Allahabad High Court
MUKESH ALIAS BAUWAversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- KRISHAN PAHAL
Holding
The Court held that the applicant is entitled to bail and granted the bail application.
Summary
Mukesh alias Bauwa, accused under IPC sections 376Ka and 376Kha and POCSO Act sections 5 and 6 for a rape offence, has been in judicial custody since March 2020. He filed a second bail application, claiming innocence, lack of medical corroboration of the alleged rape, and that his prolonged pre‑trial detention violates his Article 21 rights. The trial has progressed slowly, with only five witnesses examined and no charge framed. Citing Supreme Court decisions emphasizing the right to a speedy trial and that bail should not be withheld as punishment, the Court found the applicant had made out a case for bail. Consequently, the High Court granted bail on personal bond and sureties, subject to standard conditions.
Issues considered
- Whether bail should be granted to an under‑trial accused of offences under Sections 376Ka, 376Kha IPC and POCSO Act given the seriousness of the charges.
- Whether the prolonged pre‑trial detention of over six years violates the accused's right to speedy trial under Article 21.
- Whether the absence of medical corroboration and the applicant's claim of innocence justify bail.
Legislation cited
- Indian Penal Code — s. 376Ka, 376Kha
- National Drug Dependence Recovery Act — s. 37
- Protection of Children from Sexual Offences (POCSO) Act — s. 5, 6
Subjects
- bail
- speedy trial
- pre‑trial detention
- rape
- POCSO
- Article 21
- medical evidence
- under‑trial prisoner
- Supreme Court precedents
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 17074 of 2025
Mukesh Alias Bauwa
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Pradeep Kumar, Pushp Raj, Sujeet
Gaurav
Counsel for Opposite Party(s) : G.A., Shalini Pandey
Court No. - 65
(Sl. No. 80 out of 259)
HON'BLE KRISHAN PAHAL, J.
1. List has been revised. As informed by learned A.G.A. notice to the
informant has been served on 16.5.2025.
2. Heard Sri Pradeep Kumar, learned counsel for the applicant, Ms. Shalini
Pandey, learned counsel for opposite party no.3 as well as Sri Sunil Kumar,
learned A.G.A. for the State and perused the material placed on record.
3. Applicant seeks bail in Case Crime No. 19 of 2020, under Sections
376Ka, Kha IPC and 5/6 POCSO Act, Police Station Sultanpur Ghosh,
District Fatehpur, during the pendency of trial.
4. This is the second bail application filed on behalf of the applicant. The
first one was rejected by a co-ordinate Bench of this Court vide order
dated 18.5.2023 passed in Criminal Misc. Bail Application No.8091 of
2021.
5. Learned counsel for the applicant has argued that the applicant is
absolutely innocent and has been falsely implicated in the present case. The
medical report proves the case to be otherwise. There is no medical
corroboration of the offence of rape, as such, the applicant is entitled for
bail.
6. Learned counsel for the applicant has further stated that there is no
criminal history of the applicant. The applicant is languishing in jail since
BAIL No. 17074 of 2025
2
18.3.2020, as such, more than six years have passed since his incarceration.
His fundamental rights enshrined under Article 21 of the Constitution of
India stand violated as there is no likelihood of early conclusion of trial in
near future. In case, the applicant is released on bail, he will not misuse the
liberty of bail.
7. Learned A.G.A. has learned counsel for the opposite party no3 have
vehemently opposed the bail application but could not dispute the
submissions made by the counsel for the applicant.
8. This Court had called for the status of trial. As per the status report
dated 18.4.2026, five witnesses have been examined.
9. Granting the bail to the accused in Javed Gulam Nabi Shaikh Vs. State of
Maharashtra and Another 2024 INSC 645, the Supreme Court has
observed:
7. Having heard the learned counsel appearing for the parties and having
gone through the materials on record, we are inclined to exercise our
discretion in favour of the appellant herein keeping in mind the following
aspects:
(i) The appellant is in jail as an under-trial prisoner past four years;
(ii) Till this date, the trial court has not been able to even proceed to frame
charge; and
(iii) As pointed out by the counsel appearing for the State as well as NIA,
the prosecution intends to examine not less than eighty witnesses.
