Allahabad High Court
EKLAKversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- KRISHAN PAHAL
Holding
The court held that bail should be granted to the accused.
Summary
The High Court considered a bail application filed by Eklak, who is charged under sections 64(2)(m), 308(2), 351(3) of the BNS Act and sections 5 and 6 of the POCSO Act for alleged sexual offences in Gorakhpur. The victim, born on 03‑07‑2007, was found pregnant and had undergone an abortion at the informant’s request; the court noted that she appeared to have consented and that her age was marginally below majority. Relying on the Supreme Court’s decision in Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673, the court held that the recorded age of a minor may be treated as adult for the purpose of bail. After hearing counsel for both sides, the court found a prima facie case for bail and, without deciding the merits, ordered bail with standard conditions. The bail was granted subject to a personal bond, two sureties, and conditions not to tamper with evidence or intimidate witnesses.
Issues considered
- Whether bail can be granted to an accused charged under POCSO and BNS offences when the alleged victim is a minor.
- Whether the victim’s age can be treated as that of an adult based on the Supreme Court precedent in Sushil Kumar v. Rakesh Kumar.
- Whether the alleged consent of the victim influences the bail decision.
Legislation cited
Subjects
- bail
- POCSO
- minor victim
- consent
- age of majority
- criminal procedure
- BNS Act
- Supreme Court precedent
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 23459 of 2025
Eklak
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Sunil Kumar Tiwari, Vikash Kumar
Tiwari
Counsel for Opposite Party(s) : Anup Dhar Dubey, G.A.
Court No. - 65
(Sl. No. 102 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 31.05.2025 but none is present on
behalf of the informant.
2. Heard Sri Sunil Vashisth, Advocate holding brief of Sri Sunil Kumar
Tiwari, learned counsel for the applicant and as well as Sri Jai Kishan
Chaurasia, learned State Law Officer and also perused the material placed
on record.
3. Applicant seeks bail in Case Crime No. 158 of 2025, under Sections
64(2)(m), 308(2), 351(3) of BNS and Sections 5/6 of POCSO Act, Police
Station - Gorakhnath, District - Gorakhpur, during the pendency of trial.
4. Having heard the learned counsel for the parties, this Court finds that it
is true that the victim was found pregnant, but the said foetus has been
aborted at the behest of the informant. The victim appears to have been a
consenting party, as she did not reveal the matter of her relationship with
the applicant until she became pregnant. As per the High School
certificate, the date of birth of the victim is 03.07.2007, and thus, she is
marginally below the age of majority. However, in light of the judgment
of the Supreme Court in Sushil Kumar vs. Rakesh Kumar, (2003) 8 SCC
673, wherein it has been observed that, in Indian society, the age of wards
is often recorded as lower than their actual age, she may be treated as
BAIL No. 23459 of 2025
2
being of majority age for the purposes of the present consideration.
5. Without expressing any opinion on the merits of the case, prima facie
the Court is of the view that the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
6. Let the applicant- Eklak, be released on bail on furnishing a personal
bond and two sureties to the satisfaction of the court concerned, subject to
verification of sureties, with the conditions that he shall not tamper with
evidence or intimidate witnesses and shall appear before the trial court as
required.
7. Breach of any condition shall entail cancellation of bail. The
observations herein shall not affect the trial on merits.
(Krishan Pahal,J.)
April 23, 2026
Siddhant
Digitally signed by :-
SIDDHANT SAHU
High Court of Judicature at Allahabad
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