Allahabad High Court
SHIVA SAHARIYAversusSTATE OF U.P. AND 3 OTHERS
- Decided
Holding
The court held that the applicant is entitled to bail, as the case does not warrant pre‑trial detention in view of the lack of incriminating evidence, the applicant’s clean record, and applicable Supreme Court guidelines.
Summary
The Allahabad High Court considered a bail application filed by Shiva Sahariya, accused under Sections 64(1) and 351(3) of the B.N.S. and Sections 3 and 4(2) of the POCSO Act for an alleged rape of a minor. The applicant argued that he was falsely implicated, that the medico‑legal report did not support the rape allegation, and that he had no prior criminal record. The prosecution highlighted the victim’s statement under Sections 180 and 183 of the B.N.S. and the minor’s age as evidence of the offence. Relying on Supreme Court precedents (Kapil Wadhawan v CBI, Maya Tiwari v U.P., and the Policy Strategy for Grant of Bail) and the lack of incriminating material, the court granted bail without commenting on the merits. The order released the applicant on personal bond with conditions and directed verification of identities and prompt release through the Bail Order Management System.
Issues considered
- Whether bail should be granted to an accused charged under Sections 64(1), 351(3) of the B.N.S. and Sections 3, 4(2) of the POCSO Act pending trial.
- Whether the absence of incriminating material and the contested medico‑legal report justify bail.
- How the Supreme Court’s guidelines in Kapil Wadhawan v CBI, Maya Tiwari v U.P., and the Policy Strategy for Grant of Bail influence the bail decision.
Legislation cited
Subjects
- bail
- POCSO
- pre‑trial detention
- Supreme Court precedent
- medico‑legal evidence
- minor victim
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 26230 of 2026
Shiva Sahariya
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Girijesh Kumar Gupta, Shiv Shankar
Pd Gupta
Counsel for Opposite Party(s) : G.A.
Court No. - 67
HON'BLE JITENDRA KUMAR SINHA, J.
1. Heard Shri Girijesh Kumar Gupta, learned counsel for the applicant
and Shri Radhey Shyam, learned A.G.A. for the State and perused the
record. At the very outset, learned AGA submits that the notice has been
served on the first informant.
2. The instant bail application has been filed with a prayer to release the
applicant on bail in Case Crime No. 101 of 2026, under Sections 64(1),
351(3) of B.N.S. and Section 3/4(2) of POCSO Act, Police Station
Talbehat, District Lalitpur during the pendency of the trial.
3. Learned counsel for the applicant has submitted that the applicant has
been falsely implicated in the present case though there is no
incriminating material against him. It is further submitted that the medico
legal report does not support the allegation of commission of rape on her
as the same has been conducted on the next day of the incident. It is
further submitted that the age of the victim has been found to be 16 years
as per ossification test and the age of the victim has been found to be 15
years and 3 months as per certificate of Class VIII, however, there is no
certificate of high school or certificate of school first attended. It is further
submitted that the applicant is having no criminal history and the
applicant has been languishing in jail since 06.04.2026, in case, he is
granted bail, he will not misuse the liberty of bail and would cooperate in
the trial proceedings.
BAIL No. 26230 of 2026
2
4. Per contra, learned counsel for the first informant and learned A.G.A.
have vehemently opposed the prayer for bail and it has been submitted by
them that the victim is a minor girl aged about 15 years and 3 months as
per certificate of Class VIII and the victim in her statement recorded
under Section 180 and 183 BNSS has stated that the applicant committed
rape on her.
5. As per first information report, the applicant is said to have committed
rape on her and the medico legal report does not support the allegation of
commission of rape on her as the same has been conducted on the next
day of the incident. It is further submitted that the age of the victim has
been found to be 16 years as per ossification test and the age of the victim
has been found to be 15 years and 3 months as per certificate of Class
VIII, however, there is no certificate of high school or certificate of
school first attended. It is further submitted that the applicant is having no
criminal history and the applicant has been languishing in jail since
06.04.2026.
6. Considering the entire facts and circumstances of the case, submissions
of learned counsel for the parties and keeping in view the nature of
offence, evidence, complicity of the accused and taking into account
overcrowded jails and heavy pendency of criminal cases before the trial
courts as well as considering the mandate of the judgement of the Apex
Court in the case of Kapil Wadhawan vs Central Bureau of Investigation
reported in 2025 SCC OnLine SC 3038 as well as guideline of this Court
in the case of Maya Tiwari Vs. State of U.P. reported in 2024 SCC
Online All 6765 regarding grant of bail and without expressing any
opinion on the merits of the case, I am of the opinion that the applicant is
entitled to be enlarged on bail.
7. Accordingly, the present application is ALLOWED.
8. Let the applicant- Shiva Sahariya involved in the aforementioned
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,
with the following conditions:-
(i) The applicant shall not directly or indirectly make any inducement,
BAIL No. 26230 of 2026
3
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 cooperate in the trial/investigation sincerely
without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or
commission of any crime after being released on bail.
(iv) The applicant shall attend in accordance with the conditions of the
bond executed by him.
9. In case of breach of any of the above conditions, it shall be a ground for
cancellation of bail.
10. Identity, status and residence proof of the applicant and sureties be
verified by the court concerned before the bonds are accepted.
Verification of mobile number and Aadhaar card of the applicant as well
as sureties should be verified by the court concerned.
11. It is further directed that the trial court shall send the release order to
the concerned jail through Bail Order Management System (BOMS) to
ensure early release of the applicant.
12. Office is directed to send a copy of this order to the applicant through
Jail Superintendent, Lalitpur via e-mail or e-prison portal within 24
hours in compliance of the order of the Apex Court in the case of Policy
Strategy for Grant of Bail, In Re: Suo Motu Writ Petition (Crl.) No.4
of 2021 decided on 31.01.2023 reported in (2024) 10 SCC 685.
(Jitendra Kumar Sinha,J.)
September 8, 2026
RKM
Digitally signed by :-
RAJESH KUMAR MAURYA
High Court of Judicature at Allahabad
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