High Court · 2025

2. Heard Sri R.V. Pandey, learned counsel for the applicant and Mrs. Beena Mishra, holding brief of Mrs. Babita Upadhyay, learned counsel for High Court Legal Services Committee as well as Sri R.P. Patel, learned State Law Officer and also perused the material placed on record.

3. This is the second bail application filed on behalf of the applicant seeking bail in Case Crime No. 112 of 2021, under Sections 363, 366, 376, 506 of IPC and Sections 3/4 of POCSO Act, Police Station - Atarra, District - Banda, during the pendency of trial. His first bail application was rejected by Hon'ble Mr. Retd. Justice Mohd. Aslam vide order dated 14.07.2022 passed in C.M.B.A. No. 39151 of 2021.

4. As per the office report dated 03.03.2025, the original ossification test report of the victim is received. Office is directed to send this original report to the trial court forthwith for keeping it on record, after retaining the photocopy of the same.

5. Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case. He has nothing to do with the said offence as alleged in the FIR.

6. Learned counsel has also stated that the victim is the consenting party as is evident from her statement recorded u/s 164 Cr.P.C.. Her consent can also be drawn from the statement given by the victim before the doctor. The victim by her looks seems to be major although as per ossification test report, her age has come out to be 15 years at the time of offence, as such, a leverage of two years may be granted to the applicant on upper side in light of law laid down by Supreme Court. There is no medical corroboration of the incident.

7. Learned counsel has further stated that the trial is moving at a snail's pace and the applicant is in jail since 09.06.2021, as such, his fundamental rights enshrined under Article 21 of the Constitution of India stands violated. There is no criminal history of the applicant. In case, the applicant is released on bail, he will not misuse the liberty of bail and shall cooperate with trial.

8. This Court had called for a status of trial from the trial court and as per the status report, the statement of only one witness is complete and the examination-in-chief of the victim has yet to be completed as the same could not be completed on the date she was present before court. The said report itself implies that the trial is moving at a snail's pace.

9. Per contra, learned State Law Officer and learned counsel for High Court Legal Services Committee have vehemently opposed the bail application but unable to dispute the submissions raised by the learned counsel for the applicant and also the fact that the applicant has no criminal history.

10. With respect to the age of the victim, a leverage of two years can be granted to the applicant on the upper side in light of the judgement of Supreme Court passed in Jaya Mala Vs. State of J & K, (1982) 2 SCC 538 and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), (2011) 10 SCC 192, whereby it has been opined that the radiologist cannot predict the correct date of birth rather there is a long margin of 1 to 2 years on either side.

11. The Supreme Court while granting bail to former Tamil Nadu Minister in V. Senthil Balaji v. Enforcement Directorate, 2024 SCC OnLine SC 2626 held that higher thresholds for granting bail in stringent penal statutes like the PMLA, UAPA, and NDPS Act cannot be a tool to keep an accused incarcerated without trial. It emphasized the incompatibility of stringent bail provisions with prolonged delays in trial.

12. While granting bail to ex-West Bengal Minister in Partha Chatterjee v. Enforcement Directorate, 2024 SCC OnLine SC 3729, the Supreme Court reiterated the principle that "a suspect cannot be held in custody indefinitely and that undertrial incarceration should not amount to punitive detention." "The Court would, nevertheless, ensure that affluent or influential accused do not obstruct the ongoing investigation, tamper with evidence, or influence witnesses, namely, actions that undermine the fundamental doctrine of a fair trial," observed the bench.

13. The Supreme Court in the case of Union of India vs. K.A. Najeeb, AIR 2021 SC 712, has observed as under:- "We are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail."

14. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and also considering the status of trial, period of incarceration of the applicant coupled by the statement of the victim recorded u/s 164 Cr.P.C. and also before the doctor, I find it a fit case to release the applicant on bail. The bail application is allowed.

15. Let the applicant- Amit Kumar, who is involved in aforementioned case 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 subject to following conditions. Further, before issuing the release order, the sureties be verified. i) The applicant will not tamper with the evidence during trial. ii) The applicant will not pressurise/intimidate with the prosecution witnesses. iii) The applicant will appear before the trial court on the date fixed.

16. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

17. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date:- 11.7.2025 Siddhant (Justice Krishan Pahal) SIDDHANT SAHU High Court of Judicature at Allahabad

2. Heard Sri R.V. Pandey, learned counsel for the applicant and Mrs. Beena Mishra, holding brief of Mrs. Babita Upadhyay, learned counsel for High Court Legal Services Committee as well as Sri R.P. Patel, learned State Law Officer and also perused the material placed on record.

3. This is the second bail application filed on behalf of the applicant seeking bail in Case Crime No. 112 of 2021, under Sections 363, 366, 376, 506 of IPC and Sections 3/4 of POCSO Act, Police Station - Atarra, District - Banda, during the pendency of trial. His first bail application was rejected by Hon'ble Mr. Retd. Justice Mohd. Aslam vide order dated 14.07.2022 passed in C.M.B.A. No. 39151 of 2021.

4. As per the office report dated 03.03.2025, the original ossification test report of the victim is received. Office is directed to send this original report to the trial court forthwith for keeping it on record, after retaining the photocopy of the same.

5. Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case. He has nothing to do with the said offence as alleged in the FIR.

6. Learned counsel has also stated that the victim is the consenting party as is evident from her statement recorded u/s 164 Cr.P.C.. Her consent can also be drawn from the statement given by the victim before the doctor. The victim by her looks seems to be major although as per ossification test report, her age has come out to be 15 years at the time of offence, as such, a leverage of two years may be granted to the applicant on upper side in light of law laid down by Supreme Court. There is no medical corroboration of the incident.

7. Learned counsel has further stated that the trial is moving at a snail's pace and the applicant is in jail since 09.06.2021, as such, his fundamental rights enshrined under Article 21 of the Constitution of India stands violated. There is no criminal history of the applicant. In case, the applicant is released on bail, he will not misuse the liberty of bail and shall cooperate with trial.

8. This Court had called for a status of trial from the trial court and as per the status report, the statement of only one witness is complete and the examination-in-chief of the victim has yet to be completed as the same could not be completed on the date she was present before court. The said report itself implies that the trial is moving at a snail's pace.

9. Per contra, learned State Law Officer and learned counsel for High Court Legal Services Committee have vehemently opposed the bail application but unable to dispute the submissions raised by the learned counsel for the applicant and also the fact that the applicant has no criminal history.

10. With respect to the age of the victim, a leverage of two years can be granted to the applicant on the upper side in light of the judgement of Supreme Court passed in Jaya Mala Vs. State of J & K, (1982) 2 SCC 538 and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), (2011) 10 SCC 192, whereby it has been opined that the radiologist cannot predict the correct date of birth rather there is a long margin of 1 to 2 years on either side.

11. The Supreme Court while granting bail to former Tamil Nadu Minister in V. Senthil Balaji v. Enforcement Directorate, 2024 SCC OnLine SC 2626 held that higher thresholds for granting bail in stringent penal statutes like the PMLA, UAPA, and NDPS Act cannot be a tool to keep an accused incarcerated without trial. It emphasized the incompatibility of stringent bail provisions with prolonged delays in trial.

12. While granting bail to ex-West Bengal Minister in Partha Chatterjee v. Enforcement Directorate, 2024 SCC OnLine SC 3729, the Supreme Court reiterated the principle that "a suspect cannot be held in custody indefinitely and that undertrial incarceration should not amount to punitive detention." "The Court would, nevertheless, ensure that affluent or influential accused do not obstruct the ongoing investigation, tamper with evidence, or influence witnesses, namely, actions that undermine the fundamental doctrine of a fair trial," observed the bench.

13. The Supreme Court in the case of Union of India vs. K.A. Najeeb, AIR 2021 SC 712, has observed as under:- "We are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail."

14. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and also considering the status of trial, period of incarceration of the applicant coupled by the statement of the victim recorded u/s 164 Cr.P.C. and also before the doctor, I find it a fit case to release the applicant on bail. The bail application is allowed.

15. Let the applicant- Amit Kumar, who is involved in aforementioned case 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 subject to following conditions. Further, before issuing the release order, the sureties be verified. i) The applicant will not tamper with the evidence during trial. ii) The applicant will not pressurise/intimidate with the prosecution witnesses. iii) The applicant will appear before the trial court on the date fixed.

16. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

17. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date:- 11.7.2025 Siddhant (Justice Krishan Pahal) SIDDHANT SAHU High Court of Judicature at Allahabad