Allahabad High Court
SURENDRAversusSTATE OF U.P.
- Decided
- Bench
- AVNISH SAXENA
Holding
The Court held that bail must be granted as the offence under Section 238 BNS is a bailable offence.
Summary
Surendra, the accused, was charged under Section 238 of the BNS Act, a bailable offence according to the First Schedule of BNSS, 2023. He applied for bail while in custody since 04‑06‑2026, claiming no prior criminal history, despite the trial court rejecting his earlier bail plea. The State opposed the bail but did not dispute the facts, including the alleged murder of the accused's granddaughter and alleged evidence tampering. The High Court examined the statutory bailability of the offence and relied on Supreme Court dicta in Girish Gandhi v. State of Uttar Pradesh (2024) and Policy Strategy for Grant of Bail in Re (2024). Finding no merit issue to be decided, the Court allowed the bail application, directing the accused to furnish a personal bond and two sureties, and to cooperate with the judicial process.
Issues considered
- Whether bail can be granted for an offence that is bailable under Section 238 of the BNS Act despite the trial court's rejection.
- Whether the statutory provision in the First Schedule of BNSS, 2023, overrides the trial court's discretion in this case.
Legislation cited
- BNS Act — s. 238
- BNSS, 2023 — s. First Schedule
Subjects
- bail
- bailable offence
- Section 238
- BNSS 2023
- Supreme Court precedent
- criminal procedure
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 34754 of 2026
Surendra
.....Applicant(s)
Versus
State of U.P.
.....Opposite
Party(s)
Counsel for Applicant(s) : Rama Shanker Mishra
Counsel for Opposite Party(s) : G.A.
Court No. - 69
HON'BLE AVNISH SAXENA, J.
1. Heard Sri Rama Shanker Mishra, learned counsel for the accused-
applicant and learned A.G.A. for the State.
1A. The one case criminal history is not in the knowledge of the accused-
applicant. As such, he has not explained the same.
2. The present bail application has been moved by the accused-applicant
Surendra to enlarge him on bail in Case Crime No. 115 of 2026, under
Sections 238 BNS, P.S.- Ramchandra Mission, District- Shahjahanpur,
during the pendency of trial.
3. It is contended by learned counsel for the accused-applicant that the
accused-applicant has been charge sheeted for offence under Section 238
BNS, which is a bailable offence in view of first Schedule of BNSS,
2023, despite that the trial court has rejected the bail application
considering the complicity of the accused-applicant. Further contended
that the grand daughter of accused-applicant was found murdered and the
role of disappearing the evidence is on the accused. The charge sheet is
submitted against the accused for the aforesaid offence. The applicant has
no criminal history. The applicant is in jail since 04.06.2026 and hence,
the applicant seeks to be released on bail.
4. Learned A.G.A. for State has opposed the prayer for bail of the
applicant, but could not dispute the aforesaid facts.
5. This Court has taken into consideration the rival submissions made by
BAIL No. 34754 of 2026
2
learned counsel for the parties and perused the record.
6. Considered that the offence under Section 238 BNS is bailable offence
in the category of offence.
7. Hence, without touching merit of the case, the bail application is
allowed.
8. The accused/applicant 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 court concerned in view of observation made by the
Supreme Court in its dictums of Girish Gandhi Vs. State of Uttar
Pradesh [(2024) 10 SCC 674] and Policy Strategy for grant of bail in
re [(2024)10SCC 685].
9. The accused-applicant shall cooperate in judicial process for fair and
speedy disposal.
10. Registrar (Compliance) may send this order to the learned District
Judge, Shahjahanpur, to place this order before the court concerned for
his reply, as under which provision he has rejected the bail application in
bailable offence. The reply be placed before me in close envelope in my
chamber.
(Avnish Saxena,J.)
September 30, 2026
Shivangi
Digitally signed by :-
SHIVANGI YADAV
High Court of Judicature at Allahabad
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