Allahabad High Court

BHEEMversusSTATE OF U.P. AND 3 OTHERS

Decided: 22 April 2026
Bench: KRISHAN PAHAL

Holding

The Court held that the applicant had made out a case for bail and granted it.

Summary

The Allahabad High Court considered the bail application of Bheem, who is charged under Sections 137(2), 87, 65(1) of the B.N.S.S. and Sections 5 and 6 of the POCSO Act for alleged sexual offences against a girl whose age was determined to be 17 years by an ossification test. The victim’s statement recorded under Section 183 B.N.S.S. suggested consent, and the applicant contended that he was falsely implicated and that the victim appeared to be a major. The applicant also highlighted that his three prior criminal cases were explained and that he was willing to cooperate with the trial. The State opposed bail but could not effectively counter the applicant’s arguments. Citing Supreme Court decisions on the margin of error in radiological age estimation and the principle that pending cases do not automatically preclude bail, the Court held that the applicant had made out a case for bail and ordered his release on personal bond with conditions.

Issues considered

Whether bail should be granted to the accused under Sections 137(2), 87, 65(1) of the B.N.S.S. and Sections 5/6 of the POCSO Act considering the victim’s age and alleged consent.
Whether the existence of pending criminal cases against the accused bars the grant of bail.
Whether the ossification test report and the victim’s statement under Section 183 B.N.S.S. are sufficient to establish consent and age for bail considerations.

Legislation cited

B.N.S.S. — s. 137(2), 183, 65(1), 87
Protection of Children from Sexual Offences Act, 2012 — s. 5, 6

Subjects

bail
consent
POCSO
age of victim
ossification test
criminal history
Supreme Court precedent

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL MISC. BAIL APPLICATION No. - 18795 of 2025

Bheem
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite Party(s)

Counsel for Applicant(s) : Abhishek Tiwari, Balram Jee Verma, Mamta
Singh
Counsel for Opposite Party(s) : G.A.

Court No. - 65
(Sl. No.84 out of 259)

HON'BLE KRISHAN PAHAL, J.

1. List has been revised. As informed by learned State Law Officer, notice to the
informant has been served on 26.5.2025.

2. Supplementary affidavit filed by learned counsel for the applicant is taken on
record.

3. The ossification test report of the victim has been received in compliance of order
dated 16.3.2026. As per the report, she is 17 years old. The report be returned to the
office of the concerned C.M.O. after retaining the photocopy thereof.

4. Heard Sri Balram Jee Verma, learned counsel for the applicant as well as Sri R.P.
Patel, learned State Law Officer, and perused the material placed on record.

5. Applicant seeks bail in Case Crime No. 509 of 2024, under Sections 137(2), 87,
65(1) BNS and 5/6 POCSO Act, Police Station Gagaha, District Gorakhpur, during
the pendency of trial.

6. Learned counsel for the applicant has argued that the applicant is absolutely
innocent and has been falsely implicated in the present case. The victim is a
consenting party as is but evident from her statement recorded under Section 183
B.N.S.S. The victim, by her physical appearance, seems to be major although her age
is 17 years as per ossification test report and a leverage of two years may be granted to
the applicant on the upper side.

7. Learned counsel for the applicant has further stated that there is a criminal history
of three cases assigned to the applicant which stands explained. The applicant is
BAIL No. 18795 of 2025
2

languishing in jail since 16.4.2025 and he is ready to cooperate with trial. In case, the
applicant is released on bail, he will not misuse the liberty of bail.

8. Learned State Law Officer has vehemently opposed the bail application but could
not dispute the submissions made by the counsel for the applicant.

9. In the judgement of Supreme Court passed in Jaya Mala Vs. State of J & K, (1982)
2 SCC 538 and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), (2011) 10 SCC
192, it has been opined that the radiologist cannot predict the correct date of birth
rather there is a long margin of 1 to 2 years on either side.

10. The Supreme Court in Prabhakar Tewari vs. State of U.P. And Another, (2020)
11 SCC 648 has observed that pendency of several criminal cases against an accused
itself cannot be a basis for refusal of bail, if otherwise his case for bail is made out.

11. Considering the facts and circumstances of the case, submissions made by learned
counsel for the parties, the evidence on record, taking into consideration the statement
of the victim recorded u/s 183 BNSS, whereby she seems to be consenting party 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.

12. Let the applicant- Bheem 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.

13. In case of breach of any of the above conditions, it shall be a ground for
cancellation of bail.

14. 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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