Akshay Aditya vs The State Of Nct Of Delhi And Anr
- Court
- Delhi High Court
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Judgment pronounced on: 30.10.2026
# CNR No.DLHC010380362026
BAIL APPLN. 3355/2026
+
AKSHAY ADITYA .....Petitioner
Through: Mr. Mohit Mathur (Sr. Adv) along
with Ms. Vidha Datta Makhija (Sr.
Adv) and Mr. Sanjeev Kumar
Sharma, Mr. Girish Kumar, Mr.
Anirudh Sharma, Mr. Aditya Kumar,
Mr. Varun Kesharwani, Mr. Kishlay
Kumar, Mr. Aman Mishra, Mr. Rajiv
Dalal, Advs.
versus
THE STATE OF NCT OF DELHI AND ANR .....Respondents
Through: Mr. Hemant Mehla (APP) along with
Mr. Mayank Chaudhary, Mr. Mohd.
Naved, Advs.
Ms. Warisha Farasat (Sr. Adv) along
with Mr. Akash Mohan Srivastav,
Ms. Suvarna, Mr. Nandlal Singh,
Advs. for Respondent No.2.
SHO Pankaj Kumar &SI Sikander
(P.S. Hazrat Nizamuddin).
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
JUDGMENT
(Exemption)
Crl.M.A. 25093/2026
(Exemption)
Crl.M.A. 25094/2026
Crl.M.A. 28816/2026 (Exemption)
Crl.M.A. 28817/2026 (Exemption)
1. The present applications seek exemption from filing certified, legible
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copies of the annexures; permission to file lengthy synopsis; and leave to
place on record documents relating to the subsequent developments in the
present matter.
2. The said applications are allowed, subject to all just exceptions.
3. The additional documents are taken on record.
BAIL APPLN. 3355/2026 & Crl.M.A. 25092/2026
Crl.M.A. 30416/2026 (filed on behalf of R-1 seeking vacation of interim
protection granted to the applicant vide order dated 17.08.2026)
4. The present application has been filed under Section 482 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as
“BNSS”) seeking anticipatory bail, in connection with FIR No. 0164/2026
dated 29.07.2026, under Sections 64(1)/69/351(2)/115(2) of the Bharatiya
Nyaya Sanhita, 2023 (hereinafter referred to as “BNS”), registered at P.S.
Hazarat Nizamuddin. Section 64(2)(m) of the BNS has since been added on
the basis of the material collected during the investigation.
5. By way of Crl.M.A. 30416/2026, the State seeks vacation of interim
protection granted to the applicant vide order dated 17.08.2026 passed in the
present proceedings.
Prosecution Case
6. The complainant is an adult. She states that the applicant, a post-
graduate student, pursuing his Masters in surgery from Patna Medical
College Hospital contacted her through Instagram in the first week of
November, 2025 and repeatedly represented that he would marry her.
7. Her complaint specifically refers to the incidents on the following
dates: (i) on 21.12.2025, a hotel in Vaishali, Ghaziabad (the room having
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been booked by the complainant for the applicant’s stay), he assured her that
he genuinely intended to marry the complainant and that the marriage would
be solemnized with the consent of both the families. On the said date,
despite her clear resistance and against her will, the applicant is stated to
have forcibly established physical relations with the complainant;
(ii) on 08.03.2026, after meeting her at Sunder Nursery, New
Delhi, the applicant is stated to have taken the complainant, on the pretext of
introducing her to his friends, to a secluded house nearby, where he
restrained and overpowered her and forcibly committed sexual intercourse
against her will and without her consent. Thereafter, he repeatedly banged
his head against the wall and said that “kisiko mat batana nahin to main mar
jaunga” . He then insisted her to take an injection, which she refused to, and
thereafter, he snatched her mobile phone to prevent her from contacting her
family members. It is further alleged that on 10.03.2026, the applicant
retracted from his promise of marriage and attempted to terminate the
relationship, and thereafter threatened to commit suicide if she disclosed the
incident to anyone;
(iii) on 11.04.2026, at the same hotel at Vaishali, Ghaziabad, the
applicant attempted to compel the complainant to consume an unknown
tablet and, upon her refusal, pressurised her to consume alcohol, and
attempted to establish physical relations against her wishes. The
complainant became emotional and distressed, started crying and warned
him that she would immediately inform her family members if he did not
stop. She also called her elder sister; however, the applicant forcibly
prevented her from speaking further and became aggressive and violent. He
broke a glass bottle inside the hotel room and repeatedly threatened that he
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would end his life if she disclosed the incidents to anyone or insisted upon
marriage; and
(iv) on 03.06.2026, during her visit to Patna he again assaulted her,
voluntarily caused injuries and forcibly established physical relations against
her will. He also criminally intimidated her and threatened her with serious
consequences if she disclosed the incidents or remained in Patna.
