
Procedural History
- 12.04.2026: FIR registered at Sengaon Police Station
- 15.04.2026: Applicant arrested
- 16.04.2026: Commencement of judicial custody at MCR
- 30.04.2026: Bail application rejected by the Magistrate
- 28.05.2026: Bail application heard before the Vacation Court, Bombay High Court (Aurangabad Bench)
Relief Sought
The applicant sought regular bail on the grounds that he has no prior criminal history, the offences are not punishable with life imprisonment or death, and his continued detention is not necessary for the investigation or public interest.
The Legal Issue
The central question was whether bail can be granted in cases involving non-bailable offences under the Bharatiya Nyaya Sanhita, 2023, where the accused has no prior record, the allegations do not involve physical violence or threat to life, and the accused has already been in custody for over a month.
Arguments Presented
For the Appellant/Petitioner
The applicant’s counsel, Mr. S. S. Rathi, argued that the offences under Sections 333, 78, 126(2), and 351(4) of the Bharatiya Nyaya Sanhita, 2023, while non-bailable, are not of a heinous or life-threatening nature. He emphasized that the complainant was not physically assaulted, no weapon was used, and there was no evidence of prior similar conduct. He cited Arnesh Kumar v. State of Bihar to argue that arrest and prolonged custody must be justified by necessity, not automaticity. He submitted that the applicant’s detention for over 40 days served no investigative purpose and that conditions could mitigate any risk of tampering.
For the Respondent/State
The State, represented by Mr. A. R. Kale, APP, did not oppose bail outright but urged the Court to impose strict conditions. He acknowledged the seriousness of stalking under the new Code but conceded that the facts did not indicate a threat to public order or risk of flight. He did not contest the absence of prior criminality or the length of custody.
The Court's Analysis
The Court examined the nature of the allegations and the statutory framework under the Bharatiya Nyaya Sanhita, 2023. It noted that while the offences are classified as non-bailable, the legislature did not categorize them as among the most grave crimes warranting automatic denial of bail. The Court emphasized that the principle of proportionality must guide bail decisions, particularly where the accused has no prior record and the alleged conduct, though persistent, lacks elements of physical violence or threat to life.
"Looking to nature of allegations, further detention of Applicant would not be necessary. Nothing is brought on record to show that Applicant had previously involved in similar type of offences. The trial would take its own course. The alleged offences are not punishable with life imprisonment or capital punishment."
The Court held that the applicant’s prolonged custody of over one and a half months had already served the purpose of securing his presence. The Court further observed that the complainant’s safety could be adequately protected through conditions, and there was no indication that the applicant would interfere with witnesses or evidence. The Court distinguished this case from those involving sexual assault, threats of murder, or organized crime, where denial of bail is justified.
The Verdict
The applicant succeeded. The Court allowed the bail application and directed his release on furnishing personal bond and surety bond of Rs. 25,000 each. He is required to: (i) appear before the police station as summoned; (ii) refrain from contacting the complainant or any witness directly or indirectly; (iii) not tamper with evidence; and (iv) fully cooperate with the investigation. The Court emphasized that any breach of these conditions will result in immediate cancellation of bail.
What This Means For Similar Cases
Bail Is Not Automatically Denied for Non-Bailable Stalking Offences
- Practitioners may now argue that non-bailable status under BNS does not equate to automatic denial of bail when the conduct lacks physical violence or prior criminality
- The Court’s reasoning reinforces that proportionality and necessity must override mechanical application of bail provisions
Conditions Can Replace Custody in Non-Violent Stalking Cases
- Courts are likely to impose tailored conditions - no contact, no digital communication, regular police reporting - as sufficient safeguards
- This sets a precedent for bail in cases under Sections 333 and 126(2) BNS, where the harm is psychological and persistent, not physical
Pre-Custody Duration Matters in Bail Decisions
- Detention exceeding 40 days without trial progress strengthens the applicant’s case for release
- Courts may now consider time served as a factor in balancing individual liberty against investigative needs
