Yogendra Singh vs State
2022 Latest Caselaw 561 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

....

S.B. Criminal Misc. Bail Application No. 15239/2021.

Yogendra Singh S/o Kheem Singh, by caste Rawat, aged about

20 years, resident of Khimato Ka Badiya, Borwa, Borwa, Police

Station Bheem, District Rajsamand.

(Presently Lodged In District Jail Rajsamand)

----Petitioner Versus State of Rajasthan through PP.

----Respondent

For Petitioner(s) : Mr. Surendra Bana through video conferencing.

For Respondent(s) : Mr. Vikram Sharma, PP.

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Order

11/01/2022

In wake of onslaught of COVID-19, as per guidelines,

lawyers have been advised to refrain from coming to the Courts,

therefore, hearing of the matter is being taken up only through

video conferencing.

Heard learned counsel for the petitioner appearing through

video conferencing and the learned Public Prosecutor, present-in-

person. Perused the material available on record.

(2 of 4) [CRLMB-15239/2021]

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. 306/2021, Police Station Bheem,

District Rasjsamand, registered for the offences under Sections

363, 366-A, 376(2)(n) of the Indian Penal Code and Section 5(L)/

6 of the Protection of Children from Sexual Offences (POCSO)

Act.

Learned counsel for the petitioner stated that the prosecutrix

"M" was more than 17 years of age at the time of occurrence; that

the accused-petitioner is also 20 years old student of First Year;

that both the persons, i.e., accused-petitioner and the prosecutrix,

are belong to the same village; that as per documentary evidence,

i.e., love affairs etc., available on record; that this is a matter of

love and affairs; that the accused-petitioner is behind the bars

since last six months; that the charge-sheet has been filed; that

as per the evidence, the prosecutrix has visited so many places

along with the accused-petitioner, like Ahmedabad, Akola

(Maharashtra); that there are cordial relationship between the

accused-petitioner and the prosecutrix "M"; that, if any offence

was committed by the accused-petitioner during that period, the

prosecutrix can very well inform to any person; and that the trial

will take time, therefore, benefit of bail may be granted to the

accused-petitioner. In support of his contentions, learned counsel

for the petitioner has referred to and relied upon the following

judgments:-

                                      (3 of 4)                     [CRLMB-15239/2021]



(1)      In the case of Mahaveer                Vs.    State of Rajasthan (Bail

Application No. 8135/2021, decided by this Court on

04.08.2021); and

(2) In the case of Kishore Vs. State of Rajasthan (Bail

Application No. 7965/2021, decided by the co-ordinate

Bench of this Court on 16.07.2021).

Per contra, learned Public Prosecutor has vehemently and

fervently opposed the bail application of the accused-petitioner

and stated that admittedly, the prosecutrix was below 18 years of

age at the time of occurrence and she has categorically supported

the story of the prosecution during her statement recorded under

Section 164 Cr.P.C.; that the charge-sheet has been filed against

the accused-petitioner for the offences punishable under Sections

363, 366-A, 376(2)(n) of the IPC as well as Section 5(L)/6 of the

Protection of Children from Sexual Offences (POCSO) Act,

therefore, benefit of bail may not be granted to the accused-

petitioner.

Having regard to the facts and circumstances of the case,

this Court is of the opinion that the bail application filed by the

petitioner deserves to be rejected.

The facts of the present case are different from the facts in

which, bail was granted by this Court as well as by the co-ordinate

Bench of this Court.

(4 of 4) [CRLMB-15239/2021]

In the case of Mahaveer (supra), there were material

variations in the statement of the prosecutrix and statement of the

Hotel Manager - Kamal Kishore; even the Room Number, i.e., 63

was entirely different; means of the transport was also different;

as the prosecutrix, she was carried on motor-cycle whereas as per

FIR, she was carried in a white coloured Alto car.

Similarly, in the case of Kamal Kishore (supra), although

the ground for granting the bail was not mentioned but on perusal

of the entire case, it reveals that the bail was granted on the basis

of the medical report of the prosecutrix.

Apart from the above, it is settled position of law that the

'consent' of a minor girl child cannot be looked into for the offence

punishable under Section 5(L)/6 of the POCSO Act. Therefore,

without expressing any opinion on the merits or demerits of the

case, I do not find it to be a fit case for granting the benefit of

bail.

Resultantly, the bail applciation filed under Section 439

Cr.P.C. on behalf of the accused-petitioner, Yogendra Singh S/o

Kheem Singh, is dismissed.

(DEVENDRA KACHHAWAHA),J 25-Mohan/-

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