Gautam Diwakar vs State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 482 BNSS No.
- 10661 of 2026
Gautam Diwakar
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Satya Prakash Chaturvedi
Counsel for Opposite Party(s) : G.A.
Court No. - 71
HON'BLE VIVEK KUMAR SINGH, J.
1. Heard learned counsel for the applicant and learned A.G.A for the State
and perused the record.
2. The present application has been filed on behalf of the applicant in
Case Crime No. 9 of 2026, under Sections 69, 352, 351(3) BNS, Police
Station Kotwali Konch, District Jalaun with a prayer to grant him
anticipatory bail.
3. Learned counsel for the applicant submits that the applicant is
absolutely innocent and has been falsely implicated in the present case; he
has nothing to do with the alleged offence in spite of that the police are
trying to arrest the applicant. It is further contended by the learned
counsel that a false and frivolous first information report was lodged by
the informant-victim, wherein she alleged that she was subjected to rape
on the false promise of marriage. It is admitted case of the victim that she
was a major girl, about 24 years of age and that she had been in touch
with the applicant for the last three years and during this period they

enjoyed a consensual relationship. It is next submitted that the FIR is a
result of broken relationship and the same was lodged when the
relationship turned sour between them. The version of the victim kept
changing and does not inspire much confidence to prosecution case. The
victim refused to get herself medically examined. The arrest of the
applicant was stayed by a Division Bench of this Court vide order dated
11.2.2026 in Criminal Misc. Writ Petition No. 2373 of 2026. Now, the

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2
charge-sheet has been submitted and the court concerned has taken
cognizance of the offence vide order dated 15.4.2026. Since the applicant
was not arrested during the course of investigation, therefore, there is no
requirement of custodial interrogation of the applicant. The applicant has
no criminal antecedent to his credit.
4. Further submission was made by the learned counsel that ocular
version is not corroborated with medical evidence. It is also submitted
that throughout the prolonged period of three years, the victim kept
completely quite about the alleged sexual abuse, meted out to her, by the
applicant until she learnt that the applicant was not going to marry her.
Additionally, the long gap of three years between the first alleged act of
sexual intercourse and continued relationship for three years, till the filing
of the first information report makes it clear that the matter pertains to a
lave affair. When the relationship turned sour, the FIR was lodged by the
victim due to ulterior motives. A case of consensual relationship between

two adults have been converted into a criminal offence.
5. Learned counsel for the applicant further submits that the applicant
undertakes to cooperate during investigation and trial and shall appear as
and when required by the Investigating Agency or the Court concerned. It
has also been stated that, in case the applicant is granted anticipatory
bail, he shall not misuse the liberty of bail, shall cooperate with the
investigation, and shall abide by all the conditions that may be imposed
by the Court.
6. On the other hand, learned A.G.A. has opposed the application for
anticipatory bail, however, he does not dispute the factual aspect.
7. I have heard the rival submissions of both sides and perused the
record.
8. In Aman Preet Singh v. CBI, (2022) 13 SCC 764, the Hon'ble Apex
Court has held that :
"11. A reading of the aforesaid shows that it is the guiding principle for a
Magistrate while exercising powers under Section 170CrPC which had
been set out. The Magistrate or the Court empowered to take cognizance

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3
or try the accused has to accept the charge-sheet forthwith and proceed
in accordance with the procedure laid down under Section 173CrPC. It
has been rightly observed that in such a case the Magistrate or the Court
is required to invariably issue a process of summons and not warrant of
arrest. In case he seeks to exercise the discretion of issuing warrants of
arrest, he is required to record the reasons as contemplated under
Section 87 Cr.P.C that the accused has either been absconding or shall
not obey the summons or has refused to appear despite proof of due
service of summons upon him. In fact the observations in sub-para (iii)
above by the High Court are in the nature of caution.
12. In sofar as the present case is concerned and the general principles
under Section 170Cr.P.C, the most apposite observations are in sub-para
(v) of the High Court judgment in the context of an accused in a non-
bailable offence whose custody was not required during the period of
investigation. In such a scenario, it is appropriate that the accused is
released on bail as the circumstances of his having not been arrested
during investigation or not being produced in custody are itself sufficient
to entitle him to be released on bail. The rationale has been succinctly set
out that if a person has been enlarged and free for many years and has
not even been arrested during investigation, to suddenly direct his arrest
and to be incarcerated merely because charge-sheet has been filed would
be contrary to the governing principles for grant of bail. We could not
agree more with this."
9. In the case of Mahesh Damu Khare Versus State of Maharashtra
the Hon'ble
and Another, (2024) 11 Supreme Court Cases 398,
Supreme Court has made observation that 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 of marriage. A woman may have reasons to have
physical relationship other than the promise of marriage like, personal
liking for the male partner.
10. In case of Prashant Versus State of NCT of Delhi, (2025) 5
, the Hon'ble Supreme Court has observed that
Supreme Court Cases 764
it is inconceivable that the complainant would continue to meet the