8. The FIR further states that the applicant, thereafter, continued to send
her messages and make video calls, threatening self-harm (on one occasion,
showing her, during a video call, blood flowing from his wrist) to dissuade
her from going to the police, and that after she disclosed the matter, the
members of his family, including his father and his paternal uncle,
pressurised and threatened her and her family (on 04.06.2026, 17.06.2026,
25.06.2026 and 11.07.2026).
9. The complainant’s statement under Section 183 of BNSS has been
recorded before the learned Magistrate, wherein, as per the Status Report
dated 14.09.2026, she has supported the version in her complaint. She was
also medically examined vide MLC No. 4632/2026, though she declined
internal examination. The complainant, thus, alleges that the relationship
was induced by a promise of marriage which the applicant did not intend to
keep.
10. Importantly, it is specifically alleged that sexual intercourse took
place by force, as noticed hereinabove. The FIR, accordingly, invokes both
Section 64 of the BNS, which punishes rape, and Section 69 of the BNS,
which punishes sexual intercourse by deceitful means or upon a promise to
marry made without any intention of fulfilling the same.
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Previous Orders
11. The applicant was taken into custody at Patna (at Patna Medical
College Hospital) on 30.07.2026. The learned Chief Judicial Magistrate,
Patna, by way of an order passed on the same day, declined transit remand
on procedural grounds, inter alia , (i) the absence of a warrant of arrest or
written delegation memo under Section 55 of BNSS; and (ii) non- supply of
written grounds of arrest, and (iii) absence of an updated Case Diary. Vide
the said order dated 30.07.2026, the applicant was released subject to him
furnishing a personal bond of Rs.10,000/-, along with an undertaking to join
investigation before the I.O. at P.S. Hazarat Nizamuddin, Delhi within 30
days, or to appear before the Court of competent jurisdiction at Delhi as and
when directed.
12. The order dated 30.07.2026, passed by the learned Chief Judicial
Magistrate, Patna, inter alia , reads as under:
13. The petitioner’s application for anticipatory bail (in Bail Matter No.
2382/2026) was dismissed vide order dated 10.08.2026 passed by the
learned Additional Sessions Judge (Special Fast Track Court), South-East
District, Saket Courts, Delhi. The learned ASJ held that the Whatsapp chats
placed before him showed that the applicant “categorically admitted his fault
to the complainant”; the chats, prima facie , showed “falsity of the defence
taken by the applicant”; that he induced her into a relationship by projecting
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marriage without intending it; and that the mobile phone is required for the
investigation. The said order, inter alia , observed as under:
“The facts and the documents placed in this case on record,
prima facie, disclose that allegations are serious in nature and if
anticipatory bail is granted, it may seriously prejudice the
investigation and the interest of justice. The contents of
complaint; whatsapp chats produced by the prosecutrix disclose
that applicant had projected the complainant that he was
intending to have a serious relationship with her. The whatsapp
chats between complainant and applicant further shows that
applicant was projecting to the complainant and showing her
picture of having children with her. The whatsapp chats between
applicant and complainant further shows prima facie falsity of
the defence taken by the applicant in this application whereby
he has shifted entire burden upon the complainant. The
whatsapp chats show that applicant categorically admitted his
fault to the complainant. The material on record produced by
the prosecution and complainant prima facie show that
applicant induced the prosecutrix for marriage without any
intent to keep said promise and thereafter, he entered into
physical relationship with her several times at various places
and thereafter, he resiled from the said promise. In this case,
admittedly, the prosecutrix and accused met several times at
various places and they were in touch with each other through
whatsapp chats and other social media platforms. Now in order
to ascertain the complete facts and to conduct proper
investigation, the custodial interrogation of applicant may be
required. Further custody of applicant may also be required for
purpose of collecting the digital and other evidence including
the mobile phone of applicant .
If applicant is granted bail at this
stage, possibility of him causing disappearance of evidence and
influencing of witnesses cannot be ruled out. The judgments
relied upon by the applicant are not applicable to the facts of the
present case as the facts of this case are totally different from the
facts mentioned in the judgments relied upon by the applicant.
Accordingly, the anticipatory bail is dismissed.”
14. Vide order dated 17.08.2026 passed in the present proceedings, this
Court called for a comprehensive reply from the State and directed the
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applicant to join investigation on 19.08.2026 with all his electronic devices,
and directed that, in the interregnum, “ no further coercive steps be taken
against the applicant till the next date of hearing ”. The applicant was also
restrained from contacting, directly or indirectly, the prosecutrix or her
family members. The said order, inter alia , reads as under:
15. Thereafter, the applicant is stated to have joined the investigation on
several occasions (according to the applicant, on 19.08.2026, 20.08.2026,
21.08.2026, 22.08.2026, 24.08.2026, 08.09.2026 and 10.09.2026).
