Allahabad High Court
AZADversusSTATE OF U.P. AND 3 OTHERS
- Decided
Holding
The applicant is entitled to be released on bail.
Summary
The High Court considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for the accused Azad, who was charged with offences under Sections 64(1), 352, 351(3) of the same Act and Sections 3 and 4 of the POCSO Act for alleged rape of a minor aged about 17 years 8 months. The FIR was lodged eleven days after the alleged incident, and the victim’s statement indicated a prior consensual relationship that later turned hostile, while the medico‑legal report was inconclusive despite noting bleeding. The court noted the applicant’s clean criminal record, the prolonged pre‑trial detention, and the problem of jail overcrowding, and it relied on recent Supreme Court precedents (Kapil Wadhawan vs CBI, Maya Tiwari vs State of U.P.) and a policy directive on bail. Without expressing an opinion on the merits, the court held that the applicant was entitled to bail, subject to a personal bond, sureties, and strict conditions to prevent tampering with evidence or further offences. The order also directed verification of identities and prompt communication of the release order to the jail.
Issues considered
- Whether bail should be granted to an accused charged with rape of a minor under the Bharatiya Nagarik Suraksha Sanhita and the POCSO Act despite a delayed FIR and conflicting medical evidence.
- Whether the applicant’s lack of prior criminal record and the circumstances of jail overcrowding justify bail.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 170, 180, 183, 351(3), 352, 483, 64(1)
- Protection of Children from Sexual Offences (POCSO) Act, 2012 — s. 3, 4
Subjects
- bail
- rape
- minor
- Bharatiya Nagarik Suraksha Sanhita
- POCSO Act
- FIR delay
- jail overcrowding
- Supreme Court precedent
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 30749 of 2026
Azad
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite Party(s)
Counsel for Applicant(s) : Akhilesh Kumar Mishra
Counsel for Opposite Party(s) : Akash Kumar Nishad, G.A.
Court No. - 67
HON'BLE JITENDRA KUMAR SINHA, J.
1. List revised.
2. Heard Sri Ajay Kumar Singh, Advocate, holding brief of Sri Akhilesh Kumar
Mishra, learned counsel for the applicant, Sri Ankit Kumar Dubey, Advocate, holding
brief of Sri Akash Kumar Nishad, learned counsel for the first informant, Sri BP
Maurya, learned AGA for the State-respondents and perused the record.
3. The present bail application under Section 483 of Bharatiya Nagarik Suraksha
Sanhita, 2023, has been filed on behalf of applicant with a prayer to release him on
bail in Case Crime No. 180 of 2026 under Sections 64(1), 352, 351(3) BNS and 3/4
POCSO Act registered at Police Station Bakhira, District Sant Kabir Nagar during
pendency of the trial.
4. It is contended by learned counsel for the applicant that FIR has been lodged after
delay of eleven days and on perusal of the statement of the victim recorded under
Sections 180 and 183 BNSS, it appears that she was in consensual relationship with
the applicant, however, it has been stated by her that after some time, their relationship
was broken and on the alleged date of occurrence, applicant is said to have entered
into her house and committed rape on her. It is further submitted that prior to date of
the alleged occurrence, some dispute arose between the applicant and family
members of the victim and the applicant was challaned under section 170 BNSS. It is
further submitted that the victim is aged about 17 years 8 months as per certificate of
High School and 18 years as per ossification test and her medico-legal report does not
support commission of rape on her. It is also submitted that applicant, who has no
criminal history, has been languishing in jail since 25.5.2056. It is lastly submitted that
in case applicant is granted bail, he will not misuse the liberty of bail and would
cooperate in the trial proceedings.
5. On the other hand, learned A.G.A. as well as learned counsel for the first informant
opposed the prayer for grant of bail to the applicant and submit that the victim is a
BAIL No. 30749 of 2026
2
minor girl aged about 17 years 8 months as per certificate of High School and in her
statement recorded under sections 180 and 183 BNSS has stated that applicant
committed rape on her. It is further submitted that medico-legal report of the victim
supports commission of rape on her as bleeding has been found on her private part.
6. FIR has been lodged after delay of eleven days as per which, applicant is said to
have committed rape on the victim aged about 17 years. On perusal of the statement of
the victim recorded under Sections 180 and 183 BNSS, it appears that she was in
consensual relationship with the applicant, however, it has been stated by her that after
some time, their relationship was broken and on the alleged date of occurrence,
applicant is said to have entered into her house and committed rape on her. It is also
submitted that prior to date of the alleged occurrence, some dispute arose between the
applicant and family members of the victim and the applicant was challaned under
section 170 BNSS on 15.5.2026 i.e. four days after the alleged incident. The victim is
aged about 17 years 8 months as per certificate of High School and 18 years as per
ossification test. Medico-legal examination which has been conducted after eleven
days of the incident does not support commission of rape on the victim though
bleeding has been found on her private part. Applicant, who has no criminal history,
has been languishing in jail since 25.5.2056.
7. 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.
8. Let the applicant Azad 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.
(iv) The applicant shall attend in accordance with the conditions of the bond executed
BAIL No. 30749 of 2026
3
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.
October 1, 2026
Madhurima
(Jitendra Kumar Sinha,J.)
Digitally signed by :-
MADHURIMA GARG
High Court of Judicature at Allahabad
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