Allahabad High Court
VIVEKversusSTATE OF U.P. AND 3 OTHERS
- Decided
Holding
The bail application is allowed; the accused is released on bail subject to conditions.
Summary
The High Court considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, on behalf of Vivek, who is charged with gang rape and related offences under Sections 137(2), 70(2), 351(3), 352, 61(2) of the BNS and Sections 5G/6 of the POCSO Act. The applicant argued that he was falsely implicated, that the victim’s statements indicated consensual relations with other accused, and that the medical report did not support a rape allegation. The prosecution contended that the victim’s statements placed the applicant and another accused as active participants in a gang rape. The Court, noting the lack of conclusive medical evidence, the applicant’s prolonged pre‑trial detention, and the fact that similarly situated co‑accused had been granted bail, held that the case was suitable for bail. Accordingly, the Court ordered the release of Vivek on bail with a personal bond of Rs. 50,000 and several conditions, while expressly stating that the order does not prejudice the trial’s merits.
Issues considered
- Whether bail should be granted to the accused under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 in a case involving alleged gang rape and POCSO offences.
- Whether the victim’s statements and the medico‑legal report create reasonable doubt about the applicant’s participation in the alleged rape.
- Whether the applicant’s prolonged pre‑trial detention and the bail granted to co‑accused warrant the release of the applicant.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 137(2), 351(3), 352, 483, 61(2), 70(2)
- Protection of Children from Sexual Offences Act, 2012 — s. 5G, 6
Subjects
- bail
- gang rape
- POCSO
- false implication
- medico‑legal evidence
- pre‑trial detention
- court conditions
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 17283 of 2026
Vivek
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Mohammad Abid Ali, Mushir Khan,
Santosh Kumar Pandey, Shan Md
Counsel for Opposite Party(s) : Aarushi Khare, Chaman Aara, G.A.,
Ishan Khare
Court No. - 67
HON'BLE JITENDRA KUMAR SINHA, J.
1. Heard Sri Mushir Khan, learned counsel for the applicant, Sri Ishan
Khare, learned counsel for the first informant, Sri BP Singh, learned AGA
for the State-respondents and perused the record.
2. The present bail application under Section 483 of Bharatiya Nagarik
Suraksha Sanhita, 2023, has been filed on behalf of applicant with a prayer
to release him on bail in Case Crime No. 50 of 2026 under Sections 137(2),
70(2), 351(3), 352, 61(2) BNS and 5G/6 POCSO Act registered at Police
Station Baniather, District Sambhal during pendency of the trial.
3. It has been argued by learned counsel for the applicant that applicant has
been falsely implicated in the present case and the applicant and co-accused
Aman have not been assigned the role of commission of rape. It is further
submitted that similarly placed co-accused Aman and Shiva have already
been granted bail by this Court as well as by Co-ordinate Bench of this
Court. It is further submitted that the victim in her statement under
sections 180 and 183 BNSS has stated that co-accused Gaurav committed
rape on her and she was in consensual relationship with co-accused Shiva. It
is further submitted that victim has been found to be aged around 16 years as
per transfer certificate of class IInd, however, there is no certificate of High
School or school first attended and no radiological examination has been
conducted for determination of her age. It is further submitted that medico-
legal report of the victim does not support the allegation of rape on her as no
BAIL No. 17283 of 2026
2
injury has been found on her private parts though some abrasion is found on
her neck. It is further submitted that criminal history of the applicant has
been explained in the memo of application and he has been languishing in
jail since 13.3.2026. It is also submitted that the applicant undertakes that he
will not misuse the liberty, if granted. It has also been pointed out that in the
wake of heavy pendency of cases in the Court, there is no likelihood of any
early conclusion of trial.
4. On the other hand, learned counsel for the first informant opposed the
prayer for grant of bail to the applicant and submits that the victim in her
statement under section 180 and 183 BNSS has stated that applicant and co-
accused Aman stood guard outside the room and they took active part in the
commission of the offence and they come within the purview of gang rape.
5. learned A.G.A. also opposed the prayer for grant of bail to the applicant.
6. As per the FIR, applicant and three other accused persons are said to have
committed gang rape on the victim. However, the victim has stated in her
statements recorded under sections 180 and 183 BNSS that she was in
consensual relationship with co-accused Shiva and another co-accused
Gaurav committed rape on her. The victim has been found to be aged around
16 years as per transfer certificate of class IInd, however, there is no
certificate of High School or school first attended and no radiological
examination has been conducted for determination of her age. Medico-legal
report of the victim does not support the allegation of rape on her as no
injury has been found on her private parts though some abrasion is found on
her neck. Criminal history of the applicant has been explained in the memo
of application and he has been languishing in jail since 13.3.2026. Similarly
placed co-accused Aman and Shiva have already been granted bail by this
Court as well as by Co-ordinate Bench of this Court.
7. Upon considering the totality of facts, nature and the evidence reflected
from record and without expressing any opinion on merits of the case, I find
it to be a fit case for bail. Hence, the present bail application is ALLOWED.
8. Let the applicant Vivek involved in the aforesaid case crime be released
on bail on his furnishing a personal bond of Rs. 50,000/- with two sureties
each in the like amount to the satisfaction of the Court concerned with the
BAIL No. 17283 of 2026
3
following conditions :-
(i) The applicant shall not directly or indirectly make any inducement, threat,
or promise to any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the court or to any police officer
or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) The applicant shall remain present, in person, before the trial court on
the dates fixed for (i) opening of the case, (ii) framing of charge and (iii)
recording of statement under Section 351 of B.N.S.S.
(iv) The applicant shall file an undertaking to the effect that he shall not seek
any adjournment on the dates fixed for evidence when the witnesses are
present in the trial court.
(v) The applicant shall remain present before the trial court on each date
fixed, either personally or through his counsel.
9. In case of breach of any of the above conditions, it shall be a ground for
cancellation of bail.
10. It is clarified that anything said in this order is limited to the purpose of
determination of this bail application and will in no way be construed as an
expression on the merits of the case. The trial court shall be absolutely free
to arrive at its independent conclusions on the basis of evidence led
unaffected by anything said in this order.
(Jitendra Kumar Sinha,J.)
September 9, 2026
Madhurima
Digitally signed by :-
MADHURIMA GARG
High Court of Judicature at Allahabad
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