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16. Subsequently, vide order dated 17.09.2026 passed in the present
proceedings, the matter was adjourned to 17.11.2026 and the interim orders
were directed to continue. Thereafter, the State has filed an application
[being Crl.M.A. 30416/2026] seeking vacation of the interim protection.
Status Report Filed By The State
17. Status Report dated 14.09.2026, filed by the State, records that, during
the interrogation, the applicant acknowledged his relationship and meeting
with the complainant on various occasions. The said Status Report, inter
alia, records as under:
18. The Status Report also refers to the information gathered on the basis
of the Call Detail Records (CDRs) of the parties, and states as under:
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19. The said Status Report further states as under:
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20. Crucially, as regards the electronic evidence, the Status Report
records that the applicant has stated that his earlier mobile phone had been
stolen on the evening of 04.06.2026, and that the Investigating Agency has
found circumstances indicating that he had deleted the Instagram
communications exchanged between the parties. The relevant paragraphs of
the Status Report read as under:
21. As regards the contents of the communications collected during
investigation, the Status Report further states as under:
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Submission On Behalf Of The Petitioner/ Applicant
22. Learned counsel for the petitioner submits that the relationship was
consensual and known to both the families, and that the applicant and the
complainant belonged to the same native place. It is submitted that the
complainant booked the hotel rooms in her own name and at her own
expense, and travelled to Patna twice (on 06.02.2026 and 03.06.2026) to
meet him. It is further pointed out that, in April, 2026, the complainant sent
a message to him setting out “three options”, namely, (i) to remain
exclusively with him for six months; (ii) to marry within six months; or (iii)
to remain with him permanently without marriage.
23. The petitioner controverts the allegation of forcible sexual
intercourse. It is further submitted that the petitioner insisted on marriage
only with the consent of both the families, a condition which the
complainant accepted from the start. It is submitted that a promise made in
good faith, which could not be fulfilled, is not a false promise. The
petitioner submits that his earlier phone was snatched from him in an assault
on the night of 04.06.2026 at about 11:00 P.M., by unknown persons who
threatened him with a knife, for which he was examined at Patna Medical
College Hospital, Patna ( vide MLC bearing ERS No. 5770).
24. For that purpose, the petitioner relies upon the following
certificate/document issued by the Patna Medical College Hospital
(Emergency patient):
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25. It is emphasised that the petitioner has joined the investigation on
several dates, answered all questions put to him, undergone medical/potency
examination, participated in the preparation of pointing-out memos, and
surrendered his present mobile phone (which has been seized).
26. It is stated that he also produced his other devices and furnished the
credentials of his Gmail and Instagram accounts to the Investigating Officer;
that the Instagram conversations were deleted much prior to the registration
of the FIR; and that the complainant has not produced her own mobile
phone, which would contain the complete record of the communications. It
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is, therefore, contended that custodial interrogation is not required.
27. It is further submitted that the FIR is a counter-blast to the
Informatory Petitions (Nos. 1926/2026 and 2024/2026) and Criminal
Complaint No. 6685/2026 filed by the applicant before the learned CJM,
Patna, Sadar, against the complainant and her family members, alleging
extortion, blackmail and coercion.
Submissions on Behalf of the State And The Complainant
28. Learned APP for the State and learned counsel for the respondent
no.2, submit that the present case is one of forcible sexual intercourse on
identified occasions, supported by the complainant’s statement under
Section 183 of BNSS and by independent records (CDRs /location and hotel
records) of the applicant’s presence with the complainant on the material
dates. Reliance is placed on certain messages sent by the applicant which are
alleged to be virtually in the nature of an admission of guilt. In this regard,
attention is drawn to the applicant’s messages where he speaks of having
“ruined it for us” and having “destroyed a family”. Specific attention is
drawn to the following messages:
*
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*
29. Learned APP for the State also emphasised the sudden disappearance
of the mobile device of the petitioner and the deletion of the Instagram
communications. It is submitted that the circumstances surrounding the
alleged loss of the earlier handset, the extent of the deletion and the
recoverability of the data are matters requiring custodial interrogation and
confrontation of the applicant with the material collected.
30. Reliance has been placed on Sumitha Pradeep v. Arun Kumar C.K . ,
(2022) 17 SCC 391 and P. Krishna Mohan Reddy v. State of Andhra
Pradesh , 2025 INSC 725, to contend that the mere fact that the applicant
has joined investigation does not entitle him to anticipatory bail.
