“Cryptic & Bereft Of Reasons”: J&K&L High Court Sets Aside Order Granting Bail In Rape Case Over False Promise Of Marriage

The Court was hearing a petition filed by the complainant/victim under Section 483(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the bail order dated 03.08.2024 passed by the Additional Sessions Judge, Fast Track Court, Budgam, in FIR No. 272/2023. By the impugned order, the accused/respondent, who had earlier been granted interim bail on 16.12.2023, was enlarged on regular bail by making the interim bail absolute.

A Bench of Justice Sanjay Parihar, while allowing the petition, observed that “the impugned order dated 03.08.2024 passed by the Trial Court granting bail to the respondent cannot be sustained in the eyes of law”, and directed the accused to surrender forthwith.

It added,

“.. Where the order granting bail is found to be perverse, cryptic, or passed in disregard of material evidence and settled principles of law, the mere fact that the trial has commenced cannot be a ground to sustain such an order”

Background:

The petitioner/victim alleged that the accused/respondent, who was her neighbour, persistently followed her and attempted to establish contact. The respondent allegedly represented himself as a well-settled individual employed in a reputed company and extended a false proposal of marriage. Relying upon such representations, the victim developed trust and consented to a relationship, which resulted in repeated sexual encounters over a period of time.

It was further alleged that during the subsistence of the relationship, the respondent clandestinely recorded intimate acts without the victim's knowledge or consent. When confronted, he assured her that the videos would be deleted. However, the victim later discovered that the respondent had recorded numerous such videos not only with her but also depicting sexual acts with several other women, stored in his laptop. Upon confrontation, the respondent threatened to upload the videos on social media.

The victim lodged a complaint leading to registration of FIR and the arrest of the respondent. Forensic examination of seized electronic devices revealed multiple recorded instances involving different women. Two such victims came forward to support the prosecution and were examined under Section 161/164 Cr.P.C.

The accused was initially granted interim bail by the trial court. That order was challenged before the High Court, which directed the trial court to decide the bail application expeditiously. Pursuant thereto, the trial court made the interim bail absolute. The victim then approached the High Court under Section 483(2) BNSS.

Court's Observations:

The High Court noted that at the time of consideration of the bail application, formal charges had not yet been framed, though the victim's statement under Section 164 Cr.P.C. had been recorded, furnishing a detailed account of how she was allegedly induced into sexual relations. The accused was subsequently formally charged on 29.07.2024.

The Court reiterated the principles governing grant of bail in serious offences, referring to Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528, Masroor v. State of Uttar Pradesh (2009) 14 SCC 286 and noted that an order granting bail, if found to be arbitrary, perverse, or bereft of reasons, is always amenable to interference by a superior court, as reiterated in Ajwar v. Waseem (2024) 10 SCC 768.

Relying upon the recent Supreme Court judgment reported as 2025 INSC 877, the Court observed,

“In cases involving grave offences, the grant of bail must be supported by cogent reasons and a thorough appreciation of the material on record, failing which the order suffers from perversity and is liable to be set aside.”

Examining the impugned order, the Court held,

“A perusal of the impugned order reveals that the Trial Court has failed to advert to the material aspects of the case, particularly the detailed statement of the victim recorded under Section 164 Cr.P.C., the nature of allegations involving inducement on the false promise of marriage, and the serious accusations of exploitation coupled with blackmail through electronic means. The order, being cryptic in nature, does not reflect due application of mind to the gravity of the offence or the manner in which the alleged crime has been committed.”

The Court further found that the allegations disclosed a systematic pattern of conduct, evident from the recovery of electronic devices and forensic material indicating similar acts with other victims. “These crucial aspects, which go to the root of the matter, have not been duly considered by the Trial Court while granting bail,” the Court observed.

Addressing the respondent's contention of a consensual relationship, the Court held,

“The concept of 'consent' in law cannot be examined in a vacuum, especially where the allegations, prima facie, disclose that such consent was obtained on the basis of deception or misconception of fact. The statement of the victim recorded under Section 164 Cr.P.C., coupled with the surrounding circumstances brought on record, indicates that the respondent had allegedly induced the victim into the relationship on the false promise of marriage, which, if established, would vitiate the consent in terms of settled legal principles.”

The Court clarified that at the stage of bail, it is sufficient if the material on record discloses a prima facie case, and that the plea of consensual relationship raises disputed questions of fact to be adjudicated during trial.

Rejecting the argument that trial was already underway and the accused should not be remanded, the Court observed,

“When a person accused of a grave and heinous offence is enlarged on bail without due application of mind, it not only undermines the confidence of the victim but also shocks the conscience of the Court and has a deleterious impact on society at large.”

In alignment with these observations the Court allowed the petition, set aside the bail order and withdrew the bail granted to the respondent. The accused was directed to surrender before the trial court forthwith.

The Court clarified that the observations were confined to the adjudication of the present petition and shall not be construed as an expression on the merits of the case during trial. The accused was granted liberty to renew his prayer for bail after material witnesses are examined during trial.

Case Title: XXX v. Afaq Ali Khan

Citation: 2026 LiveLaw (JKL)

Appearances

Petitioner: Ms. Ayshia Zaheer, Advocate

Respondent: Mr. Shariq Riyaz Jan, Advocate; Mr. Bikram Deep Singh, Dy. AG for State

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