Dismissed¶32

Mahendra @ Prem Kushwah v. State of U.P. and 3 Others

Allahabad HC19 May 2025BAIL/16849/2025

Case brief

AI extract

What is this about?

Repeat bail application rejected; Allahabad High Court; Rajeev Misra, J.; order dated 19.5.2025; Mahendra @ Prem Kushwah; Case Crime No. 252 of 2023; Sections 363, 376 IPC; Section 3/4 POCSO Act; minor prosecutrix; Sessions Trial No. 1053 of 2023; Etah; Kotwali Dehat; P.W.1 and P.W.2 deposed; no new grounds emerged; A.G.A. objections upheld; first bail rejected 29.11.2023; Section 173(2) Cr.P.C. police report; Section 4(2) POCSO Act sentence; Sumit Subhaschandra Gangwal 2023 Live Law (SC) 373 referred.

What did the court decide?

The objections raised by the learned A.G.A. in opposition to the repeat bail application are clearly borne out from the record and could not be dislodged by the learned counsel for applicant with reference to the record. ¶31

Mahendra @ Prem Kushwah vs State of U.P. and… — Child Sexual Offences (POCSO) | Allahabad HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶32

Issue for consideration

Whether, after rejection of the applicant's first bail application on 29.11.2023 and in view of subsequent developments (commencement of Sessions Trial No. 1053 of 2023 and deposition of P.W.1 and P.W.2), any new, good or sufficient ground has emerged to enlarge the applicant on bail during the pendency of trial.

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Court's answer

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Ratio / Principle

No new, good or sufficient ground has emerged to enlarge the applicant on bail; the repeat application for bail therefore fails and is rejected.

¶31

Detailed headnote1 paragraphs

Allahabad High Court (Rajeev Misra, J.), order dated 19.5.2025: repeat bail application of Mahendra @ Prem Kushwah, named and charge-sheeted accused in Case Crime No. 252 of 2023 (Sections 363, 376 IPC; Section 3/4 POCSO Act), P.S. Kotwali Dehat, District Etah, rejected. His first bail application had been rejected on 29.11.2023 in Criminal Misc. Bail Application No. 40251 of 2023. Since then, Sessions Trial No. 1053 of 2023 commenced and P.W.1 (prosecutrix's mother) and P.W.2 (prosecutrix) were examined; counsel argued that with the prosecutrix's deposition recorded, further custodial detention served no purpose, citing Sumit Subhaschandra Gangwal v. State of Maharashtra, 2023 Live Law (SC) 373, and noting the police report under Section 173(2) Cr.P.C. had crystallised the prosecution evidence. The learned A.G.A. opposed, stressing the applicant's status as named and charge-sheeted accused, the young age of the prosecutrix, the medical evidence, and the sentence provided under Section 4(2) of the POCSO Act. Holding that the A.G.A.'s objections were clearly borne out from the record and could not be dislodged, the Court found no new, good or sufficient ground had emerged and rejected the repeat application.

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Court No. - 70

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16849 of 2025

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Applicant :- Mahendra @ Prem Kushwah Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sunil Kumar Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Sunil Kumar Yadav, the learned counsel for applicant and the learned A.GA. for State.

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Perused the record.

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This repeat application for bail has been filed by applicantMahendra @ Prem Kushwah seeking his enlargement on bail in Case Crime No. 252 of 2023, under sections 363, 376 IPC and Section 3/4 POCSO Act, Police Station- Kotwali Dehat, District Etah, during the pendency of Sessions Trial No. 1053 of 2023 (State Vs. Mahendra @ Prem Kushwah) now pending in the Court of Additional Sessions Judge-1/Special Judge (Rape and Pocso Act) (Execlusive Court), Etah.

¶8

The first bail application of applicant was rejected by this Court vide order dated 29.11.2023, passed in Criminal Misc. Bail Application No. 40251 of 2023 (Mahendra Alia Prem Kushwah Vs. State of U.P. and 3 Others). For ready reference, the same is reproduced herein under:

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"Heard Mr. Vipin Kumar, the learned counsel for applicant and the learned A.G.A. for State.

¶10

Perused the record.

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This application for bail has been filed by applicant- Mahendra @ Prem Kushwaha seeking his enlargement on bail in Case Crime No. 252 of 2023, under Sections 363, 376 IPC and Section 3/4 POCSO Act, POCSO Act, Police Station- Kotwali Dehat, District Etah, during the pendency of trial.

¶12

At the very outset, the learned A.G.A. submits that notice of present application for bail has already been served upon first informant/opposite party-2 on 11.9.2023. However, inspite of service of notice, no one has put in appearance on behalf of first informant/opposite party-2 to oppose this application.

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Record shows that, in respect of an incident which is alleged to have occurred on 4.6.2023, a belated F.I.R. dated 6.6.2023 was lodged by first informant- Virma

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Devi, mother of the prosecutrix and was registered as Case Crime No. 252 of 2023, under Sections 363, 376 IPC and Section 3/4 POCSO Act, POCSO Act, Police Station- Kotwali Dehat, District Etah. In the aforesaid F.I.R. an unknown person has been arraigned as solitary accused.

¶15

The gravamen of the allegations made in the F.I.R. is to the effect that the daughter of the first informant namely X aged about 14 years went missing from 14.6.2023.