31. In the application seeking vacation of interim protection, filed on
behalf of the State, it has been stated as under :
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REASONING AND CONCLUSION
32. The legal position is well-settled that grant of anticipatory bail is an
extraordinary privilege to be granted only in exceptional cases. In this
regard, reference may be made to the judgment of the Supreme Court in Jai
Prakash Singh vs. State of Bihar , (2012) 4 SCC 379, wherein, it has, inter
alia , been observed therein as under:
“ 13. There is no substantial difference between Sections 438 and 439
CrPC so far as appreciation of the case as to whether or not a bail is to
be granted, is concerned. However, neither anticipatory bail nor regular
bail can be granted as a matter of rule. The anticipatory bail being an
extraordinary privilege should be granted only in exceptional cases
.
The judicial discretion conferred upon the court has to be properly
exercised after proper application of mind to decide whether it is a fit
case for grant of anticipatory bail.
14. In State of M.P. v. Ram Kishna Balothia [(1995) 3 SCC 221 : 1995
SCC (Cri) 439 : AIR 1995 SC 1198] this Court considered the nature of
the right of anticipatory bail and observed as under : (SCC p. 226, para
7)
“7. … We find it difficult to accept the contention that Section
438 of the Code of Criminal Procedure is an integral part of
Article 21.
In the first place, there was no provision similar to
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Section 438 in the old Criminal Procedure Code. … Also
anticipatory bail cannot be granted as a matter of right. It is
essentially a statutory right conferred long after the coming into
force of the Constitution. It cannot be considered as an essential
ingredient of Article 21 of the Constitution. And its non-application
to a certain special category of offences cannot be considered as
violative of Article 21.”
15. While deciding the aforesaid cases, this Court referred to the 41st
Report of the Indian Law Commission dated 24-9-1969 recommending
the introduction of a provision for grant of anticipatory bail wherein it
has been observed that “power to grant anticipatory bail should be
exercised in very exceptional cases”
.
*
19. Parameters for grant of anticipatory bail in a serious offence are
required to be satisfied and further while granting such relief, the court
must record the reasons therefor. Anticipatory bail can be granted only
in exceptional circumstances where the court is prima facie of the view
that the applicant has falsely been enroped in the crime and would not
misuse his liberty
. ”
(emphasis supplied)
33. In Nikita Jagganath Shetty v. State of Maharashtra , 2025 SCC
OnLine SC 1489, the Supreme Court observed as under:
“ 18. This Court, in numerous judgments, has held that anticipatory bail
is an exceptional remedy and ought not to be granted in a routine
manner. There must exist strong reasons for extending indulgence of
this extraordinary remedy to a person accused of grave offences
. … ”
(emphasis supplied)
34. In P. Chidambaram vs. Directorate of Enforcement , (2019) 9 SCC
24, it was, inter alia , observed as under:
“ 69. Ordinarily, arrest is a part of procedure of the investigation to
secure not only the presence of the accused but several other purposes.
Power under Section 438 CrPC is an extraordinary power and the
same has to be exercised sparingly. The privilege of the pre-arrest bail
should be granted only in exceptional cases . The judicial discretion
conferred upon the court has to be properly exercised after application
of mind as to the nature and gravity of the accusation; possibility of the
applicant fleeing justice and other factors to decide whether it is a fit
case for grant of anticipatory bail. Grant of anticipatory bail to some
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extent interferes in the sphere of investigation of an offence and hence,
the court must be circumspect while exercising such power for grant of
anticipatory bail. Anticipatory bail is not to be granted as a matter of
rule and it has to be granted only when the court is convinced that
exceptional circumstances exist to resort to that extraordinary remedy
. ”
(emphasis supplied)
Custodial Interrogation
35. As noted above, it has been strongly contended by the applicant that
there is no need for his custodial interrogation, as he has joined the
investigation on several dates, answered all questions put to him, undergone
medical/potency examination, participated in the preparation of pointing-out
memos, and surrendered his present mobile phone (which has been seized).
