Facilitating Sexual Assault as a Ground for Denial of Bail under BNS, 2023 and SC/ST (POA) Act: Commentary on Sri Syed Parveez Mushraff v. State of Karnataka

1. Introduction

The decision of the Karnataka High Court in Sri Syed Parveez Mushraff v. State of Karnataka, Criminal Appeal No. 1493 of 2025, decided on 4 September 2025 by Hon'ble Mr. Justice S. Rachaiah, concerns an appeal under Section 14A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC/ST (POA) Act”) seeking regular bail.

The appellant (accused No. 2) stood charged in Crime No. 205/2025, later numbered as Spl. C.C. No. 1119/2025, on the file of the LXX Additional City Civil and Sessions Judge, Bengaluru (CCH‑71), for offences under the Bharatiya Nyaya Sanhita, 2023 (“BNS”) and the SC/ST (POA) Act.

The central allegations are that the victim, a 19‑year‑old woman, travelling alone by train from Kerala to Bengaluru, was wrongfully restrained at night with her cousin; accused No. 1 allegedly took her to a nearby place and sexually assaulted her, while the appellant (accused No. 2) allegedly physically restrained the cousin (C.W.2) and threatened him, thereby facilitating the commission of rape. The case is also prosecuted under the SC/ST (POA) Act, indicating that the victim belongs to a Scheduled Caste or Scheduled Tribe and that offences were committed attracting special protection provisions.

The High Court ultimately dismissed the appeal and refused to grant bail, emphasising:

The heinous nature of the alleged sexual offence.
The facilitative role of the appellant as a co‑accused.
The need to preserve public confidence, especially among women, in their safety and independence.

While the judgment does not elaborate on complex doctrinal issues or cite case‑law by name, it is significant for the manner in which it:

Applies settled principles of bail to a facilitator‑co‑accused in a sexual offence.
Integrates victim‑centric and societal considerations into the bail analysis.
Interprets bail discretion strictly in the context of offences under BNS and the SC/ST (POA) Act.

2. Summary of the Judgment

2.1 Procedural posture

The appellant is accused No. 2 in Spl. C.C. No. 1119/2025.
He sought regular bail before the Special Court (LXX Addl. City Civil and Sessions Judge, Bengaluru) in Crl. Misc. No. 4289/2025, which was rejected.
He filed a criminal appeal under Section 14A(2) of the SC/ST (POA) Act before the High Court challenging the denial of bail.

2.2 Statutory provisions invoked

The appellant faces prosecution for the following alleged offences:

Under the Bharatiya Nyaya Sanhita, 2023:
- Sections 115(2), 126(2), 351(2), 351(3), 352, 64, and read with Section 3(5).
- Though the judgment does not spell out the textual content of each section, from the context these pertain broadly to:
  - Sexual offences / rape‑related provisions,
  - wrongful restraint / assault, and
  - common intention / abetment‑type liability (similar in spirit to former IPC concepts).
Under the SC/ST (POA) Act, 1989:
- Section 3(1)(r) – intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or Scheduled Tribe.
- Section 3(1)(w)(i) & (ii) – offences of outraging the modesty of a woman belonging to SC/ST, including sexual harassment, assault, and use of criminal force.
- Section 3(2)(v) – committing any offence punishable with imprisonment of ten years or more on the ground that the victim is a member of SC/ST.

2.3 Factual matrix (as per prosecution case)

The prosecution version, as accepted prima facie at the bail stage, is:

The victim, aged about 19 years, resided with her parents but had gone to Kerala (Kattappan village) where her sister and brother‑in‑law worked in a cardamom garden.
Disinclined to continue working, she decided to return to her native place. On 01.04.2025, she went to Ernakulam Railway Station and, as instructed, boarded a Bengaluru‑bound train and alighted at K.R. Puram Railway Station around 1:30 a.m. on 02.04.2025.
At the station, she met her cousin brother (C.W.2), and they were proceeding towards Mahadevapura to have food.
During this time, the appellant and another accused allegedly wrongfully restrained them and assaulted them.
Accused No. 1 allegedly took the victim away to a nearby place and had sexual intercourse with her without her consent (the foundation for the rape charge).
The appellant (accused No. 2) is alleged to have:
- Held C.W.2 (the cousin) down physically, and
- Threatened him continuously, thereby facilitating the sexual assault by accused No. 1.
The victim cried for help; public persons gathered, and when the accused attempted to flee, one of them was apprehended by the public and handed over to the police.
The police registered Crime No. 205/2025, investigated, and filed a charge‑sheet against two accused.

