Abhishek Dube Alias Avi vs State Of Rajasthan on 15 July, 2025

Rajasthan High Court – Jodhpur

Abhishek Dube Alias Avi vs State Of Rajasthan on 15 July, 2025

[2025:RJ-JD:29866]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
     S.B. Criminal Miscellaneous Bail Application No. 7461/2025

Abhishek Dube @ Avi S/o Govind @ Dandraf Kumar, Aged About
21 Years, Resident of Ward No.15 Near Anil Parchun Shop,
Rodawali, Police Station Hanumangarh Junction, Tehsil and
District Hanumangarh (Raj.).
(Lodged In District Jail, Hanumangarh)
                                                                         ----Petitioner
                                         Versus
1.       State Of Rajasthan, Through Public Prosecutor.
2.       Dharmpal S/o Sulan Ram Bhal, Resident Of Chak 4 RRW
         Rodawali, Hanumangarh Junction, District Hanumangarh.
                                                                      ----Respondents


For Petitioner(s)              :    Mr. Arun Tyagi
                                    Mr. Kuldeep Sharma
                                    Mr. Prateek Tyagi
For Respondent(s)              :    Mr. Hanuman Prajapati, PP



          HON'BLE MR. JUSTICE MUKESH RAJPUROHIT

Order

RESERVED ON : 08/07/2025

PRONOUNCED ON : 15/07/2025

1. This application for bail under Section 483 of BNSS (439

Cr.P.C.) has been filed by the petitioner who has been arrested in

connection with F.I.R. No. 870/2024, registered at Police Station

Hanumangarh Junction, District Hanumangarh for the offences

under Sections 137(2), 87, 64(1), 65(1) & 3(5) of BNS, Section

3/4(2) of POCSO Act and Section 9/10 of Prohibition of Child

Marriage Act.

2. Learned counsel for the petitioner submits that the

allegations levelled against the present petitioner are to the effect

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that he lured and kidnapped the complainant’s minor daughter

Mst. ‘R’ and sexually assaulted her on several occasions. It is

further submitted that the petitioner and the prosecutrix knew

each other for a long time, and the prosecutrix in her statement

recorded before the Magistrate clearly stated that she left her

home and solemnised marriage with the petitioner thereafter he

established physical relations with her. It is stated that there is no

reference to forceful sexual assault and kidnapping by the

petitioner in her statement. It is further submitted that from a

bare perusal of the statements given by the prosecutrix to the

police, it is clear that she had an affair with the petitioner, left her

house voluntarily, accompanied him out of her free will to various

places and ultimately married him.

3. Learned counsel for the petitioner also submits that Sections

9/10 of the Child Marriage Prohibition Act have also been charged

against the present petitioner, however, the marriage is voidable

as per the said act as well as Section 5 of the Hindu Marriage Act.

It is further submitted that the essential ingredients to constitute

an offence under Sections 3 and 4 of the POCSO Act are absent in

the present case, as the prosecutrix has stated that she married

the accused-petitioner and did not allege any non-consensual

sexual act.

4. Learned counsel for the petitioner further submits that the

accused-petitioner has been falsely implicated in the present case.

It is submitted that the accused-petitioner is in custody

since 10.12.2024 and the trial of the case will take sufficiently

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long time; therefore, the accused-petitioner may be enlarged on

bail.

5. Conversely, the learned Public Prosecutor has strongly

opposed the bail application, while arguing that the accused-

petitioner not only committed sexual assault upon a minor girl but

also removed her from her parents’ lawful guardianship, causing

her mental and physical agony. He contended that this act

constitutes a heinous crime, therefore, considering the

seriousness of the offences, bail may not be granted to the

accused-petitioner.

6. Heard learned counsel for the petitioner and the learned

Public Prosecutor. Perused the material available on record.

7. It is an undisputed fact that the prosecutrix’s date of birth is

10.02.2009 and she was a minor (15 years 9 months) at the time

of the alleged incident that took place on 02.12.2024. Therefore,

her consent is irrelevant, as she cannot be considered a

consenting party. Even if she left home, married, and engaged in

physical relations with the accused-petitioner, her consent as a

minor holds no legal significance.

8. Moreover, the contentions raised upon validity of marriage

with the prosecutrix that it is voidable and not void under Hindu

Marriage Act, thus, comes under Exception 2 of Section 375 of IPC

(now Exception 2 of Section 63 of BNS); however, from the bare

perusal of Exception 2 of Section 63 of BNS it is crystal clear that

sexual intercourse or sexual act by a man with his wife and the

wife being under 18 years of age is considered as rape.

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9. Having considered the rival submissions, above noted facts

and circumstances of the case, without expressing any opinion on

the merits/demerits of the case, this Court is not inclined to

enlarge the petitioner on bail.

10. Accordingly, the bail application preferred by the petitioner

under Section 483 of BNSS (439 of Cr.P.C.) is rejected at this

stage.

(MUKESH RAJPUROHIT),J

Abhishek Kumar
S.S.No.1

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