With regard to this contention, it would be apposite to make a reference to
Sumitha Pradeep v. Arun Kumar C.K ., (2022) 17 SCC 391, wherein it has
been, inter alia , held as under:
“ 12. We are dealing with a matter wherein the original complainant
(appellant herein) has come before this Court praying that the
anticipatory bail granted by the High Court to the accused should be
cancelled. To put it in other words, the complainant says that the High
Court wrongly exercised its discretion while granting anticipatory bail to
the accused in a very serious crime like Pocso and, therefore, the order
passed by the High Court granting anticipatory bail to the accused
should be quashed and set aside. In many anticipatory bail matters, we
have noticed one common argument being canvassed that no custodial
interrogation is required and, therefore, anticipatory bail may be
granted. There appears to be a serious misconception of law that if no
case for custodial interrogation is made out by the prosecution, then
that alone would be a good ground to grant anticipatory bail . Custodial
interrogation can be one of the relevant aspects to be considered along
with other grounds while deciding an application seeking anticipatory
bail. There may be many cases in which the custodial interrogation of
the accused may not be required, but that does not mean that the prima
facie case against the accused should be ignored or overlooked and he
should be granted anticipatory bail. The first and foremost thing that
the court hearing an anticipatory bail application should consider is
the prima facie case put up against the accused. Thereafter, the nature
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of the offence should be looked into along with the severity of the
punishment. Custodial interrogation can be one of the grounds to
decline anticipatory bail. However, even if custodial interrogation is
not required or necessitated, by itself, cannot be a ground to grant
anticipatory bail.
”
(emphasis supplied)
36. The same principle has been recently reiterated by the apex Court in
P. Krishna Mohan Reddy v. State of Andhra Pradesh , 2025 INSC 725, in
the following terms:
“ 21. It was sought to be argued that the petitioners have already joined
the investigation and are fully cooperating with the investigating agency
and therefore, there is no need for custodial interrogation.
22. The petitioners might have been cooperating with the investigation
and they might have been interrogated also by the investigating agency
so far but, at the same time, we should not overlook the fact that by
grant of anticipatory bail, we may come in the way of the investigating
agency if at all it wants custodial interrogation
23. As held by this Court in Sumitha Pradeep vs. Arun Kumar C.K.
&Anr. reported in (2022) 17 SCC 391 that
.
it would be preposterous as a
proposition of law to say that if custodial interrogation is not required
that by itself is sufficient to grant anticipatory bail
. Even in cases where
custodial interrogation may not be required the court is obliged to
consider the entire case put up by the State, more particularly, the nature
of the offence, the punishment provided in law for such offence etc.
It is needless to say that for the purpose of custodial interrogation,
the investigating agency has to make out a prima facie case at the time
when remand is prayed for
24.
. Whether any case for police remand is made
out or not, it is for the Court concerned to look into. ”
(emphasis supplied)
37. As such, the Supreme Court has gone to the extent of saying that it
would be preposterous as a proposition of law to say that if custodial
interrogation is not required, that by itself is sufficient to grant anticipatory
bail.
38. In any event, the mere fact that an accused has joined investigation
pursuant to an interim order does not, by itself, foreclose a subsequent
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requirement for custodial interrogation, particularly where the investigation
thereafter throws up specific circumstances requiring confrontation and
recovery. Therefore, the prima facie case for the custodial interrogation as
put forth by the prosecution in the terms hereinabove cannot be lost sight of.
39. Furthermore, the legal position is well-settled that the custodial
interrogation is qualitatively more elicitation-oriented than questioning a
suspect in whose favour the interim directions have been issued. In this
regard, reference can be made to the following observations passed by the
Supreme Court in State v. Anil Sharma , (1997) 7 SCC 187:
“ 6.We find force in the submission of the CBI that custodial
interrogation is qualitatively more elicitation-oriented than questioning
a suspect who is well ensconced with a favourable order under Section
438 of the Code. In a case like this effective interrogation of a
suspected person is of tremendous advantage in disinterring many
useful informations and also materials which would have been
concealed. Success in such interrogation would elude if the suspected
person knows that he is well protected and insulated by a pre-arrest bail
order during the time he is interrogated. Very often interrogation in
such a condition would reduce to a mere ritual
. The argument that the
custodial interrogation is fraught with the danger of the person being
subjected to third-degree methods need not be countenanced, for, such
an argument can be advanced by all accused in all criminal cases. The
Court has to presume that responsible police officers would conduct
themselves in a responsible manner and that those entrusted with the task
of disinterring offences would not conduct themselves as offenders. ”
(emphasis supplied)
Nature and Gravity of Allegation
40. What weighs heavily with the Court is that the allegation in the FIR is
one of forcible sexual intercourse, against the will of the complainant, on
identified occasions (21.12.2025, 08.03.2026 and 03.06.2026), coupled with
an attempted act of the same kind on 11.04.2026, and not merely of sexual
intercourse induced by a false promise of marriage.
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41. The legal position is well-settled to the effect that consent is vitiated
by a promise of marriage only if the promise (i) was false when made; (ii)
was given in bad faith; (iii) was with no intention of being adhered to; and
(iv) bore a direct nexus to the woman’s decision to engage in the act. This
has been affirmed by the Supreme Court in Pramod Suryabhan Pawar v.