2.4 Defence submissions

The appellant’s counsel argued, in essence:

The appellant is innocent and has been falsely implicated.
The specific overt act attributed to accused No. 2 does not involve the actual commission of rape; as per statements, it is accused No. 1 alone who had sexual intercourse with the victim.
The appellant is said only to have held C.W.2, the cousin of the victim. This, according to the defence, does not warrant denial of bail, especially where the principal act of rape is not directly attributed to him.
On this distinct role, and in view of the presumption of innocence, regular bail should be granted.

2.5 Prosecution submissions

The Additional State Public Prosecutor for the State opposed bail, contending:

The appellant’s act of holding, restraining, and threatening C.W.2 was integral to the commission of rape by accused No. 1.
The appellant thereby facilitated the rape and was actively participating in a joint criminal enterprise.
The conduct of both accused is so heinous and egregious that it undermines women’s sense of security and raises doubts about whether they truly enjoy independence.
To maintain public confidence, particularly among young women, and to deter such conduct, the bail application ought to be rejected.

2.6 Decision and key findings

The High Court dismissed the appeal and refused to grant bail, on the following reasoning:

Role of the Appellant: The Court accepted, on a prima facie reading of the record, that:
- The appellant and the co‑accused jointly restrained the victim and her cousin, and
- The appellant held C.W.2 and threatened him while accused No. 1 raped the victim.
- This facilitative conduct shows that the appellant had an intention to commit rape and that he enabled and supported the commission of the offence.
Heinousness of the offence: The Court characterised the conduct as a heinous offence against an adolescent girl, one who had dreams for her future. The trauma inflicted was said to leave a permanent scar and long‑lasting agony.
Parameters for grant of bail: The Court reiterated three standard parameters to be considered while deciding bail:
- (a) The nature of accusation and the severity of punishment upon conviction, along with the nature of supporting evidence.
- (b) Reasonable apprehension of tampering with witnesses or threats to the complainant.
- (c) Prima facie satisfaction of the Court regarding the support for the charge.
The Court emphasised that while personal life and liberty are recognised as fundamental rights, the power to grant bail must be exercised “sparingly with utmost care and caution”, especially in serious cases.
Societal and normative emphasis:
- The Court invoked a sloka from Manusmriti:
  “Yatra naryastu pujyante ramante tatra Devata,
  yatraitaastu na pujyante sarvaastatrafalaah kriyaah”
  explaining it as: where women are honoured, divinity blossoms; where women are dishonoured, all actions, no matter how noble, remain unfruitful.
- The Court also invoked a statement attributed to Mahatma Gandhi on freedom:
  “The day a woman can walk freely on the road at night, that day we can say that India has achieved independence.”
- These references were deployed to stress the importance of women’s safety, dignity, and freedom of movement as a core concern in the exercise of bail discretion.
Outcome: On a cumulative assessment of:
- the gravity and heinousness of the offence,
- the facilitative role of the appellant, and
- the need to reinforce confidence in women’s safety,
the High Court found no justification to interfere with the Special Court’s order and thus dismissed the appeal and rejected the request for regular bail.

3. Detailed Analysis

3.1 Statutory and procedural framework

3.1.1 Appeal under Section 14A(2) of the SC/ST (POA) Act

Section 14A of the SC/ST (POA) Act provides a special appellate route against certain orders passed by Special Courts, including orders relating to grant or refusal of bail. Sub‑section (2) enables appeals to the High Court by the victim, the accused, or the State, as the case may be, against an order granting or refusing bail.

This case is an appeal by the accused against the refusal of bail. The High Court was therefore exercising a statutory appellate jurisdiction, not merely revisional or supervisory jurisdiction. In principle, this allows the Court to reassess the material and reach an independent conclusion, but within the usual bail‑stage constraints of not conducting a mini‑trial.

3.1.2 Interaction of BNS, 2023 and the SC/ST (POA) Act

The accused is charged both under:

Bharatiya Nyaya Sanhita, 2023 – replacing the Indian Penal Code and codifying general criminal offences such as rape‑related offences, wrongful restraint, assault, and provisions akin to common intention / abetment.
SC/ST (POA) Act – a special legislation designed to protect members of Scheduled Castes and Scheduled Tribes from atrocities, including sexual offences that are aggravated by the victim’s caste/tribe status.

The combined effect is:

The case involves serious, non‑bailable offences under BNS.
The SC/ST (POA) Act enhances the gravity of these offences and imposes a more stringent bail regime, particularly through:
- Section 18 (bar on anticipatory bail), and
- Enhanced penalties for offences committed against SC/ST victims.

