Allahabad High Court
MALKHANversusSTATE OF U.P. AND ANOTHER
- Decided
Holding
The applicant is entitled to be released on bail.
Summary
Malkhan was arrested in connection with a case (Crime No. 0064 of 2026) alleging offences under IPC sections 87, 64(2)(M), 351(3) and 115(2), purportedly involving the rape of a 23‑year‑old woman. The applicant contended that the victim’s statements under CrPC sections 180 and 183 indicated consent and that the medico‑legal report did not support a rape allegation, and he also highlighted his lack of prior criminal record and prolonged pre‑trial detention since 19‑03‑2026. The State opposed bail, maintaining that the victim’s statements supported the rape charge. The Court, referring to Supreme Court precedents in Kapil Wadhawan v CBI (2025) and Maya Tiwari v State of U.P. (2024) as well as the policy directive on bail (2023), considered the nature of the offence, evidentiary material, jail overcrowding and the applicant’s personal circumstances. Without expressing a view on the merits, the Court held that the applicant was entitled to bail and ordered his release on personal bond with conditions. The bail order also directed verification of identities and electronic transmission of the release order to the jail.
Issues considered
- Whether bail should be granted to the accused in a case involving alleged rape where the victim’s statement suggests consent and there is no medical evidence of rape
- Whether the principles laid down in recent Supreme Court judgments and the policy on bail mandate the grant of bail despite the seriousness of the alleged offences
Legislation cited
- Code of Criminal Procedure, 1973 — s. 180, 183
- Indian Penal Code — s. 115(2), 351(3), 64(2)(M), 87
Subjects
- bail
- rape
- consent
- medico‑legal report
- jail overcrowding
- Supreme Court guidelines
- Criminal Procedure Code
- Indian Penal Code
- pre‑trial detention
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 27062 of 2026
Malkhan
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Ashish Kumar Srivastava, Virendra
Kumar Srivastava
Counsel for Opposite Party(s) : G.A.
Court No. - 67
HON'BLE JITENDRA KUMAR SINHA, J.
1. Heard Sri Virendra Kumar Srivastava, learned counsel for the applicant
and Sri B.P. Maurya, learned A.G.A. for the State.
2. The instant bail application has been filed with a prayer to release the
applicant on bail in Case Crime No. 0064 of 2026, under Sections 87,
64(2)(M), 351(3), 115(2) BNS, Police Station Shahganj, District Agra,
during the pendency of the trial.
3. It is contended by the learned counsel for the applicant that the
applicant has been falsely implicated in the present case and on perusal of
the statement of the victim recorded under Sections 180 and 183 BNSS, it
appears that she is a consenting party. It is further submitted that the
victim is a major lady aged about 23 years and medico-legal report of the
victim does not support the commission of rape on her. It is also
submitted that the applicant has been languishing in jail since 19.3.2026
and he is having no criminal history. It is lastly submitted that in case the
applicant is granted bail, he will not misuse the liberty of bail and would
cooperate in the trial proceedings.
4. Per contra, learned A.G.A. has vehemently opposed the prayer for bail
but could not dispute the aforesaid facts, however, it is submitted that the
victim in her statement recorded under Sections 180 and 183 BNSS has
supported the allegations of commission of rape on her.
BAIL No. 27062 of 2026
2
5. As per the allegation in the FIR, the applicant is said to have enticed
away the daughter of the first informant aged about 23 years, however,
the victim has been recovered and it is submitted that on perusal of the
statement of the victim recorded under Sections 180 and 183 BNSS, it
appears that she is a consenting party. The victim is a major lady aged
about 23 years and medico-legal report of the victim does not support the
commission of rape on her. The applicant has been languishing in jail
since 19.3.2026 and he is having no criminal history.
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- Malkhan 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,
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.
BAIL No. 27062 of 2026
3
(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
concerned Jail Superintendent 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 14, 2026
Abhishek
Digitally signed by :-
ABHISHEK AGRAHARI
High Court of Judicature at Allahabad
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