¶16

After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. The prosecutrix was recovered on 19.6.2023. Thereafter, the statement of the prosecutrix was recorded under section 161 Cr.P.C. which is on record at page 28 of the paper book. The prosecutrix in her aforesaid statement has stated that she was in acquaintance with applicant. She further states that in the interregnum physical relations were maintained. Investigating Officer further recovered Identity Card of Class-IV of the prosecutrix. As per said material of the prosecutrix, the date of birth of the prosecutrix recorded is 20.4.2010. Thereafter, the prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the Doctor who medically examined her has not supported the F.I.R. The genisus of her statement is that she was in consensual physical relationship with the application. The Doctor who medically examined the prosecutrix however did not find any signs on her body so as to denote commission of deliberate sexual assault. However with regard to the private part of the prosecutrix the Doctor has opined as follows:

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"Hymen Not Intact"

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Ultimately, the statement of the prosecutrix was recorded under section 164 Cr.P.C., same is on record at page 48 of the paper book. The prosecutrix in her aforesaid statement has re-affirmed her previous statement under section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer, during course of investigation he came to the conclusion that complicity of applicant is established in the crime in question. He, accordingly submitted the charge sheet dated 5.7.2021, whereby applicant has been charge sheeted under sections 363, 376 IPC and Section 3/4 POCSO Act. Learned counsel for applicant contends that though the applicant is a named and charge sheeted accused yet he is liable to be enlarged on bail. Applicant is innocent. He has been falsely implicated in the crime in question. It is then contended that prosecutrix in her statements under sections 161 and 164 Cr.P.C. has not supported the F.I.R. The prosecutrix is a willing and consenting party. On the above premise, no offence as complained of is made out against applicant. As such, applicant is liable to be enlarged on bail.

¶19

Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 19.6.2023. As such, he has undergone more than four months of incarceration. Police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicant stands crystalized. However, upto this stage, no such, circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial.

¶20

Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that the prosecutrix is a young girl aged about 13 years of age whose modesty has been dislodged. Since prosecutrix is below 16 years of age, therefore, her consent if any is immaterial. There is nothing on record to show the consent of the parents of the prosecutrix. In view of the judgement of Supreme Court in X(Minor) Vs/State of Jharkhand and Anr., 2022 Live Law (SC) 194, he submits

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that since prosecutrix is below 16 years of age, therefore, her consent is immaterial, and therefore no sympathy be shown by this Court in favour of applicant. The medical opinion regarding the private part of the prosecutrix clearly suggest that her modesy was dislodged. As such the bail application is liable to be rejected.

¶22

When confronted with above, the learned counsel for applicant could not overcome the same.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that objections raised by the learned A.G.A. in opposition to the present application bail could not be dislodged by learned counsel for applicant, therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of the present application for bail, but without making any comment on the merits of the case this Court does not find any good or sufficient ground to enlarge the applicant on bail.

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In view of above, the application fails and is liable to be rejected.

¶25

It is accordingly rejected. "

¶26

Learned counsel for applicant contends that though the applicant is a named and charge sheeted accused and facing trial before Court below, however, in view of the facts as have now emerged on record, applicant is liable to be enlarged on bail. According to the learned counsel for applicant, subsequent to the order dated 29.11.2023, passed by this Court, trial of applicant commenced before Court below by means of aforementioned Sessions Trial. Up to this stage, two prosecution witnesses i.e. P.W.1 mother of the prosecutrix and P.W.2, the prosecutrix, have deposed before court below. He, therefore submits that since depositions of P.W.1 and P.W2 have already recorded therefore no good ground exists to prolong the custodial arrest of applicant. Since depositions of P.W.2 has been recorded then in that eventualityif the applicant is enlarged on bail then it cannot be said that in case, the applicant is enlarged on bail, he shall either terrorize the witnesses or shall hamper the course of trial. Referring to the judgement of Supreme Court in Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another, 2023 Live Law (SC) 373 (paragraph 5), the learned counsel for applicant contends that in view of the facts noted above and further that the chargesheet/police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized. However, upto this stage no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial.

¶27

Even otherwise, applicant is a man of clean antecedents inasmuch

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as he has no criminal history to his credit except the present one. Applicant is in jail since 19.6.2023. As such, he has undergone more than one year and ten months of incarceration. It is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail during the pendency of trial. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

¶29

Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. According to the learned A.G.A, prosecutrix was a young and innocent girl aged about 14 years on the date of occurrence. The medical evidence clearly proves the commission of crime alleged to have been committed by applicant. Considering the nature and gravity of offence, as well as the sentence provided for the offence complained of under section 4(2) of the POCSO Act, no indulgence be granted by this Court in favour of applicant. On the above premise, the learned A.G.A. contends submits that in view of the facts as stated above, no new good or sufficient ground has emerged so as to enlarge the applicant on bail.

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When confronted with above, the learned counsel for applicant could not overcome the same.

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Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this repeat application for bail are clearly borne out from the record and furthermore the same could not be dislodged by the learned counsel for applicant, with reference to the record. As such, no new, good or sufficient ground has emerged to as to enlarge the applicant on bail.

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In view of above, this repeat application for bail fails and is liable to be rejected.

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It is accordingly rejected.

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Order Date :- 19.5.2025 Arshad

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Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

Mahendra @ Prem Kushwah v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Mahendra @ Prem Kushwah v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

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