Although the present proceeding concerns regular bail (not anticipatory), the existence of Section 3(2)(v) and similar aggravated provisions is a powerful factor in assessing nature of accusation and severity of punishment, one of the core bail parameters identified by the Court.

3.2 Factual appreciation and the role of the appellant

A central theme in the judgment is the Court’s treatment of the “overt act” of the appellant, which the defence sought to use as a ground for bail.

The defence argument: the appellant did not himself commit rape; he only held C.W.2. Therefore, his culpability is lesser and he deserves bail.
The Court’s response: restraining C.W.2 and threatening him was not an innocuous or limited involvement but a critical facilitative act. It enabled the completion of the rape by accused No. 1.

The Court goes further to state that the appellant had an “intention to commit rape on the victim”. This is an inference drawn from:

the appellant’s active presence at the scene,
his participation in the initial wrongful restraint and assault, and
his act of controlling and threatening the victim’s cousin to prevent intervention or rescue.

This approach aligns with classic doctrines of:

Common intention / common object: where multiple persons act pursuant to a shared plan or intention, liability may extend equally to those who facilitate the crime, even if they do not execute every physical element.
Abetment / facilitation: assistance, instigation, or intentional aid to the commission of an offence attracts criminal liability comparable to that of the principal offender.

At the bail stage, the Court does not finally determine guilt, but it is sufficient that there is prima facie material supporting the inference of common intention or abetment. The Court clearly finds such prima facie support from the complaint and the statements on record.

3.3 The Court’s articulation of bail principles

3.3.1 The three parameters for bail

The Court summarises the settled principles for grant or denial of bail in three points:

Nature of accusation and severity of punishment; quality of supporting evidence – The more serious and heinous the offence, and the greater the punishment if convicted, the more cautious the Court must be. A strong evidentiary foundation aggravates this concern.
Reasonable apprehension of tampering or threat – If there is a risk that the accused will influence, intimidate, or otherwise interfere with witnesses or the complainant, bail may be refused.
Prima facie satisfaction in support of the charge – The Court must find that, on the face of the record, there is credible material pointing towards the accused’s involvement in the alleged offences.

These echo longstanding Supreme Court jurisprudence on bail, where the discretionary power to grant bail is circumscribed by such factors and is never mechanical.

3.3.2 Balancing liberty with caution

The Court acknowledges that personal life and liberty are fundamental rights (implicit reference to Article 21 of the Constitution), but adds an important qualification:

The right to liberty, in the context of serious criminal accusations, must be exercised “sparingly with utmost care and caution”.

In effect, the Court is emphasising that:

The principle “bail is the rule, jail is the exception” is not absolute and must be weighed against the nature of the crime and the interests of society and victims.
In cases of heinous sexual offences, particularly those involving vulnerable victims and aggravated by SC/ST (POA) provisions, the threshold for granting bail is significantly higher.

3.3.3 Application to the present facts

Applying these parameters, the Court implicitly reasons as follows:

Nature of accusation & severity:
- Alleged rape of a 19‑year‑old woman, at night, in a public‑movement context, combined with physical restraint of her relative.
- Charges under BNS and aggravated provisions of SC/ST (POA) Act (especially Section 3(2)(v)) imply long‑term imprisonment upon conviction.
- The Court expressly terms the offence as “heinous in nature”.
Apprehension of threat / tampering:
- Though not elaborated in detail, the combination of:
  - the use of threats against C.W.2 during the incident, and
  - the continuing vulnerability of the victim,
  supports an implicit concern that release on bail may embolden or enable further intimidation or influence.
Prima facie support for the charge:
- The Court refers to the record and finds that the appellant:
  - participated in the initial restraint and assault, and
  - held and threatened C.W.2 while the rape was committed by accused No. 1.
- This suffices, in the Court’s view, to establish a prima facie case of shared intention and facilitation of the sexual offence.

On these bases, the Court concludes that bail is not warranted.

3.4 Societal and normative considerations: Manusmriti and Gandhiji

An unusual and noteworthy aspect of this judgment is its reliance on scriptural and philosophical references to buttress the decision:

Manusmriti Sloka – The Court quotes:
“Yatra naryastu pujyante ramante tatra Devata,
yatraitaastu na pujyante sarvaastatrafalaah kriyaah”
with the explanation that where women are honoured, divinity flourishes and where they are dishonoured, all actions, however noble, become fruitless.
Mahatma Gandhi’s statement on freedom – The Court cites:
“The day a woman can walk freely on the road at night, that day we can say that India has achieved independence.”

