Delhi HC Denies Anticipatory Bail To Man Accused Of Repeated Rape, Citing His Missing Phone And Deleted Instagram Chats

The applicant sought anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in an FIR alleging, among other offences, rape and sexual intercourse by deceitful means.

The complainant alleged that the applicant forcibly had sexual intercourse with her on three identified occasions and attempted to do so on another, while using threats and other pressure to silence her.

The applicant maintained that their relationship was consensual, denied force, and said his earlier mobile phone—which allegedly contained records of their relationship—had been stolen.

The Sessions Court had rejected anticipatory bail; the High Court later granted temporary protection pending the State’s response.

The State’s subsequent status report referred to supporting location and hotel records, deleted Instagram communications, and the circumstances surrounding the unavailable phone.

Section 482 of the BNSS empowers the Court to grant anticipatory bail, an exceptional remedy that is not available as a matter of course; the Court must consider the prima facie case, gravity of the offence, and relevant investigative needs.

Custodial interrogation is a relevant consideration, but its asserted absence—or the applicant’s cooperation—does not, by itself, require anticipatory bail.

Under Sections 63 and 64 of the BNS, consent must relate to the specific sexual act; consent to a relationship does not establish consent to each act.

Section 69 of the BNS applies to sexual intercourse that does not amount to rape under Section 64.

Section 120 of the Bharatiya Sakshya Adhiniyam, 2023 provides for a presumption as to absence of consent in specified rape prosecutions where its statutory conditions are met.

The Court also relied on the principle that bail discretion must balance individual liberty with the need for a fair investigation, particularly where allegations are grave and supported by material beyond mere suspicion.

The Court treated the complainant’s specific allegations of forced intercourse as distinct from the dispute over whether the relationship was consensual or induced by a false promise of marriage; the latter did not answer the allegation that particular sexual acts occurred without consent.

It found prima facie support in the complainant’s statement under Section 183 of the BNSS, CDR/location and hotel records, and the applicant’s messages.

The applicant’s repeated attendance for questioning and surrender of his current phone did not foreclose a later need for custodial interrogation.

The Court also considered the unexplained absence of the phone said to contain the relationship records, the lack of a substantiated report of its alleged theft, and the deletion of Instagram communications relevant to the investigation and forensic recovery.

Given those circumstances and the investigation’s incomplete state, the Court held that the applicant had not shown an exceptional basis for pre-arrest protection.

It clarified that the applicant remained free to surrender and seek regular bail, to be decided in accordance with law and uninfluenced by the observations in the judgment.

It directed that the complainant’s identity not be disclosed and stated that its observations were confined to the bail application.