Allahabad High Court
DURGESH PASWANversusSTATE OF U.P. AND 3 OTHERS
- Decided
Holding
The court held that the applicant is entitled to bail and allowed the bail application.
Summary
Durgesh Paswan was arrested in connection with a case under the BNSS Act, 2023 (sections 87, 64(2)(m), 137(2)) and the POCSO Act (sections 5L/6) alleging that he enticed the daughter of the first informant. The victim, however, gave statements under sections 180 and 183 of the BNSS Act stating that she left her home voluntarily, was in love with the applicant, married him, and refused a medical examination. The applicant has no prior criminal record and a charge sheet has already been filed, eliminating the need for custodial interrogation. The State opposed bail but did not dispute the victim's statements. Relying on the Supreme Court’s guidelines in Kapil Wadhawan and the Allahabad High Court’s own precedents, the court held that the applicant is entitled to bail, especially considering jail overcrowding and case pendency. Accordingly, the bail application was allowed subject to standard conditions and verification procedures.
Issues considered
- What is the appropriate bail disposition for an accused under the BNSS Act and POCSO Act when the alleged victim consents to the relationship and refuses medical examination?
- Does the filing of a charge sheet and the absence of a criminal record justify granting bail despite the seriousness of the alleged offences?
Legislation cited
- BNSS Act, 2023 — s. 137(2), 180, 183, 64(2)(m), 87
- POCSO Act — s. 5L, 6
Subjects
- bail
- BNSS Act
- POCSO Act
- victim consent
- overcrowded prisons
- criminal procedure
- judicial precedent
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 35206 of 2026
Durgesh Paswan
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Kripesh Mishra
Counsel for Opposite Party(s) : G.A.
Court No. - 66
HON'BLE ARUN KUMAR SINGH DESHWAL, J.
1. Heard Sri Kripesh Mishra, learned counsel for the applicant, Sri
Ramkumar Verma, learned A.G.A. for the State and perused the record.
No one appeared on behalf of the first informant despite service of notice
by the police.
2. The instant bail application has been filed with a prayer to release the
applicant on bail in Case Crime No. 664 of 2026, under Sections 87,
64(2)(m), 137(2) of B.N.S. Act, 2023, and Section 5L/6 of P.O.C.S.O.
Act, Police Station Gulariha, District Gorakhpur, during the pendency of
the trial.
3. Contention of learned counsel for the applicant is that though in the
FIR allegation has been made that the daughter of the first informant has
been enticed away by the present applicant, but the victim in her
statements recorded under Sections 180 and 183 BNSS specifically stated
that she left her house on her own free will along with the applicant and
she stated that she was in love and in a relationship with him, married
him, established physical relationships, and is living as husband and wife,
yet the applicant has been falsely implicated in the present case. It is
further submitted that the victim herself refused to undergo medical
examination.
4. It is further submitted that the applicant has no criminal history. It is
further submitted that charge sheet has been filed in the present case,
therefore, there is no requirement of custodial interrogation. The applicant
BAIL No. 35206 of 2026
2
is a law abiding citizen and he is languishing in jail since 29.08.2026. In
case, he 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
but could not dispute the aforesaid facts.
6. Considering the entire facts and circumstances of the case, submissions
of learned counsel for the parties and statements of the victim recorded
under Sections 180 and 183 BNSS, coupled with the refusal of the victim
to undergo medical examination, 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 judgment 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.,
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. Accordingly, the present
application is allowed.
7. Let the applicant-Durgesh Paswan, 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.
BAIL No. 35206 of 2026
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iv. The applicant shall attend in accordance with the conditions of the
bond executed by him.
8. In case of breach of any of the above conditions, it shall be a ground for
cancellation of bail.
9. Identity, status and residence proof of the applicant and sureties be
verified by the court concerned before the bonds are accepted.
10. Verification of mobile number and Aadhaar card of the applicant as
well as sureties should be verified by the court concerned.
11. It is made clear that the applicant shall be released on the basis of
computer generated copy of this order, downloaded from the official
website of High Court Allahabad and verified by the concerned counsel
with the undertaking that the certified copy will be filed within 15 days.
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
Jail Superintendent, Gorakhpur via e-mail or on e-prison portal and
Trial Court via e-mode 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 as well as Pila Pahan@Peela Pahan and others
Vs. State of Jharkhand and another, in Writ Petition (Criminal) No.
169 of 2025, decided on 29.05.2026.
14. Application, if any, stands disposed of.
(Arun Kumar Singh Deshwal,J.)
October 1, 2026
SA
Digitally signed by :-
SALMAN ALI
High Court of Judicature at Allahabad
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