(1 of 3)

[CRLMB-7113/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Criminal Miscellaneous Bail Application No. 7113/2021

Dinesh Kumar S/o Pata Ram, Aged About 21 Years, Jhak, Police

Station Gida, District Barmer.

(At Present Lodged In Sub Jail Balotra).

----Petitioner

Versus

State of Rajasthan, Through P.P.

----Respondent

For Petitioner(s)

:

Mr. Rakesh Matoria through VC

For Respondent(s)

:

Mr. S.K. Bhati, PP

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

(VACATION JUDGE)

Order

24/06/2021

The present bail application has been filed under Section 439

Cr.P.C. on behalf of the petitioner, who is in judicial custody in

connection with F.I.R. No.258/2020, Police Station Gida, District

Barmer, registered for the offences under Sections 363, 366-A,

376(1) of IPC & Sections 5(J)(II) read with Section 6 of POCSO

Act, 2012.

Heard learned counsel for the petitioner appearing through

video conferencing and learned Public Prosecutor, present in

person. Perused the material available on record.

Despite repeated efforts, learned counsel for the complainant

has not joined for hearing through video conferencing.

Learned counsel for the petitioner stated that accused

petitioner is 21 years old; as per prosecution, prosecutrix is 17 to

18 years old; in fact, prosecutrix is an adult girl, having age of 20

(2 of 3)

[CRLMB-7113/2021]

years. Learned counsel stated that at the time of rejection of first

bail application of the accused-petitioner vide order dated

5.02.2021, liberty was granted to the petitioner to file a fresh bail

application after recording of the statements of material

witnesses. Learned counsel stated that as per the direction issued

by this Court, statements of material witnesses could not be

recorded before the trial Court due to Covid-19 pandemic situation

and lockdown imposed by the State Government. However,

prosecutrix ‘G’ as well as her parents submitted an affidavit and

stated that no such type of incident took place with the

prosecutrix and they have no objection if the bail is granted to the

accused-petitioner. Learned counsel for the petitioner also stated

that counsel appearing on behalf of the complainant would not

have any objection if bail is granted in favour of the accused-

petitioner. With these submissions, learned counsel for the

petitioner prayed that benefit of bail may be granted to the

petitioner.

Per contra, learned Public Prosecutor has fervently and

vehemently opposed the bail application and stated that first of

all, condition imposed by this Court at the time of rejection of first

bail application has not been fulfilled and prior to that, no fresh

bail application is maintainable. Learned Public Prosecutor further

stated that as per the documentary evidence, prosecutrix is minor,

therefore, she can not be entitled to file documents as

aforementioned, before this Court. He further stated that condition

imposed by this Court at the time of rejection of first bail

application cannot be fulfilled by filing an affidavit. He further

stated that on the basis of an affidavit, benefit of bail in such type

(3 of 3)

[CRLMB-7113/2021]

of heinous offence in which prosecutrix is a minor and found

pregnant thereafter, cannot be granted.

Having regard to the facts and circumstances of the case,

particularly to the fact that condition was imposed by this Court at

the time of rejection of first bail application is not fulfilled;

statements of material witnesses have not been recorded before

the learned trial Court yet; an affidavit cannot be treated as a

sufficient evidence which has to be recorded by the learned trial

Court in such type of heinous offence, therefore, in the opinion of

this Court, benefit of bail cannot be granted on the basis of

affidavit submitted by the parents and prosecutrix to the accused-

petitioner.

Consequently, the