The Allahabad High Court has granted anticipatory bail to a detenue accused under the Protection of Children from Sexual Offences Act, 2012 and the Bharatiya Nyaya Sanhita, 2023, despite material contradictions in the victim’s statements and the absence of a medico-legal examination report. The Court emphasized the prolonged incarceration, trial pendency, and overcrowded prison conditions while relying on recent Supreme Court and High Court precedents on bail jurisprudence.
Background & Facts
The Genesis
The applicant, Pavan Kumar, was arrested on 12.01.2025 in connection with Case Crime No. 0014 of 2025 registered at Police Station Gola, District Gorakhpur. The FIR alleges penetrative sexual assault on a 4-year-old victim under Section 65(2) of the Bharatiya Nyaya Sanhita (BNS) and Sections 5(m)/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
Key Facts
- The victim’s statement recorded under Section 180 BNSS stated that the applicant inserted his fingers into her private parts.
- In contrast, her statement under Section 183 BNSS claimed that the applicant merely touched her private parts.
- The first informant (victim’s mother) informed the doctor that no incident of rape had occurred and refused to allow a medico-legal examination.
- The trial court’s report indicates that only the examination-in-chief of PW-1 (likely the victim) and PW-2 has been completed, while cross-examination remains deferred.
- The applicant has been in custody since 12.01.2025 and has no prior criminal history.
Procedural History
- 12.01.2025: Applicant arrested and remanded to judicial custody.
- Bail Application filed: Criminal Misc. Bail Application No. 192 of 2026 before the Allahabad High Court.
- Hearing dates: Arguments heard on an unspecified date in 2026; order reserved and pronounced on 16.07.2026.
The Parties' Positions
For the Applicant
- The applicant is falsely implicated and there is no medico-legal report supporting the allegations.
- The first informant has stated that no rape occurred, and the victim’s contradictory statements undermine the prosecution’s case.
- The trial is unlikely to conclude soon, with only two witnesses partially examined.
- The applicant has been incarcerated for over six months without a concluded trial.
For the State
- The victim’s statement under Section 180 BNSS confirms penetrative assault.
- The offence involves a 4-year-old child, warranting strict scrutiny.
- The State opposed bail but did not dispute the factual matrix presented by the applicant.
Relief Sought
The applicant sought bail during the pendency of the trial, subject to conditions ensuring cooperation and non-tampering with evidence.
The Legal Issue
The central question was whether the applicant was entitled to bail despite material contradictions in the victim’s statements, the absence of a medico-legal report, and the serious nature of the allegations under POCSO and BNS.
Arguments Presented
For the Applicant
Learned counsel for the applicant argued that the contradictory statements of the victim under Sections 180 and 183 BNSS cast doubt on the prosecution’s case. It was further contended that the absence of a medico-legal examination - due to the first informant’s refusal - weakened the evidentiary foundation. The applicant’s prolonged incarceration (since 12.01.2025) and lack of criminal history were highlighted as mitigating factors. It was asserted that the applicant would cooperate in the trial and not misuse bail.
For the Respondent
The State, through the learned AGA, opposed bail but did not dispute the factual assertions regarding trial pendency or the victim’s contradictory statements. The State emphasized the vulnerability of the victim (aged 4 years) and the seriousness of the offence under POCSO and BNS.
The Court's Analysis
The Court examined the contradictions in the victim’s statements and noted that while the allegations were serious, the absence of a medico-legal report and the first informant’s refusal to allow examination introduced reasonable doubt. The Court observed that the trial’s progress was minimal, with only two witnesses partially examined and cross-examination pending.
The Court relied on the Supreme Court’s judgment in Kapil Wadhawan v. Central Bureau of Investigation (2025 SCC OnLine SC 3038) and this Court’s decision in Maya Tiwari v. State of U.P. (2024 SCC Online All 6765), which emphasize the need to balance individual liberty with societal interests in bail jurisprudence. The Court acknowledged the overcrowded prison conditions and heavy pendency of criminal cases as factors warranting a liberal approach to bail.
"Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties 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 judgement 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. reported in 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."
The Court clarified that its order did not reflect any opinion on the merits of the case or the ultimate guilt of the applicant.
The Verdict
The Allahabad High Court allowed the bail application and directed the release of the applicant, Pavan Kumar, on furnishing a personal bond and two sureties. The Court imposed strict conditions, including:
- Non-inducement or tampering with witnesses or evidence.
- Sincere cooperation in trial proceedings without seeking adjournments.
- No criminal activity post-release.
- Attendance as per bond conditions.
In case of breach, the bail was liable to be cancelled. The Court also directed verification of the applicant’s and sureties’ identity, status, residence, mobile number, and Aadhaar card. The trial court was ordered to transmit the release order via the Bail Order Management System (BOMS) for expeditious release. A copy of the order was to be sent to the jail superintendent within 24 hours, in compliance with the Supreme Court’s directions in Suo Motu Writ Petition (Crl.) No.4 of 2021 (decided on 31.01.2023).
What This Means For Similar Cases
Contradictory Victim Statements Do Not Automatically Preclude Bail
Practitioners should note that material contradictions in victim statements - even in POCSO cases - may not bar bail if they cast doubt on the prosecution’s case. Courts are increasingly scrutinizing the evidentiary strength rather than the gravity of the offence alone when deciding bail applications.
- Actionable takeaway: Argue for bail where victim statements are inconsistent or where key evidence (e.g., medico-legal reports) is absent.
Prolonged Incarceration and Trial Pendency Are Critical Factors
The judgment reaffirms that overcrowded jails and delayed trials are legitimate considerations for granting bail. Courts are now more willing to release accused persons where trials are unlikely to conclude in the near future.
- Actionable takeaway: Highlight trial pendency and incarceration duration in bail applications to strengthen arguments for release.
Strict Compliance with Bail Conditions Is Non-Negotiable
The Court imposed stringent conditions, including verification of identity and Aadhaar details, and directed compliance via BOMS. Breach of any condition could lead to bail cancellation.
- Actionable takeaway: Ensure strict adherence to bail conditions and document compliance meticulously to avoid cancellation.
