Allahabad High Court
NITESH KUMARversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- SAMEER JAIN
Holding
The court held that the applicant is entitled to bail as there is no risk of evidence tampering and the prolonged pre‑trial detention warrants release on bail.
Summary
The High Court considered a second bail application filed by Nitesh Kumar, who is charged under IPC sections 376AB and 506 and Sections 5m/6 of the POCSO Act for alleged sexual assault of a two‑year‑old girl. The applicant had been in custody since 30 June 2023, over two and a half years, and the victim’s statement had already been recorded by the trial court. The applicant argued that there is no risk of tampering with evidence, that the allegations do not involve penetrative assault, and that he has no prior criminal record. The State opposed bail, noting the seriousness of the child‑sex‑offence charge but could not show any reason to deny bail beyond the earlier refusal. The court, noting the prolonged pre‑trial detention, the lack of evidence of evidence‑tampering risk, and the applicant’s clean record, allowed the bail application with standard conditions.
Issues considered
- Whether bail can be granted in a case of alleged sexual assault of a child under IPC 376AB and the POCSO Act despite the seriousness of the offence.
- Whether the applicant’s prolonged pre‑trial detention and the fact that the victim’s statement is already recorded justify granting bail.
- Whether the absence of a penetrative assault allegation and lack of prior criminal history affect the bail decision.
Legislation cited
- Indian Penal Code — s. 376AB, 506
- Protection of Children from Sexual Offences Act — s. 5m, 6
Subjects
- bail
- sexual assault
- child protection
- PCSO Act
- IPC 376AB
- criminal intimidation
- pre‑trial detention
- second bail application
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 27898 of 2025
Nitesh Kumar
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Shreesh Bahadur Tripathi
Counsel for Opposite Party(s) : G.A.
Court No. - 66
HON'BLE SAMEER JAIN, J.
1. Sri Imran Khan, learned AGA apprised the Court that notice has been
served upon informant on 18.08.2025. Despite service of notice, none
present on behalf of informant.
2. Heard Sri Shreesh Bahadur Tripathi, learned counsel for the applicant and
Sri Imran Khan, learned AGA for the State.
3. The instant bail application has been filed seeking release of the applicant
on bail in Case Crime No. 407 of 2023, under Sections 376AB, 506 IPC and
Section 5m/6 POCSO Act, Police Station Teelamodh, District Ghaziabad
during pendency of the trial.
4. Learned counsel for the applicant submits, however, this is second bail
application filed on behalf of applicant and first bail application of the
applicant was dismissed by this Court vide order dated 20.11.2023 but he is
pressing the instant second bail application mainly on the ground that
applicant is in jail in the present matter since 30.06.2023 i.e. for last more
than two and half years and statement of victim has already been recorded
by the trial court, therefore, even there is no chance of tampering with the
prosecution evidence if applicant is enlarged on bail.
5. He further submits, even allegation against applicant is of sexual assault
and there is no allegation of penetrative sexual assault and on the basis of
such allegation it is easy to implicate anyone. He further submits, on the date
of incident victim was aged about two years, therefore, it appears, on the
instigation of her parents she started making allegation against applicant.
BAIL No. 27898 of 2025
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6. He further submits, applicant is not having any criminal history.
7. Per contra, learned AGA opposed the prayer for bail and submits, this is
second bail application filed on behalf of applicant and as per allegation
applicant made sexual assault upon two years old girl and she also stated
against applicant but could not dispute the fact that applicant is in jail in the
present matter since 30.06.2023 i.e. for last more than two and half years and
victim has already been examined by the trial court. Learned AGA further
could not dispute the fact that applicant is not having any criminal history.
8. I have heard learned counsel for the parties and perused the record of the
case.
9. However, this is second bail application filed on behalf of applicant and
first bail application of the applicant has been dismissed by this Court vide
order dated 20.11.2023 after considering the fact that as per allegation he
made sexual assault upon two years female child but it reflects, he is in jail
since 30.06.2023 i.e. for last more than two and half years and till date trial
of the case could not be concluded. Considering the pace of the trial there is
no hope of early disposal of trial and there is no evidence that applicant is
responsible for delay in trial.
10. Further, victim of the case has already been examined by the trial court,
therefore, this Court finds merit in the argument advanced by learned
counsel for applicant that if applicant is enlarged on bail then also there is no
chance of tampering with the prosecution evidence.
11. Further, even there is allegation of sexual assault against the applicant
and there is no allegation of penetrative sexual assault.
12. Further, applicant is not having any criminal history.
13. Further, law is settled that unless proven guilty an accused is deemed to
be innocent and bail application should not be dismissed either for punitive
or preventive purpose.
14. Therefore, considering the facts and circumstances of the case discussed
above, in my view, applicant is entitled to be released on bail.
15. Accordingly, without expressing any opinion on the merits of the case,
the instant bail application is allowed.
BAIL No. 27898 of 2025
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16. Let the applicant - Nitesh Kumar be released on bail in the aforesaid case
on 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 appear before the trial court on the dates fixed, unless
his personal presence is exempted.
(ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper
with the evidence.
(iii) The applicant shall not indulge in any criminal and anti-social activity.
17. In case of breach of any of the above condition, the prosecution will be
at liberty to move an application before this Court for cancellation of the
bail of the applicant.
18. It is clarified that the observations made herein are limited to the facts
brought in by the parties pertaining to the disposal of bail application and the
said observations shall have no bearing on the merits of the case during trial.
April 2, 2026
AK Pandey
(Sameer Jain,J.)
Digitally signed by :-
ANUPAM KUMAR PANDEY
High Court of Judicature at Allahabad
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