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Justice S C Dharmadikari refused to discharge Kundan Raj Borgohain (23) saying that the prosecution should be given a chance to establish the accused's guilt in the case.
Kundan and five others have been arrested in April 2009 for allegedly raping an American national studying at the TISS. Kundan had approached the high court seeking discharge from the case on the grounds that there is no case against him.
According to the police, the 23-year-old victim was raped at Kundan's flat in suburban Andheri. Kundan is presently out on bail.
Kundan's lawyer Harshad Ponda argued that the girl's statement reveals that Kundan did not take part in the alleged gangrape.
"He only welcomed his friends into his house," Ponda said, adding that Kundan did not share the 'common intention' to rape the girl.
According to the girl's complaint, she met Kundan's friends at a pub where they allegedly spiked her drink and took her to Kundan's rented flat in suburban Andheri and raped her.
Public Prosecutor Yogesh Nakhwa argued that Kundan seemed to know that the girl was being brought to his flat because he had instructed the building's watchman to let in his friends and the girl.
Rejecting Kundan's discharge plea, Justice Dharmadhikari observed that at the stage of framing of charges, Kundan's case 'can not be seen in isolation' and the watchman's statement indicated that he knew the girl.
"Prosecution must be given the opportunity to establish (at the trial) that he acted in concert with others," the judge said, upholding sessions court's earlier order refusing to discharge Kundan. Of the six accused, only Kundan is out on bail. The sessions court is likely to frame charges on Tuesday.