[2025:RJ-JD:47531]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 12516/2025 Rafiq S/o Rehman, Aged About 27 Years, Resident Of 14/305, Chopasani Housing Board, Jodhpur (At Present Lodged In Central Jail, Jodhpur.) ----Petitioner Versus

1. State Of Rajasthan, Through Public Prosecutor

2. Smt Ra, Resident Of Pagariya, Jhalawar Haal Dali Bai Chorah, Jodhpur (Raji Bai W/o Gopal Lal, R/o Bhagwan Ghar Risot, Dali Bai Choraha Ke Pass, Rajiv Gandhi Nagar Jodhpur City West, Raj.) ----Respondents For Petitioner(s) : Mr. Rishi Soni Ms. Kamini Joshi For Respondent(s) : Mr. Pawan Kumar Bhati, PP Mr. Siddharth Mewara for Mr. Moti Singh HON'BLE MR. JUSTICE MUKESH RAJPUROHIT

Order

(i) Arguments concluded on: 29/10/2025 (ii) Judgment reserved on : 29/10/2025 (iii) Full judgment/Operative part: Full judgment (iv) Judgment pronounced on : 06 / 11/2025 The instant application for bail under Section 483 of BNSS (439 of Cr.P.C.) has been filed by the petitioner who has been arrested in the present matter. The requisite details of the matter are tabulated herein below:

S. No. Particulars of the case

1. FIR Number 93/2025

2. Police Station Rajiv Gandhi Nagar

3. District Jodhpur City West

4. Offences alleged in the FIR 87

5. Offences added, if any Sec. 137(2), 96, 64(1) of BNS, Sec. 3/4, 11/12 of POCSO, Sec. 84 of JJ Act and Sec. 3(I)(W)(II), 3(2)

(V) of SC/ST Act Learned counsel for the petitioner submits that, as per the prosecution’s story, a written report was lodged by Smt. “Ra” alleging that her minor daughter, the victim “P”, had been abducted by the present petitioner–accused, Rafiq Khan, who allegedly harboured an ill intention towards the victim. It is alleged that the petitioner, who runs a pushcart adjacent to that of the victim’s father, abducted the victim with the intent of forcibly marrying her. Subsequently, a Habeas Corpus Petition No. 144/2025 was filed before this Court, and on 02.07.2025, the said petition was listed, whereupon the corpus was produced and handed over to her parents. Thereafter, a complaint was filed alleging that the petitioner had forcibly married the victim and fabricated certain forged documents to support the said act.

Learned counsel for the petitioner contends that the relationship between the petitioner and the victim was consensual in nature. In support of this contention, reliance has been placed upon the victim’s statements recorded under Sections 180 and 183 of the Bhartiya Nagarik Suraksha Sanhita (BNSS), wherein the victim has stated that she accompanied the accused of her own free will and that she became pregnant as a result of their relationship. Learned counsel further submits that, as per the marksheet of National Institute of Open Schooling, placed on record, the date of birth of the victim is 01.01.2007 (18 years and 1 month). It is further urged that the petitioner has been in cus- tody since his arrest, and that the trial is likely to take a consider- able period of time to conclude. Therefore, it is prayed that the petitioner may be enlarged on bail.

Per contra, learned Public Prosecutor as well as learned counsel for the complainant have vehemently opposed the prayer for bail. It is submitted that the victim was a minor at the time of the alleged incident, and therefore any consent she gave would be of no legal consequence. To substantiate their submission, reliance has been placed upon the school mark-sheet of the victim, wherein her date of birth is recorded as 19.04.2008, which clearly establishes that the victim was below 18 years of age at the time of the incident. It is, therefore, contended that the benefit of bail ought not to be extended to the petitioner.

I have heard the rival submissions and perused the material available on record.

The questions that arise for consideration before this Court are:

(i) Whether the victim accompanied the petitioner of her own free will;

and (ii) Whether the alleged consent, assuming it to be so, can be treated a