These quotations serve multiple purposes:

They provide a normative backdrop emphasising the centrality of women’s dignity and safety in society.
They signal that the Court understands the incident not merely as an individual crime but as part of a broader issue of women’s freedom of movement and security in public spaces.
They operate as a public message: judges often use such language to communicate values and expectations to the wider community, particularly in sensitive offences.

Importantly, while these references are not themselves binding law, they influence the tone and direction of the Court’s discretion:

Bail is refused not only because legal criteria are met, but also because granting bail in such circumstances is viewed as socially and morally unacceptable, potentially undermining women’s confidence in the legal system.

3.5 Precedents and comparative jurisprudence

The judgment, as provided, does not cite prior decisions by name. However, the principles it applies are consistent with broader Indian bail jurisprudence.

3.5.1 General bail jurisprudence

Though not expressly mentioned, the Court’s approach reflects established Supreme Court lines of reasoning, including:

The balancing of:
- the right to personal liberty (Article 21), and
- the interests of society, the victim, and the integrity of the trial process.
Recognition that in serious non‑bailable offences, particularly involving violence or sexual assault, the threshold for granting bail is higher, and additional care is warranted.

3.5.2 SC/ST (POA) jurisprudence on stringency of bail

Independently of this judgment, the Supreme Court and High Courts have repeatedly emphasised that the SC/ST (POA) Act creates a heightened protective framework for SC/ST victims, which often translates into stringent bail conditions. Although the Court here does not recite those authorities, its refusal to grant bail fits that established pattern:

Where an offence carries enhanced punishment because the victim belongs to SC/ST, and particularly where Section 3(2)(v) is invoked, courts are generally cautious about releasing accused on bail at an early stage.

3.5.3 Co‑accused and facilitators in sexual offences

The High Court’s stance that a facilitator of rape, who restrains a third party to enable the assault, can be treated with similar seriousness as the principal offender is consistent with:

Longstanding principles that:
- abetment or aiding in a sexual offence can attract the same punishment, and
- common intention (reflected here in the use of Section 64, BNS) justifies treating a group of offenders collectively responsible.
Case‑law under the earlier IPC where look‑outs, restrainers, or intimidators have been treated as fully liable for the substantive offence during trial.

What is notable here is the translation of this substantive criminal law principle into bail jurisprudence: at the bail stage, the Court refuses to draw a sharp line between the rapist and the facilitator, treating both as part of a single heinous criminal enterprise.

3.6 Impact on future cases and the relevant area of law

3.6.1 Co‑accused facilitation and parity in bail

This judgment reinforces a significant principle for future bail applications:

A co‑accused who facilitates a sexual assault—by restraining, threatening, or otherwise enabling the crime—may be treated as seriously as the principal offender for the purposes of bail.

Practical implications:

Defences based on “limited overt act” where the co‑accused did not personally commit penetration but facilitated the offence will face greater difficulty in securing bail.
Trial courts in Karnataka dealing with similar fact situations may rely on this reasoning to reject bail for co‑accused facilitators in sexual offences, particularly when combined with SC/ST (POA) charges.

3.6.2 Victim and society‑centric bail jurisprudence

By foregrounding:

the victim’s trauma,
the broader issues of women’s independence and safety at night, and
the need to secure public confidence,

the Court is strengthening an emerging trend in Indian bail jurisprudence: a more explicitly victim‑centric and society‑centric approach in serious sexual and caste‑atrocity cases.

This has several knock‑on effects:

Counsel will need to address, not only procedural and evidentiary factors, but also public interest considerations when arguing bail in such cases.
Accused may find it more difficult to secure bail in the early stages of prosecution for serious sexual offences under BNS coupled with SC/ST (POA) provisions, especially where there is a prima facie case.

3.6.3 Symbolic guidance on women’s freedom of movement

The invocation of Gandhiji’s statement about a woman walking freely at night, together with the Manusmriti sloka, sends a strong message:

Court decisions in bail matters can be used as a platform to affirm women’s right to occupy public spaces safely, including late at night.
This may encourage future benches to explicitly reference constitutional values of equality, dignity, and autonomy when dealing with similar fact patterns.

3.6.4 Interaction with the new BNS regime

This case is among the early High Court decisions applying the Bharatiya Nyaya Sanhita, 2023 in conjunction with the SC/ST (POA) Act. While the judgment does not interpret specific section texts in depth, it implicitly affirms that:

Offences under BNS that correspond to serious sexual and violent crimes are to be treated with equivalent or greater seriousness than their IPC predecessors.
There is continuity of stringent bail standards for such offences, even under the new statutory framework.

