Written by Omkar GokhaleMumbai | October 10, 2025 01:24 AM IST 4 min readThe HC added that it “cannot remain a silent spectator” in such a case and said the applicant's prolonged incarceration “would amount to an unjust deprivation of constitutional right”.The Bombay High Court granted bail to a transgender person booked for sexual assault of a minor victim at an institution where the accused was employed as a helper in September, 2023.The HC granted bail on humanitarian ground, social background and considering the medical condition that the bail applicant was suffering from HIV, undergoing antiretroviral therapy. The judge also noted the applicant “has been in custody since January 17, 2024, a period sufficient for completion of investigation and filing of the chargesheet.”“The possibility of tampering with evidence or influencing witnesses appears remote, as the victim is under institutional care and protection,” the HC noted“The offences alleged are grave, but at this stage, it cannot be said that the applicant’s release would cause prejudice to the prosecution. The principle that bail is the rule and jail the exception applies with greater force when the accused suffers from serious medical ailments requiring specialized treatment,” a single-judge bench of Justice Amit Borkar recorded in October 6 order.As per prosecution, the applicant was arrested by Raigad police for offences punishable under Sections 377 (unnatural offences) and 201 (causing disappearance of evidence) of IPC along with provisions of Protection of Children from Sexual Offences Act (POCSO), 2012 and Information Technology Act, 2000.The police said that the applicant is a transgender person who has undergone a sex change operation and was employed as a part-time worker and labourer at the said institution.The superintendent of a children’s institution lodged a complaint after the minor victim disclosed that the applicant had sexually assaulted him when he was staying at the previous organisation where the applicant worked as a helper, after which the FIR was registered.Story continues below this adAdvocate Sushan N Mhatre, appointed by High Court Legal Services Committee to represent the accused, submitted that the 22-year-old accused belonging to the LGBTQ community is advised to undergo fistula related surgery.Mhatre also argued that the rules mandated expeditious disposal of cases involving accused persons suffering from HIV and referred to past judgment granting bail on medical grounds to a person suffering from HIV.However, prosecution opposed the plea stating that all necessary medical facilities were being provided to the applicant at the prison hospital and regular referrals to a state-run hospital.Justice Borkar, after examining material on record observed that while “the allegations against the applicant are serious in nature, the trial is yet to commence” even though chargesheet has been filed and probe is complete, therefore his continued detention was not necessary for any further investigation.Story continues below this adThe court then perused a medical report submitted by the prison hospital and observed that the applicant required “specialised care, surgical intervention, and continuous follow-up in a tertiary hospital setting” and medical attention beyond the routine facilities available in prison.The HC added that it “cannot remain a silent spectator” in such a case and said the applicant’s prolonged incarceration “would amount to an unjust deprivation of constitutional right”.“The applicant belongs to the LGBTQ community, a section recognized as vulnerable due to social stigma and discrimination. Courts are duty-bound to ensure that such persons are not exposed to further humiliation or neglect merely because of their gender identity. The law requires equal protection and humane treatment for all citizens, irrespective of gender or identity,” the HC added.Granting bail, the HC directed the applicant to ensure his presence during the trial and no contact with victim or witnesses in the case.Stay updated with the latest - Click here to follow us on Instagram© The Indian Express Pvt LtdTags:Bombay High CourtMumbai