State of Maharashtra , (2019) 9 SCC 608.
42. The FIR records the specific version of the complainant that on three
of the enumerated dates (21.12.2025, 08.03.2026 and 03.06.2026), the
applicant overpowered the complainant and had sexual intercourse with her,
against her will.
43. It is further stated that he used threats of self-harm to silence the
complainant, and that an injection, an unknown tablet and alcohol were
sought to be pressed upon her in the course of these meetings. These
circumstances, if established, lend support to the complainant’s version that
her will was overborne. The core allegation, therefore, is that on identified
occasions sexual intercourse took place without her consent, which falls
squarely within Section 64 BNS.
44. Pertinently, where consent itself is denied on identified occasions, the
question whether the consent was procured by false promise does not arise.
To that effect, it must be noted that Section 69 of the BNS, which penalises
sexual intercourse procured by deceitful means or on a promise of marriage
made without any intention of fulfilling it, operates only where the
intercourse could not be ordinarily classified as rape under Section 64 of the
BNS. Section 69 of the BNS reads as follows:
“ Whoever, by deceitful means or by making promise to marry to a
woman without any intention of fulfilling the same, has sexual
intercourse with her, such sexual intercourse not amounting to the
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offence of rape
, shall be punished with imprisonment of either
description for a term which may extend to ten years and shall also be
liable to fine. ”
(emphasis supplied)
45. Accordingly, Section 69 of the BNS is a residual provision, which
operates only where the intercourse does not amount to rape. Its invocation
in the FIR, alongside Section 64 of the BNS, does not dilute the specific
allegation of forcible intercourse.
46. Furthermore, even if the applicant’s contention of a genuine and bona
fide promise of marriage, and of the consensual nature of the relationship,
were to be accepted, the fact remains that the complaint describes a
relationship which (on the complainant’s account) was induced by a promise
of marriage, and within which forcible sexual intercourse was committed
upon her.
47. The consensual nature of the relationship, even if accepted, does not
by itself answer the specific allegation of force on the identified dates, made
in the FIR and reiterated in the statement of the complainant under Section
183 BNSS. In this regard, it must be emphasised that consent to a
relationship is not tantamount to consent to each act within it. A reference
can be made to Explanation 2 to Section 63 of the BNS, which defines
consent in the following terms:
“ Consent means an unequivocal voluntary agreement when the woman
by words, gestures or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific sexual act
Provided that a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as
consenting to the sexual activity. ”
;
(emphasis supplied)
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48. The offences principally alleged are of grave and serious nature.
Offence under Section 64(1) BNS carries rigorous imprisonment for not less
than 10 years, extending to imprisonment for life, and a fine. Section
64(2)(m), which punishes the commission of rape repeatedly on the same
woman, carries the same minimum sentence, while the maximum extends to
imprisonment for life.
49. It may also be noted that Section 120 of the Bharatiya Sakshya
Adhiniyam, 2023 (corresponding to Section 114A of the Indian Evidence
Act, 1872) raises a presumption as to absence of consent in a prosecution for
rape under Section 64(2) BNS, where (i) sexual intercourse by the accused
is proved, and (ii) the woman states in her evidence before the Court that she
did not consent. This presumption underscores the seriousness with which
the legislature views the offence now invoked under Section 64(2)(m) BNS.
Prima Facie Case
50. The material/electronic evidence collected so far, prima facie , lends
support to material portions of the complainant’s account. The applicant’s
presence with the complainant on the material dates referred to in the FIR is,
in fact, not disputed by him (though, as regards 08.03.2026, he disputes the
alleged occurrence at the premises near Sunder Nursery and has not
identified the premises to which the parties went after Sunder Nursery) and
is prima facie corroborated by the CDR/location records and the hotel
records. The applicant’s own messages, prima facie , are consistent with the
complainant’s account, which have been referred to hereinabove.
51. In Crl. M.A. 30416/2026 filed by the State, it has been specifically
stated as under:
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52. The circumstances relied upon by the applicant, namely, that the
complainant booked the hotel rooms, travelled to Patna, and sent a message
in April 2026 setting out “three options”, may at best indicate that the parties
were in a relationship, a fact which is not in dispute. They do not, however,
answer the specific allegation that, on the identified occasions, sexual
intercourse took place against her will. Consequently, the applicant’s
arguments do not, at this stage, convince this Court to take a view that no
prima facie case has been made against the applicant. Accordingly, the
applicant, in this regard, has failed to meet the test laid out in the dicta
referred to hereinabove.
