Abhishek Kumar vs State Of Nct Of Delhi
- Court
- Delhi High Court
$~105
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of Decision: 04 November, 2026
# CNR No. DLHC010507752026
+ BAIL APPLN. 4485/2026
ABHISHEK KUMAR .....Petitioner
Through: Mr. Ranvir Singh Kundu, Mr. Vipin
Kumar Sharma, Ms. Krati Aggarwal
and Mr. Yogvardhan Singh Kundu,
Advs.
M: 9899827106
Email: [email protected]
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Nawal Kishore Jha, APP
M: 9968257999
Mr. Kaushlender Singh and Mr.
Neeraj Gahlourt, Advs. along with
complainant
M: 9811383912
W/SI Manisha, PS New Ashok Nagar
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
MINI PUSHKARNA, J. (Oral):
1. The present application has been filed on behalf of the petitioner, i.e.,
Abhishek Kumar, S/o Rajeev Kumar Chaudhary, under Section 482 read with
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”),
seeking anticipatory bail in connection with the First Information Report
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(“FIR”) being FIR No. 528/2026 dated 11 August, 2026, registered at Police
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Station (“PS”) New Ashok Nagar, East District, Delhi, under Sections
376/313 of the Indian Penale Code, 1860 (“IPC”).
2. Learned counsel appearing for the petitioner submits that pursuant to
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the interim protection granted by this Court vide order dated 16 October,
2026, the petitioner has joined the investigation and has already appeared
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before the Investigation Officer (“IO”) for interrogation on 19 October,
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2026, and 27 October, 2026.
3. As regards the relationship between the petitioner and the complainant,
he informs this Court that the parties were in a consensual relationship and
lived together from the year 2022 till May, 2026, spanning a period of more
than four years.
4. He submits that the relationship between the parties was voluntary and
consensual and there was no force, coercion, threat or undue influence.
5. He further submits that the relationship between the parties eventually
deteriorated owing to temperamental differences, on account of which the
parties stopped living together, and the petitioner shifted back to his native
place located in Bihar.
6. The aforesaid submissions made by learned counsel appearing for the
petitioner are taken note of.
7. Learned Additional Public Prosecutor (“APP”) appearing for the State
confirms the fact that the petitioner has already joined the investigation. He,
however, submits that a potency test of the petitioner is yet to be done.
8. He informs this Court that there is an allegation made by the
complainant that the petitioner gave her a medicine by representing it to be
for pain, but she subsequently suffered a miscarriage as she was pregnant with
the child of the petitioner.
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9. He submits that the source of the said medicine and other information
is yet to be verified, and the petitioner is yet to be interrogated in this regard.
10. He further submits that as per the complaint submitted by the
complainant, her health deteriorated after taking the aforesaid medicine, and
she was admitted to Max Hospital, Ghaziabad, where her pregnancy was
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terminated against her wishes on 31 March, 2023.
11. Furthermore, as per the allegations made by the complainant, the
petitioner refused to marry her when she asked him to do so, following which
she submitted the complaint.
12. Learned counsel appearing for the complainant submits that the
petitioner and the complainant had established physical relations on the basis
of the promise of the petitioner to marry the complainant.
13. Having heard learned counsel appearing for the parties, this Court notes
that the petitioner has already joined the investigation.
14. This Court further notes that the complainant had earlier written a letter
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dated 05 June, 2026, to the Station House Officer (“SHO”), PS Ashok Nagar,
wherein she had stated that she was in a relationship with the petitioner, and
that she had called the police because she had a fight and an argument with
the petitioner. She further admitted that she was pregnant on account of her
relationship with the petitioner. However, nothing is mentioned regarding any
false promise to marry, rather, it is apparent that the parties were in a
consensual relationship with each other.
15. In this regard, fruitful reference may be made to the judgment of the
Supreme Court in the case of Samadhan Versus State of Maharashtra and
Another, 2025 SCC OnLine SC 2528 , wherein, it has been held as follows:
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“xxx xxx xxx
27. In this regard, it becomes relevant to refer to the decision of
this Court in the case of Mahesh Damu Khare v. State of
Maharashtra, (2024) 11 SCC 398, (“Mahesh Damu”) wherein
the following observations were made :
“27. In our view, if a man is accused of having sexual
relationship by making a false promise of marriage and if
he is to be held criminally liable, any such physical
relationship must be traceable directly to the false promise
made and not qualified by other circumstances or
consideration. A woman may have reasons to have physical
relationship other than the promise of marriage made by
the man, such as personal liking for the male partner
without insisting upon formal marital ties .
28. Thus, in a situation where physical relationship is
maintained for a prolonged period knowingly by the
woman, it cannot be said with certainty that the said
physical relationship was purely because of the alleged
promise made by the appellant to marry her. Thus, unless
it can be shown that the physical relationship was purely
because of the promise of marriage, thereby having a direct
nexus with the physical relationship without being
influenced by any other consideration, it cannot be said
that there was vitiation of consent under misconception of
fact .”
28. We find that the present case is not a case where the
appellant lured respondent No. 2 solely for physical pleasures
and then vanished. The relationship continued for a period of
three long years, which is a considerable period of time. They
remained close and emotionally involved. In such cases,
physical intimacy that occurred during the course of a
functioning relationship cannot be retrospectively branded as
instances of offence of rape merely because the relationship
failed to culminate in marriage .
29. This Court has, on numerous occasions, taken note of the
disquieting tendency wherein failed or broken relationships are
given the colour of criminality. The offence of rape, being of the
gravest kind, must be invoked only in cases where there exists
genuine sexual violence, coercion, or absence of free consent .
