Allahabad High Court
NABI HUSAINversusSTATE OF UP AND 3 OTHERS
- Decided
Holding
The Court held that the applicant is entitled to bail and allowed the bail application.
Summary
The High Court considered a bail application filed by Nabi Husain, who was arrested in Crime No. 161 of 2026 under Sections 137(2), 87, 64(2)m of the BNS Act and Sections 51/6 of the POCSO Act for allegedly enticing and having sexual relations with a minor. The applicant claimed he was falsely implicated, asserting that the victim’s statements under Sections 180 and 183 of the BNS indicated she left home voluntarily and consented to the relationship, and that medical reports did not support a rape allegation. The victim’s age was contested, being reported as 17 years 5 months in school records but 18‑19 years by radiological examination. The State opposed bail but did not dispute the factual contentions. Relying on the Supreme Court’s guidelines in Kapil Wadhawan and Maya Tiwari, as well as considerations of jail overcrowding and the applicant’s clean record, the Court granted bail with standard conditions.
Issues considered
- What is the appropriate bail disposition for an accused charged under the POCSO Act when the victim's consent and age are disputed?
- Does the applicant’s lack of criminal history and the principle of jail decongestion justify granting bail despite the seriousness of the alleged offence?
Legislation cited
Subjects
- bail
- POCSO
- sexual offences
- consent
- age of victim
- jail overcrowding
- criminal procedure
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 29934 of 2026
Nabi Husain
.....Applicant(s)
Versus
State Of Up And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Ashok Kumar Dwivedi
Counsel for Opposite Party(s) : G.A., Gaurav Kumar Shukla
Court No. - 67
HON'BLE JITENDRA KUMAR SINHA, J.
1. List revised. Heard Sri Ashok Kumar Dwivedi, learned counsel for the
applicant and Sri B.P. Singh, learned A.G.A. for the State and Sri Gaurav
Kumar Shukla, learned counsel for the first informant.
2. The instant bail application has been filed with a prayer to release the
applicant on bail in Case Crime No. 161 of 2026, under Sections 137(2),
87, 64(2)m BNS and Sections 51/6 of POCSO Act, Police Station
Kaptanganj, District Basti, 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 the victim in
her statement recorded under Sections 180 and 183 BNSS has stated that
she had left her home on her free will and the applicant established
physical relationship with her on her consent. It is further submitted that
the age of the victim has been found to be 18 to 19 years as per her radio-
logical examination and 17 years and 05 months as per her certificate of
Class 8th, however, there is no High School certificate or the certificate of
school first attended. It is further submitted that the 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 17.6.2026
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 counsel for the first informant and learned A.G.A.
BAIL No. 29934 of 2026
2
have vehemently opposed the prayer for bail but could not dispute the
aforesaid facts, however, it is submitted that the victim is aged about 18 to
19 years as per her radio-logical examination and 17 years and 05 months
as per her certificate of Class 8th.
5. As per the allegation in the FIR, the applicant is said to have enticed
away the daughter of the first informant, however, the victim has been
recovered and the victim in her statement recorded under Sections 180
and 183 BNSS has stated that she had left her home on her free will and
the applicant established physical relationship with her on her consent. T
he age of the victim has been found to be 18 to 19 years as per her radio-
logical examination and 17 years and 05 months as per her certificate of
Class 8th, however, there is no High School certificate or the certificate of
school first attended. The medico-legal report of the victim does not
support the commission of rape on her. The applicant has been
languishing in jail since 17.6.2026 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- Nabi Husain 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
BAIL No. 29934 of 2026
3
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
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 18, 2026
Abhishek
Digitally signed by :-
ABHISHEK AGRAHARI
High Court of Judicature at Allahabad
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