53. The contention that the FIR is a counter-blast to the criminal
complaint instituted by the applicant at Patna does not, at this stage, detract
from the prima facie case. The complainant’s version is prima facie
supported by her statement under Section 183 of the BNSS, the medical
examination, the CDR/location and hotel records, and the applicant’s own
messages. Whether the proceedings at Patna were pre-emptive in nature, or
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the FIR was actuated by any motive, are matters for investigation and trial.
54. In this regard, the Supreme Court’s decision in CBI v. Santosh
Karnani , 2023 SCC OnLine SC 427 can also be taken note of, wherein the
Court observed as under:
“ 24. The time-tested principles are that no straitjacket formula can be
applied for grant or refusal of anticipatory bail. The judicial discretion
of the Court shall be guided by various relevant factors and largely it
will depend upon the facts and circumstances of each case. The Court
must draw a delicate balance between liberty of an individual as
guaranteed under Article 21 of the Constitution and the need for a fair
and free investigation, which must be taken to its logical conclusion.
Arrest has devastating and irreversible social stigma, humiliation, insult,
mental pain and other fearful consequences. Regardless thereto, when
the Court, on consideration of material information gathered by the
Investigating Agency, is prima facie satisfied that there is something
more than a mere needle of suspicion against the accused, it cannot
jeopardise the investigation, more so when the allegations are grave in
nature.
”
(emphasis supplied)
55. Furthermore, the evidentiary value, as well as the complete context, of
the chats and audio recordings relied upon by both sides is a matter for trial
and cannot be adjudicated in the present proceedings. In this regard, a
reference can be made to the decision, dated 24.02.2026, of this Court in
Mo. Ammar v. The State (Govt. of NCT of Delhi) , Bail Appln. 5066/2025,
wherein the Court, in a similar context, made the following observations:
“ 12. Viewed from this perspective, I am of the view that this is not a fit
case for the grant of the extraordinary remedy of anticipatory bail to the
petitioner. The allegations against the petitioner are of rape, which is
undoubtedly serious in nature, and is punishable by life imprisonment.
While the communications referred to by the petitioner, prima facie,
show cordial communications even after the date of the first alleged
incident, this is not the stage for conducting a mini trial. Ms. Arya has
pointed out that the chats placed on record are incomplete. The chats are
also not in continuity, and some of them [eg. WhatsApp conversations
dated 08.06.2025, 19.10.2025, 20.10.2025], do appear to contain deleted
messages.
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13. The prosecutrix’s statement under Section 183 BNSS has
corroborated the initial allegations.
The investigation is still at a nascent
stage. ”
(emphasis supplied)
Destruction Of Evidence
56. Most significantly, crucial evidence on the applicant’s side has
become unavailable. It is noticed that in the anticipatory bail application
(No. 2382/2026) filed on behalf of the applicant before the learned ASJ,
South-East, Saket Courts, Delhi, it was specifically averred as under:
“43. …….Finally, the applicant, being exasperated by the continuous
threats, intimidation, and coercion, categorically informed the
complainant that he had also preserved in his mobile phone the entire
electronic record of their relationship, including their conversations,
messages, photographs, and other communications, and that in the
event any false allegation was made against him, he would defend
himself through lawful means before the competent authorities and
Courts.”
57. The said application goes on to further aver as under:
“ 44. Shortly thereafter, while the applicant was returning to PMCH at
approximately 11:00 PM on 04.06.2026, he was intercepted by certain
unknown persons who abused him in filthy language, physically
assaulted him, threatened him with a knife, and forcibly snatched away
his mobile phone before fleeing from the spot. The applicant sustained
injuries in the said assault and the applicant was examined vide MLC
bearing ERS No. 5770. The close proximity between the repeated threats
extended by the applicant and the aforesaid assault indicating the fact
that the incident was not a mere coincidence but it was at the instance of
the complainant or her family members as it now transpires. A copy of
medical prescription indicating MLC bearing ERS No. 5770 is annexed
herewith as ANNEXURE A11. ”
58. Notably, the applicant is a doctor pursuing his post-graduation at
Patna Medical College Hospital, and no complaint to the police regarding
the alleged snatching of his mobile phone at knife-point is on record. The
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only document on which he seeks to rely is the registration slip of his own
hospital dated 05.06.2026 at 10:45 A.M, . i.e. , around eleven (11) hours after
the alleged incident, which records an “alleged” case of “physical assault” at
around 11:30 PM on 04.06.2026; the slip records the patient as “Referred
by: Self”. No step taken by the applicant to either report the loss of his
phone or to trace it has been brought on record. Although it is asserted in the
present application that a complaint was launched, no such complaint has
been placed on record. The WhatsApp exchange of 06.06.2026 relied upon
by the applicant, in which the complainant enquires whether he had got his
phone, shows no more than that she had been told of its loss; it does not
establish the circumstances in which the handset became unavailable. The
entire version of the applicant regarding the loss of his handset does not
inspire credibility, to say the least.
