Allahabad High Court
BOBYversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- GAUTAM CHOWDHARY
Holding
The Court held that bail should be granted to the accused under the applicable statutes, subject to conditions.
Summary
The High Court considered bail applications filed by Boby and Rahul, who were charged under sections 137(2), 64(2)(ड), 87 of the B.N.S. and sections 5L/6 of the POCSO Act for allegedly enticing two minors, aged 17 and 15, to elope and engage in sexual relations. The defence argued that the older victim consented to the relationship and that the medical examination showed no spermatozoa, challenging the prosecution’s case. The State opposed bail, fearing the accused might misuse liberty, but could not refute the consent and medical evidence arguments. After weighing the seriousness of the allegations against the lack of corroborative forensic proof and the applicants’ willingness to cooperate, the Court found the case suitable for bail without expressing a view on guilt. Consequently, the Court granted bail to both applicants subject to a personal bond, two sureties each, and strict conditions to prevent tampering with evidence or intimidation of witnesses.
Issues considered
- Whether bail should be granted to accused persons charged under the B.N.S. and POCSO Act when alleged consent of a minor is claimed.
- Whether the absence of spermatozoa in the vaginal smear undermines the prosecution’s case and justifies bail.
- Whether the accused are likely to tamper with evidence or influence witnesses if released on bail.
Legislation cited
Subjects
- bail
- POCSO Act
- consent of minor
- sexual offences
- medical evidence
- criminal procedure
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 3662 of 2026
Boby
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Ajay Kumar Pandey, Birendra Kumar
Mishra
Counsel for Opposite Party(s) : Ashutosh Pandey, G.A.
Along with :
1. Criminal Misc. Bail Application No. 41856 of 2025:
Rahul
Versus
State of U.P. and 3 others
Court No. - 65
HON'BLE DR. GAUTAM CHOWDHARY, J.
1. List revised. None appears either for the informant or Child Welfare
Committee as well as for the High Court Legal Services.
2. Heard learned counsel for the applicants, Sri Ashutosh Pandey, learned
counsel for the informant, learned A.G.A for the State and perused the
record.
3. The applicant-Boby filed the Criminal Misc. Bail Application No.366
of 2026 whereas the applicant-Rahul has filed Criminal Misc. Bail
Application No. 41856 of 2025 with a prayer to enlarge them on bail in
Crime No.445 of 2025, under Section 137(2), 64(2)(ड), 87 of B.N.S., and
Section 5L/6 of POCSO Act, Police Station Malpura, District Agra during
the pendency of the trial.
4. Learned counsel for the applicants has contended that in the instant
case, there are two victims (hereinafter to be referred to as "A" and "B').
The allegations are that the accused-applicant Rahul had enticed away
BAIL No. 3662 of 2026
2
victim "A" aged about 17 years and victim "B" aged about 14 years and in
the said elopement, the accused-applicant Boby has assisted him. Learned
counsel for the applicant has contended that as per ossification test, the
age of the victim "A" and "B" has been assessed as 17 years and 15 years
respectively. Learned counsel has further argued that the victim "A", who
is aged about 17 years, in her statement recorded under Section 183 of
B.N.S.S. has stated that she had gone with the applicant-Rahul out of her
own free will and consent at Surat and physical relations were also
established with her consent. She has also stated that she wants to go with
the applicant-Rahul. On the other side, the victim "B" in her statement
recorded under Section 183 of B.N.S.S., who is aged about 15 years, has
stated that she had gone with the applicant Boby out of her own free will
and consent and that there is no allegation of commission of rape or any
molestation, rather she has stated that she wants to stay with the
applicant-Boby. Learned counsel further argued that so far as the physical
relations established by the accused Rahul with victim "A" is concerned,
she is a consenting party and therefore no allegation as against the
applicant-accused Rahul is made out, whereas the allegation against the
applicant-Boby is concerned, there is no whisper of molestation or rape
against the applicant has been levelled by the victim "B". It is thus
contended that no offence is made out against the applicant. Apart from
the aforesaid submissions, learned counsel has also drawn attention of this
Court to the supplementary report of the victim "A" and "B", copy of
which is at page no.81 and 83 of the paper book and argued that as per
pathological report, spermatozoa not seen in the vaginal smear
examination. It is thus contended that the medical report also does not
corroborates with the prosecution version. Learned counsel has argued
that the applicants are innocent and they have been falsely implicated in
the present case due to ulterior motive. Several other submissions in order
to demonstrate the falsity of the allegations made against the applicants
have also been placed before the Court. The circumstances which,
according to the counsel, led to the false implication of the accused have
also been mentioned. It has also been assured on behalf of the applicants
that they are ready to cooperate with the process of law and shall
faithfully make themselves available before the court whenever required
and are also ready to accept all the conditions which the Court may deem
BAIL No. 3662 of 2026
3
fit to impose upon them. He next submits that applicants are languishing
in jail since 28.09.2025.
5. Learned AGA has vehemently opposed the bail application and submits
that in case the applicants are released on bail they will misuse the liberty
of bail, however, could not dispute the submission of learned counsel for
the applicants with regard to parity.
6. Considering the overall facts and circumstances, the nature of
allegations, the gravity of offence and without expressing any opinion on
merits, this Court finds it to be a fit case for bail. Accordingly, the bail
application stands allowed.
7. Let the applicants Boby and Rahul be released on bail in Crime
No.445 of 2025, under Section 137(2), 64(2)(ड), 87 of B.N.S., and
Section 5L/6 of POCSO Act, Police Station Malpura, District Agra, on
executing a personal bond and furnishing two local sureties each in the
like amount to the satisfaction of the court concerned subject to the
following conditions:
i) The applicants shall not tamper with the prosecution evidence.
ii) The applicants shall not threaten or harass the prosecution witnesses.
iii) The applicants shall appear on the date fixed by the trial court.
iv) The applicants shall not commit an offence similar to the offence of
which the applicants are accused, or suspected of the commission.
v) The applicants 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 such person from disclosing facts to the Court or to any police
officer or tamper with the evidence.
8. In case of breach of any of the above condition, the trial Court shall be
at liberty to cancel the bail of the applicant in accordance with law.
(Dr. Gautam Chowdhary,J.)
March 10, 2026
S.Ali
Digitally signed by :-
SHAUKAT ALI
High Court of Judicature at Allahabad
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