4. Complex Concepts Simplified

For readers not deeply familiar with criminal procedure and special statutes, the following explanations may be helpful.

4.1 Regular bail

Regular bail refers to release from custody during the pendency of investigation or trial after a person has been arrested. It is different from:

Anticipatory bail – protection from arrest in anticipation of possible arrest (before arrest occurs).
Interim bail – a temporary arrangement pending a fuller hearing of the bail application.

In this case, the appellant was already in custody and sought regular bail.

4.2 SC/ST (POA) Act

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is a special law created to protect members of Scheduled Castes and Scheduled Tribes from:

Violence,
Humiliation,
Discrimination, and
Sexual offences specifically targeted at them because of their social identity.

It provides:

Special courts for speedy trial,
Harsher punishments, and
Stringent bail conditions, especially via Section 18 (bar on anticipatory bail) and the requirement of a strong prima facie case before granting bail.

4.3 Bharatiya Nyaya Sanhita, 2023 (BNS)

The BNS is the new general penal code that has replaced the Indian Penal Code. It reorganises and renumbers many offences, including:

Offences related to rape and sexual assault,
Wrongful restraint and assault, and
Abetment, conspiracy, and common intention.

Although the judgment lists several BNS sections (115(2), 126(2), 351(2), 351(3), 352, 64, 3(5)), it does not break down their content. For present purposes, it is sufficient to know that they cover:

Sexual offences (rape‑related),
Wrongful restraint and assault, and
Joint liability / facilitation.

4.4 Prima facie case

A prima facie case means that, on the face of the available evidence, there is enough material to support the allegations. It does not mean that the accused is proven guilty; it means there is sufficient basis to:

Proceed to trial, and
In bail matters, justify either granting or refusing bail based on the seriousness and support for the charges.

4.5 Overt act and facilitation

An overt act is a specific, identifiable action done by an accused person in furtherance of a crime. In a group crime:

One person may commit the core physical act (e.g., penetration in a rape case).
Others may perform supporting acts, such as:
- Blocking exits,
- Holding down a victim or witness,
- Threatening or intimidating,
- Providing weapons or lookout services.

The law often treats such facilitators as equally responsible if they share the intention to commit the main offence and their acts enable or encourage it.

4.6 Heinous offence

A heinous offence generally refers to a crime that is:

Extremely grave and shocking,
Involving severe physical or psychological harm, and
Strongly condemned by society, such as:
- Rape and gang rape,
- Murder,
- Brutal assaults.

Courts routinely regard sexual assault, especially on young women, at night, and in vulnerable circumstances as a paradigmatic example of a heinous offence. This classification influences bail decisions by tilting the balance towards continued custody pending trial.

5. Conclusion: Key Takeaways and Significance

The decision in Sri Syed Parveez Mushraff v. State of Karnataka is a significant reaffirmation and contextual application of:

Stringent bail standards in cases of serious sexual offences under the Bharatiya Nyaya Sanhita, 2023, especially when read with the SC/ST (POA) Act.
The principle that facilitators and co‑accused who restrain or threaten others to enable a rape can be treated with similar gravity as the principal offender at the bail stage.
A victim‑centric and society‑oriented approach to bail, explicitly foregrounding the dignity, safety, and independence of women in public spaces.

By:

IDENTIFYING the appellant’s conduct as an integral part of the joint enterprise to commit rape,
EMPHASISING the heinousness of the offence and the lasting scar on the victim’s life, and
ANCHORING its reasoning in both legal parameters and normative commitments (via Manusmriti and Gandhiji’s quotation),

the High Court concludes that the appellant does not deserve the benefit of regular bail at this stage. The judgment will likely influence:

How trial courts in Karnataka handle bail for co‑accused facilitators in sexual offences, particularly under the SC/ST (POA) Act.
The way in which women’s safety and public confidence are invoked as legitimate factors within the bail calculus.

In the broader legal context, the ruling underscores that the transition to the BNS, 2023 does not dilute the seriousness with which courts treat sexual offences and atrocities against SC/ST women. Rather, it confirms a trajectory towards more protective and stringent bail jurisprudence in cases where the alleged crime deeply implicates concerns of dignity, equality, and freedom of movement for women and vulnerable communities.

Facilitating Sexual Assault as a Ground for Denial of Bail under BNS, 2023 and SC/ST (POA) Act: Commentary on Sri Syed Parveez Mushraff v. State of Karnataka (Karnataka HC, 04.09.2025)