8. Having regard to the aforesaid, we wonder by what period of time, the
trial will ultimately conclude. Howsoever serious a crime may be, an
accused has a right to speedy trial as enshrined under the Constitution of
India.
9. Over a period of time, the trial courts and the High Courts have
forgotten a very well settled principle of law that bail is not to be withheld
as a punishment.
10. In the aforesaid context, we may remind the trial courts and the High
BAIL No. 17074 of 2025
3
Courts of what came to be observed by this Court in Gudikanti
Narasimhulu & Ors. v. Public Prosecutor, High Court reported in
(1978) 1 SCC 240. We quote:
"What is often forgotten, and therefore warrants reminder, is the object to
keep a person in judicial custody pending trial or disposal of an appeal.
Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]:
"I observe that in this case bail was refused for the prisoner. It cannot be
too strongly impressed on the, magistracy of the country that bail is not to
be withheld as a punishment, but that the requirements as to bail are
merely to secure the attendance of the prisoner at trial."
10. The same principle was reiterated by the Supreme Court in Gurbaksh
Singh Sibba v. State of Punjab reported in (1980) 2 SCC 565; Hussainara
Khatoon v. Home Secy., State of Bihar (1980) 1 SCC 81; Kadra Pahadiya &
Ors. v. State of Bihar (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S.
Nayak (1992) 1 SCC 225; Mohd Muslim @ Hussain v. State (NCT of Delhi)
2023 INSC 311; A Convict Prisoner v. State 1993 Cri LJ 3242; Union of
India v. K.A. Najeeb (2021) 3 SCC 713; Indrani Pratim Mukerjea v. CBI,
2022 SCC OnLine SC 695.
11. In the money laundering case of V. Senthil Balaji V. The Deputy
Director, Directorate of Enforcement 2024 INSC 739, the accused was
incarcerated for more than 15 months as such the Supreme Court declared
"inordinate delay in the conclusion of the trial and the higher threshold for
the grant of bail cannot go together".
12. In Satender Kumar Antil v. Central Bureau of Investigation reported in
(2022) 10 SCC 51, prolonged incarceration and inordinate delay engaged the
attention of the court, which considered the correct approach towards bail,
with respect to several enactments, including Section 37 NDPS Act.
13. The Supreme Court in its latest judgement passed in SLP (Crl.)
Nos.10455-10456/2025 Ramnath Mishra @ Ramanath Mishra v. Central
Bureau of Investigation reiterated that issues of personal liberty must be
addressed with utmost speed by Courts. The accused had already been
incarcerated for more than three and a half years, in the instant and
BAIL No. 17074 of 2025
4
connected matters. Releasing accused on bail due to excessive delays by
the High Court in deciding his application also took into account lengthy
pre-trial confinement, emphasizing speedy decision-making for matters of
personal liberty.
14. Considering the facts and circumstances of the case, submissions made
by learned counsel for the parties, the evidence on record, taking into
consideration the medical report of the victim and the long period of
incarceration and without expressing any opinion on the merits of the case,
the Court is of the view that the applicant has made out a case for bail. The
bail application is allowed.
15. Let the applicant- Mukesh Alias Bauwa, who is involved in
aforementioned case crime be released on bail on his furnishing a personal
bond and two sureties each in the like amount to the satisfaction of the court
concerned subject to verification of sureties, with the condition that he shall
not tamper with evidence or intimidate witnesses and shall appear before the
trial court as required.
16. In case of breach of any of the above conditions, it shall be a ground for
cancellation of bail.
17. It is made clear that observations made in granting bail to the applicant
shall not in any way affect the learned trial Judge in forming his independent
opinion based on the testimony of the witnesses.
(Krishan Pahal,J.)
April 23, 2026
Shalini
Digitally signed by :-
SHALINI JAISWAL
High Court of Judicature at Allahabad
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