59. The result is that the device which, by the applicant’s own averment,
held the entire record of the relationship became unavailable within hours of
him having so informed the complainant. Moreover, it is noticed that the
applicant is stated to have deleted his Instagram communications with the
complainant. The explanation that the said deletion took place prior to the
registration of the FIR, and that the applicant has since furnished his
credentials to the Investigating Officer, does not obviate the need to
investigate the timing, extent and recoverability of the deleted data, which,
as stated in paragraph 33 of the Status Report, requires forensic
examination. It is noteworthy that, while in his reply to Crl.M.A.
30416/2026 the applicant complains that the prosecution has not stated when
the deletion took place, in his reply to the Status Report he himself asserts
that the Instagram conversations were deleted “much prior to the registration
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of the FIR”, without disclosing when, from which device or account, or for
what reason the deletion was effected.
60. The aforesaid aspect goes to the credibility of the version put forth by
the applicant and the necessity to ensure that the relevant evidence is
recovered. Suffice it to say, an applicant whose mobile device vanished on
the very day on which he asserted that it held the whole record, and whose
account of the relationship is contradicted by the facts and circumstances
identified by the State, does not qualify as an ‘exceptional case’ in which the
Court would protect an accused from arrest in advance.
61. It has been emphasised on behalf of the State that the investigation is
at a stage where the applicant is required to be confronted with the
circumstances surrounding the non-availability/deletion of evidence and the
inconsistencies in his own account, and for tracing and securing the
remaining digital record.
Conclusion
62. It can be observed that the offences are alleged to have been
committed on specific identified occasions. The investigation is incomplete,
and the investigating agency has shown a specific need for the applicant’s
custodial interrogation. In the opinion of this Court, the present case is not
an ‘exceptional case’ warranting the extraordinary relief of anticipatory bail.
The applicant’s defence is one to be tested in trial, and it would not be
apposite to grant any relief which would restrict/inhibit the investigation.
63. This Court takes note of the Crl.M.A. 30416/2026, filed on behalf of
the State, wherein the exacerbating circumstances (referred to hereinabove)
have been set out, which warrant that the interim protection be discontinued.
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64. It may be noted that the protection granted on 17.08.2026 was, in
terms, an interim arrangement operative “till the next date of hearing”,
pending the comprehensive reply of the State, and was continued on
17.09.2026 in the same terms. It was not an order granting anticipatory bail
upon adjudication of the application. The material which has since come on
record, namely, the Status Report, the CDR/location and hotel records, the
circumstances concerning the non-availability of the earlier handset and the
deletion of the Instagram communications, and the inconsistencies in the
applicant’s own account, constitutes a material change in circumstances
since 17.08.2026.
65. Consequently, the interim protection granted to the petitioner vide
order dated 17.08.2026, passed in the present proceedings, stands vacated,
and Crl.M.A. 30416/2026 is, accordingly, allowed.
66. It is noticed that the order dated 17.09.2026 was passed in the present
application as also in W.P.(Crl) 2484/2026. However, the only interim order
then in operation was the order dated 17.08.2026 passed in the present
application. Accordingly, no interim order was passed in the said writ
petition on 17.08.2026 or thereafter, and none subsists therein.
67. In W.P.(Crl) 2484/2026, which is listed on 17.11.2026, an application,
being Crl.M.A. 25062/2026, has been filed seeking interim protection from
coercive actions including arrest. The said writ petition as also Crl. M.A.
25062/2026 shall be considered independently and nothing in this judgment
shall be construed as an expression of opinion of this Court on the merits
thereof.
68. In view of the foregoing, the instant bail application, i.e. , Bail Appln.
3355/2026, stands dismissed.
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69. The date already fixed i.e., 17.11.2026 stands cancelled.
70. It is made clear that the dismissal of the present bail application shall
not preclude the applicant from surrendering before the competent Court and
seeking regular bail, which shall be decided in accordance with law,
uninfluenced by the observations made herein.
71. The identity of the complainant shall not be disclosed in any
proceedings or report arising from this judgment.
72. Further, nothing stated hereinabove shall be construed as an
expression of opinion on the merits of the case. The observations made
hereinabove are only for the purpose of disposing of the present bail
application.
73. Let a copy of this order be sent to the jurisdictional Magistrate and the
concerned SHO, P.S. Hazarat Nizamuddin, for information and compliance.
SACHIN DATTA, J
at/ka/vk
OCTOBER 30, 2026/
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