Allahabad High Court
BRAJESH KUMAR @ SARVESHversusSTATE 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 by Brajesh Kumar @ Sarvesh, who was charged under Sections 87, 137(2), 65(1) of the BNS Act and Sections 3 and 4 of the POCSO Act for allegedly enticing a minor girl. The applicant argued that he was falsely implicated, highlighted inconsistencies in the victim's statements, questioned the victim's age, and noted the absence of a medical‑legal report supporting rape. The State contended that the victim was a minor of about 14 years and opposed bail. Relying on Supreme Court precedents (Kapil Wadhawan v CBI, Maya Tiwari v U.P.) and the policy on bail in cases of overcrowded prisons, the Court held that the applicant was entitled to bail without expressing a view on the merits. Accordingly, bail was granted subject to a personal bond, two sureties and standard conditions to prevent tampering with evidence or further offences.
Issues considered
- Whether bail should be granted to an accused charged under the POCSO Act and other provisions when the victim's age and consent are in dispute.
- Whether the accused poses a risk of tampering with evidence or committing further offences.
- Whether the principles laid down in recent Supreme Court bail jurisprudence apply to this case.
Legislation cited
- BNS — s. 137(2), 65(1), 87
- Protection of Children from Sexual Offences (POCSO) Act — s. 3, 4
Subjects
- bail
- POCSO
- minor
- sexual offence
- age determination
- evidence inconsistency
- overcrowded prisons
- Supreme Court bail jurisprudence
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 31759 of 2026
Brajesh Kumar @ Sarvesh
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Yogesh Mishra
Counsel for Opposite Party(s) : G.A.
Court No. - 67
HON'BLE JITENDRA KUMAR SINHA, J.
1. Heard Sri Yogesh Mishra, learned counsel for the applicant and
Sri B.P. Singh, learned A.G.A. for the State and perused the
record.
2. The instant bail application has been filed with a prayer to
release the applicant on bail in Case Crime No. 120 of 2026, under
Sections 87, 137(2), 65(1) of BNS and Section 3/4 of POCSO Act,
Police Station Amapur, District Kasganj, during the pendency of
the trial.
3. At the very outset, learned AGA submits that notice has been
served on the first informant.
4. 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 had left her home on her free
will and she had entered into matrimonial alliance with the
applicant with her free consent, however, the victim in her
statement under Section 180 BNSS has stated that no physical
relationship was established by the applicant whereas in her
statement under Section 183 BNSS she has stated that physical
relationship was established by the applicant. It is further submitted
that the age of the victim has been found to be 16 years as per
BAIL No. 31759 of 2026
2
FIR and as per her statement and 14 years as per record of
primary school however, there is no High School certificate or the
certificate of school first attended and no radio-logical examination
of the victim has been conducted for her age determination. 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 2.6.2026 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.
5. Per contra, learned A.G.A. has vehemently opposed the prayer
for bail, however, it is submitted that the the victim is a minor girl
aged about 14 years as per record of primary school.
6. As per the allegation in the FIR, the applicant and other co-
accused are said to have enticed away the daughter of the first
informant, however, the victim has been recovered. The victim in
her statement under Sections 180 and 183 BNSS has stated that
she had left her home on her free will and she had entered into
matrimonial alliance with the applicant with her free consent,
however, the victim in her statement under Section 180 BNSS she
has stated that no physical relationship was established by the
applicant whereas in her statement under Section 183 BNSS she
has stated that physical relationship was established by the
applicant. The age of the victim has been found to be 16 years as
per FIR and as per her statement and 14 years as per record of
primary school however, there is no High School certificate or the
certificate of school first attended and no radio-logical examination
of the victim has been conducted for her age determination. The
medico-legal report of the victim does not support the commission
of rape on her. The applicant has been languishing in jail since
2.6.2026 and he is having no criminal history.
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
BAIL No. 31759 of 2026
3
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. Accordingly, the present application is ALLOWED.
9. Let the applicant- Brajesh Kumar @ Sarvesh 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 by him.
10. In case of breach of any of the above conditions, it shall be a
ground for cancellation of bail.
11. 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
BAIL No. 31759 of 2026
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concerned.
12. 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.
13. 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.
September 30, 2026
Abhishek
(Jitendra Kumar Sinha,J.)
Digitally signed by :-
ABHISHEK AGRAHARI
High Court of Judicature at Allahabad
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