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To convert every sour relationship into an offence of rape not
only trivialises the seriousness of the offence but also inflicts
upon the accused indelible stigma and grave injustice. Such
instances transcend the realm of mere personal discord. The
misuse of the criminal justice machinery in this regard is a
matter of profound concern and calls for condemnation .
30. In Prashant v. State of NCT of Delhi, (2025) 5 SCC 764, this
Court speaking through one of us (Nagarathna, J.) observed
that a mere break-up of a relationship between a consenting
couple cannot result in the initiation of criminal proceedings.
What was a consensual relationship between the parties at the
initial stages cannot be given a colour of criminality when the
said relationship does not fructify into a marriage . The relevant
portion is extracted as under:
“20. In our view, taking the allegations in the FIR and the
charge-sheet as they stand, the crucial ingredients of the
offence under Section 376(2)(n)IPC are absent. A review of
the FIR and the complainant's statement under Section
164CrPC discloses no indication that any promise of
marriage was extended at the outset of their relationship in
2017. Therefore, even if the prosecution's case is accepted
at its face value, it cannot be concluded that the
complainant engaged in a sexual relationship with the
appellant solely on account of any assurance of marriage
from the appellant. The relationship between the parties
was cordial and also consensual in nature. A mere break
up of a relationship between a consenting couple cannot
result in initiation of criminal proceedings. What was a
consensual relationship between the parties at the initial
stages cannot be given a colour of criminality when the
said relationship does not fructify into a marital
relationship . Further, both parties are now married to
someone else and have moved on in their respective lives.
Thus, in our view, the continuation of the prosecution in the
present case would amount to a gross abuse of the process
of law. Therefore, no purpose would be served by continuing
the prosecution.”
31. This Court is conscious of the societal context in which, in a
country such as ours, the institution of marriage holds deep social
and cultural significance. It is, therefore, not uncommon for a
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woman to repose complete faith in her partner and to consent to
physical intimacy on the assurance that such a relationship would
culminate in a lawful and socially recognised marriage. In such
circumstances, the promise of marriage becomes the very
foundation of her consent, rendering it conditional rather than
absolute. It is, thus, conceivable that such consent may stand
vitiated where it is established that the promise of marriage was
illusory, made in bad faith, and with no genuine intention of
fulfilment, solely to exploit the woman. The law must remain
sensitive to such genuine cases where trust has been breached and
dignity violated, lest the protective scope of Section 376 of the IPC
be reduced to a mere formality for those truly aggrieved. At the
same time, the invocation of this principle must rest upon credible
evidence and concrete facts, and not on unsubstantiated
allegations or moral conjecture.
xxx xxx xxx”
(Emphasis Supplied)
16. Accordingly, considering the aforesaid judgment and on the basis of
the material placed before this Court, it is prima facie established that the
petitioner and the complainant lived together for more than four years. This
is consistent with the possibility of a physical relationship taking place
without a promise of marriage. Furthermore, as regards the physical
relationship between the parties being based on a false promise to marry, the
same is a subject matter of trial.
17. The other issues concerning the administration of any medicine to the
complainant, in respect of which the petitioner is to be interrogated, form the
subject matter of investigation and trial as well.
18. In relation to the remaining interrogation of the petitioner to be
conducted on different aspects of the complaint, this Court records the
undertaking made by learned counsel appearing for the petitioner that the
petitioner shall cooperate in the investigation being carried out by the
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concerned IO/SHO, and shall appear before the IO/SHO, as and when so
called, including for any test which the police may ask the petitioner to take.
19. This Court notes that the petitioner has shared his mobile number as
well as the mobile number of his father with the concerned IO.
20. This Court also takes note of the fact that while the complainant is
residing in Delhi, the petitioner has already shifted back to his native place
located in Begusarai, Bihar.
21. It is also to be noted that the petitioner has no prior criminal
antecedents.
22. For the reasons stated above, it is directed that in the event of arrest of
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the petitioner in connection with FIR No. 528/2026 dated 11 August, 2026,
registered at PS New Ashok Nagar, East District, Delhi, under Sections
376/313 of the IPC, the petitioner shall be released on bail, subject to
furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the
like amount, subject to the satisfaction of the IO/SHO, and further subject to
the following conditions:
I. The petitioner will report to the IO on each and every occasion, as
required by the IO, and will cooperate in the investigation.
II. The petitioner shall not, directly or indirectly, attempt to contact the
complainant or her family, or tamper with the evidence, or otherwise
indulge in any act or omission that is unlawful or prejudicial to the
proceedings, nor shall he offer any inducement, threat, or promise to
any person acquainted with the facts of the case.
III. The petitioner shall furnish his mobile number to the concerned IO and
shall keep the said mobile phone operational and switched on at all
times. The mobile number shall not be changed or switched off without
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prior intimation to the IO.
IV. The petitioner shall furnish his complete residential address to the IO,
and will not change his residential address without prior intimation to
the IO.
V. The petitioner shall not commit any offence during the pendency of
these proceedings.
23. It is clarified that the observations made herein are solely for the
purpose of adjudication of the present application and shall not be construed
as an expression of opinion on the merits of the case, nor shall they prejudice
the rights and contentions of the parties at any stage of the proceedings.
24. Accordingly, the present application is disposed of, in the aforesaid
terms.
MINI PUSHKARNA, J
NOVEMBER 4, 2026/KR
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By:HARIOM SHARMA
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