Allahabad High Court
AJAY TIWARI ALIAS AJAY KUMARversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- KRISHAN PAHAL
Holding
The court held that, on a prima facie basis, the applicant is entitled to bail because the victim’s statement indicates consent and the age determination is not conclusive.
Summary
The applicant, Ajay Tiwari, was charged in Sessions Trial No.358 of 2025 for offences under IPC sections 137(2), 87, 65(1) BNS and sections 3 and 4(2) of the POCSO Act, arising from an alleged sexual act with a 16‑year‑old girl. The victim’s statement recorded under section 183 BNSS indicated that she had consented to the relationship, having married the accused in a temple and lived with him. An ossification test report placed the victim’s age at 16, but the court noted that radiological age determination carries a margin of error of one to two years, as held by the Supreme Court in Jaya Mala and Mohd. Imran Khan. The primary issue was whether bail could be granted despite the serious nature of the charges, given the alleged consent and uncertainty about the victim’s exact age. After hearing counsel, the court found a prima facie case for bail and, without deciding the merits, allowed the application subject to standard conditions. The bail was ordered on personal bond and two sureties, with directions to appear before the trial court and not tamper with evidence.
Issues considered
- Whether the victim’s consent negates the offence under the POCSO Act
- Whether the age of the victim can be conclusively established for the purpose of bail
- Whether bail should be granted in a case involving alleged sexual offences against a minor
Legislation cited
- Indian Penal Code — s. 137(2), 65(1), 87
- Protection of Children from Sexual Offences Act — s. 3, 4(2)
Subjects
- bail
- consent
- age of victim
- POCSO Act
- sexual offences
- radiological age determination
- sureties
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 30246 of 2025
Ajay Tiwari Alias Ajay Kumar
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Virendra Kumar Tiwari
Counsel for Opposite Party(s) : G.A.
Court No. - 65
(Sr. No.146 out of 259)
HON'BLE KRISHAN PAHAL, J.
1. List has been revised. As informed by learned A.G.A., notice to the
informant has been served on 04.04.2026, but none is present on behalf of
the informant.
2. Heard Sri Brahma Kumar Tiwari, Advocate holding brief of Sri Virendra
Kumar Tiwari, learned counsel for the applicant, Sri Ram Mohit Yadav,
learned A.G.A. for the State and perused the material placed on record.
3. Applicant seeks bail in Sessions Trial No.358 of 2025 arising out of Case
Crime No.23 of 2025, under Sections 137(2), 87, 65(1) BNS and Sections
3/4(2) of POCSO Act, Police Station- Naubasta, District- Kanpur Nagar,
during the pendency of trial.
4. Having heard the learned counsel for the parties, this Court finds that the
statement of the victim recorded u/s 183 BNSS prima facie indicates her
consent, as she had married the applicant in a temple and stayed with him.
As per ossification test report, the victim is 16 years old. In view of the
judgments of the Supreme Court in Jaya Mala Vs. State of J & K, (1982) 2
SCC 538 and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), (2011)
10 SCC 192,, it has been held that the opinion of a radiologist regarding age
is not exact and carries a margin of error of 1–2 years on either side.
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.
BAIL No. 30246 of 2025
2
Accordingly, the bail application is allowed.
6. Let the applicant- Ajay Tiwari Alias Ajay Kumar, 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
(Ravi Kant)
Digitally signed by :-
RAVI KANT
High Court of Judicature at Allahabad
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