Justice Sanjay Dhar made the observation while granting anticipatory bail to a Police Sub-Inspector who apprehended arrest in an FIR registered at Police Station Samba under Sections 69, 83, 88 and 115(2) of the Bharatiya Nyaya Sanhita, 2023.

The Court, however, clarified that its observations were confined to the consideration of the bail application and that it would be premature to deeply analyse the material collected by the investigating agency.

According to the prosecution case, the prosecutrix, a lady constable, came into contact with the petitioner in September 2024 when both were posted at Police Station Samba.

She alleged that the petitioner proposed marriage to her and, on the basis of repeated assurances, they entered into a live-in relationship and lived together as husband and wife for several months. She further alleged that she became pregnant twice during the relationship and that the petitioner persuaded her to terminate both pregnancies by assuring her that they would marry.

The prosecutrix subsequently discovered that the petitioner was already married. According to her, despite this disclosure, he continued assuring her that he did not wish to live with his wife and would marry her. She alleged that he repeatedly postponed the marriage and continued the physical and emotional relationship.

She further alleged that she became pregnant for the third time and that the petitioner blocked her after she informed him about the pregnancy.

Before registration of the FIR, the complaint led to a fact-finding inquiry by the Additional SP, Samba. The Inquiry Officer recommended a detailed investigation, observing that the petitioner, despite being a married person, had allegedly duped the prosecutrix on assurances and promises of marriage. The FIR was thereafter registered.

Before approaching the High Court, the petitioner had moved the Principal Sessions Judge, Samba, seeking anticipatory bail. The Sessions Court dismissed the application observing that the material on record suggested that the petitioner had repeatedly promised marriage but failed to fulfil those promises and had allegedly obtained sexual favours on the assurance that he would marry the prosecutrix.

The petitioner challenged that approach before the High Court, arguing that the FIR itself disclosed a prolonged consensual relationship between two adults and that there was insufficient material to establish that his promise of marriage had vitiated the prosecutrix's consent.

Gravity Of Offence Alone Not Sufficient; Prima Facie Genuineness Also Relevant

Justice Dhar referred to the Constitution Bench judgments in Gurbaksh Singh Sibbia v. State of Punjab and Sushila Aggarwal v. State (NCT of Delhi) on the principles governing anticipatory bail.

The Court noted that although the gravity and severity of the alleged offences are important considerations, “a prima facie view of the genuineness of the charge against the accused is a factor which is always required to be considered.”

The Court then examined the chronology of the relationship. It noted that initially the prosecutrix was unaware of the petitioner's marital status. However, after she came to know that he was already married and had two children, she nevertheless continued the relationship with him, conceived for a third time and, according to the material before the Court, entered into a marriage ceremony with him despite knowing that his existing marriage rendered the subsequent marriage legally invalid.

The Court found this subsequent conduct significant for the limited purpose of bail. It observed that the prosecutrix had continued the relationship despite knowing the petitioner's marital status and despite being aware that his wife and family were opposed to his divorcing his wife. The Court held,

“From these circumstances, it can prima facie be inferred that her relationship with the petitioner was consensual in nature.”

It added,

“…Although initially she may not have been aware of the marital status of the petitioner, her subsequent conduct of continuing the relationship with him despite knowing his marital status gives rise to an inference that her relationship with the petitioner was not based upon a misconception of fact”

The High Court considered the Supreme Court's decision in Mahesh Danu Khare v. State of Maharashtra, (2024) 11 SCC 398, concerning the distinction between a genuine promise to marry that is subsequently not fulfilled and a false promise made from the very beginning with an intention to deceive.

The Supreme Court, as reproduced in the judgment, had observed that where a promise to marry was not made from the very beginning with an ulterior motive to deceive, mere subsequent failure to fulfil the promise would not necessarily attract criminal liability.

Applying those principles at the bail stage, Justice Dhar observed that the petitioner and prosecutrix had lived together for more than a year and that she had conceived three times during the relationship. The Court noted that she continued the relationship even after learning that the petitioner was married and had two children.

Court Finds 'Genuine Doubt' Requiring Investigation

The Court nevertheless stopped short of making any final finding on the allegations. It observed that the material on record suggested that the petitioner and prosecutrix were deeply in love with each other, while emphasising that it did not wish to comment upon the merits of the prosecutrix's allegations.

Justice Dhar held that her continued relationship with the petitioner despite knowing his marital status “creates a genuine doubt” regarding the allegation that her consent had been obtained on a false promise of marriage. Whether the ingredients of cheating were ultimately made out, the Court said, was an issue for the investigating agency to address during investigation.

The Court also considered the State's contention that the petitioner was absconding and not cooperating with the investigation. Justice Dhar noted that the petitioner had appeared before the Inquiry Officer and answered the questionnaire served upon him. The police department had also not claimed that he had stopped attending his duties.

Since the petitioner remained a serving police employee and was subject to both the investigative and disciplinary control of the department, the Court held that the possibility of his absconding was minimal, the bench opined.

The High Court accordingly allowed the bail application and directed that the petitioner be released on bail in the event of his arrest.

Case Title: Vikrant Kotwal v. UT of J&K & Anr.

Citation: 2026 LiveLaw (JKL) 326

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