Allahabad High Court
MAKKHAN ALIAS MAKHANversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- KRISHAN PAHAL
Holding
The court held that, prima facie, the applicant is entitled to bail.
Summary
Makkhan, a married man, was arrested in a case alleging that he eloped with a 17‑year‑old girl who claimed to love him. The FIR, filed four days after the alleged disappearance, accused him of offences under Sections 137(2), 87, 64(1) of the BNS Act and Sections 5 and 6 of the POCSO Act. The applicant pleaded innocence, argued that the girl was a consenting adult despite her age, and highlighted the delay in filing the FIR and his clean record. The State opposed bail, contending that the girl’s statement under Section 183 of the BNS indicated non‑consent and that the applicant had ravished her in his house. The Court, after considering the delay, the alleged consent, and the lack of a criminal history, concluded that the applicant had made out a prima‑facie case for bail and ordered his release on personal bond with conditions. The bail order is subject to verification of sureties and compliance with conditions, without prejudice to the trial on merits.
Issues considered
- Whether bail can be granted in a case involving alleged offences under the POCSO Act and BNS Act.
- Whether the four‑day delay in filing the FIR is a ground to deny bail.
- Whether the alleged consent of a 17‑year‑old victim affects the grant of bail.
- Whether the applicant’s marital status and lack of prior criminal record justify bail.
Legislation cited
- BNS Act — s. 137(2), 64(1), 87
- Protection of Children from Sexual Offences (POCSO) Act — s. 5, 6
Subjects
- bail
- POCSO Act
- consent
- FIR delay
- sexual assault
- minor
- criminal procedure
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 44581 of 2025
Makkhan Alias Makhan
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Brijesh Kumar Srivastava
Counsel for Opposite Party(s) : Brijesh, G.A.
Court No. - 65
(Sr. No.126 out of 269)
HON'BLE KRISHAN PAHAL, J.
1. List has been revised.
2. Heard Sri Brijesh Kumar Srivastava, learned counsel for the applicant, Sri
Abhay Pratap Singh, Advocate holding brief of Sri Brijesh, counsel for the
informant as well as Sri Rajendra Prasad Singh, learned State Law Officer
for the State and perused the material placed on record.
3. Applicant seeks bail in Case Crime No.23 of 2025, under Sections 137(2),
87, 64(1) BNS and 5/6 POCSO Act, Police Station Gida, District Gorakhpur,
during the pendency of trial.
4. As per the prosecution story, the FIR was instituted by the informant
stating that his daughter had been missing since 9.1.2025. She called the
informant on his phone and stated that she had gone to marry the applicant
and that she was deeply in love with him. The applicant was already a
married person, as such, the FIR was instituted.
5. Learned counsel for the applicant has argued that the applicant is
absolutely innocent and has been falsely implicated in the present case. The
FIR is delayed by about four days and there is no explanation of the said
delay caused. The victim is a consenting party as is but evident from the FIR
itself and the statement of victim recorded U/s 183 BNSS.
6. It is further argued by learned counsel for the applicant that the victim, by
her looks, seems to be major, although she is stated to be 17 years old as per
BAIL No. 44581 of 2025
2
her own statement. It is true that applicant is a married person, but the victim
is a consenting party. The applicant has no criminal history and is in jail
since 12.5.2025. He undertakes to cooperate with the trial and not misuse the
liberty of bail.
7. Learned counsel for the informant and learned State Law Officer have
vehemently opposed the bail application on the ground that the victim in her
statement recorded U/s 183 BNSS has stated that the wife and children of
the applicant were present there and he ravished her in his own house, but
the submissions raised by the learned counsel for the applicant could not be
disputed.
8. Considering the facts and circumstances of the case, submissions made by
learned counsel for the parties, the evidence on record, taking into
consideration the delay of four days in institution of FIR, as well as the fact
that victim seems to be a consenting party, and without expressing any
opinion on the merits of the case, prima-facie the Court is of the view that
the applicant has made out a case for bail. The bail application is allowed.
9. Let the applicant- Makkhan Alias Makhan, be released on bail on
furnishing a personal bond and two sureties to the satisfaction of the court
concerned, subject to verification of sureties, with the conditions that he
shall not tamper with evidence or intimidate witnesses and shall appear
before the trial court as required.
10. Breach of any condition shall entail cancellation of bail. The
observations herein shall not affect the trial on merits.
(Krishan Pahal,J.)
May 14, 2026
Vikas Verma
Digitally signed by :-
VIKAS VERMA
High Court of Judicature at Allahabad
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