NABAIL No. 10661 of 2026
4
accused or maintain a prolonged association or physical relationship with
him in the absence of voluntary consent on her part.
11. Furthermore, the Hon'ble Supreme Court in the case of
Samadhan
Versus State of Maharashtra and Another, 2025 SCC OnLine SC
observed that on numerous occasions, taken note of the disquieting
2528
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. 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 for the judiciary already facing a heavy load and calls for
condemnation.
12. The Hon'ble Supreme Court in Rajnish Singh @ Soni Vs. State of
held that where a woman
U.P. And Another, 2025 (4) SCC 197
willingly engages in a long-term relationship with a man, fully aware of
its nature, and there is no cogent evidence to show that such relationship
was induced by a misconception of fact or a false promise of marriage
made in bad faith from the inception, the man cannot be held guilty of
rape under Section 376 of the IPC.
13. In the case of
Pramod Kumar Navratna Versus State of
Chhattisgarh and Others, 2026 SCC OnLine SC 154 , the Hon'ble
Supreme Court held that the Courts have to be extremely careful and
cautious in identifying the genuine cases filed under Section 376(2)(n) of
the IPC by identifying the essential ingredients to constitute the said
offence. Such genuine cases must be clearly demarcated from the
litigation that arises from the cases of consensual relationships between
consenting adults going acrimonious on account of dispute and
disagreement or a future change of mind.
14. The Hon'ble Supreme Court in the case of Ravish Singh Rana
has
Versus State of Uttarakhand & Anr., 2025 SCC OnLine SC 1055

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made observation that the two able minded adults, if maintained a long
term physical relations, then the presumption would arise that they have
voluntarily chose the consensual relationship and subsequent non-
fulfillment of promise of marriage would not attract any offence.
15. The Hon'ble Supreme Court in the case of
Pramod Suryabhan
Pawar Versus State of Maharashtra And Another, (2019) 9 Supreme
held that where the promise to marry is false and the
Court Cases 608
intention of the maker, at the time of making the promise, itself was not to
abide by it, but to deceive the woman so as to convince her to engage in
sexual relations, there is a "misconception of fact" that vitiates the
woman's "consent". However, mere breach of a promise cannot be said to
be a false promise. Therefore, to establish a false promise, it would have
to be demonstrated that the maker of the promise had no intention of
upholding his word at the time of making the promise.
16. In
Sonu @ Subhash Kumar Vs. State of Uttar Pradesh and
Another, (2021) 18 SCC 517 , the Hon'ble Supreme Court quashed the
FIR and the proceedings upon noticing that relationship between the
accused and the victim was of consensual nature and parties were in
relationship for a period of one and a half years, and subsequently the
accused had expressed disinclination to marry the prosecutrix which led
to registration of FIR.
17. Considering the settled principle of law regarding anticipatory bail,
submissions of the learned counsel for the parties, nature of accusation,
role of applicant and all attending facts and circumstances of the case,
without expressing any opinion on merits, and the case of the applicant is
squarely covered by the aforesaid judgments, a case for anticipatory bail
is made out.
18. Accordingly, the anticipatory bail application is allowed with
following directions:-
(i) In the event of arrest/appearance of the applicant- Gautam Diwakar
involved in aforesaid case shall be released on anticipatory bail till the
conclusion of trial, on his furnishing a personal bond of Rs.50,000/- with
two sureties each of the like amount to the satisfaction of the court

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concerned;
(ii) The applicant shall co-operate during trial and shall report to the court
concerned as and when required for the purpose of fair trial.
(iii) The applicant shall not, directly or indirectly, make any inducement,
threat or promise to any person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the Court; and
(iv) The applicant shall not leave India without the previous permission of
the Court.
19. In default or misuse of any of the conditions, the Public Prosecutor/
Investigating Officer/ first informant-complainant is at liberty to file
appropriate application for cancellation of anticipatory bail granted to the
applicant, before the concerned court.
(Vivek Kumar Singh,J.)
October 16, 2026
Lalit Shukla
Digitally signed by :-
LALIT KUMAR SHUKLA
High Court of Judicature at Allahabad