Prolonged relationship continued after knowledge of marriage prima facie indicates consensual sex, warranting anticipatory bail.

The petitioner, a Police Sub-Inspector, sought anticipatory bail in FIR No. 178/2026 registered at Police Station Samba for offences under Sections 69, 83, 88 and 115(2) of the Bharatiya Nyaya Sanhita, 2023 (“BNS”).

The prosecutrix, a police employee, alleged that she came into contact with the petitioner in September 2024, that he repeatedly promised to marry her, and that they thereafter lived together in a relationship resembling marriage.

She alleged that she became pregnant twice and was persuaded by the petitioner to terminate both pregnancies on assurances of marriage.

She later discovered that the petitioner was already married, but alleged that he continued assuring her that he would leave his wife and marry her.

She further alleged physical assault, a purported marriage ceremony in May 2025, and that the petitioner abandoned her after she informed him of a subsequent pregnancy.

During a departmental fact-finding inquiry, the petitioner responded to a questionnaire, photographs of the alleged marriage were collected, and the priest who allegedly solemnised the marriage was examined.

The inquiry officer recommended a detailed criminal investigation, resulting in registration of the FIR.

The petitioner’s application for anticipatory bail was dismissed by the Principal Sessions Judge, Samba, on 23 July 2026, following which he approached the High Court.

The State opposed bail on the grounds of seriousness of the allegations, alleged abscondence, and possible witness tampering.

Whether, having regard to the prolonged relationship between the petitioner and the prosecutrix and her continued association with him after learning of his existing marriage, the allegations prima facie disclosed that her consent for sexual relations was obtained under a misconception of fact or through a false promise of marriage.

Whether the petitioner was entitled to anticipatory bail despite the gravity of the offences, the stage of investigation, and the State’s apprehension that he might abscond or influence witnesses.

Whether the petitioner’s conduct and the material collected during the inquiry justified custodial arrest for the purposes of investigation.

The Court applied the principles governing anticipatory bail laid down by the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, including consideration of the nature and seriousness of the accusation, the applicant’s antecedents, possibility of abscondence, likelihood of witness tampering, and the larger interests of justice.

It also relied on Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, which requires consideration of the gravity of the offence, the accused’s role, and his conduct while exercising discretion on anticipatory bail.

On the issue of consent and a false promise of marriage, the Court relied on Mahesh Danu Khare v. State of Maharashtra, (2024) 11 SCC 398, which holds that a prolonged consensual relationship, particularly where the woman is mature and aware of the man’s marital status, may indicate that the promise of marriage was not false from the inception and that consent was not obtained under a misconception of fact.

The Court also considered the offences alleged under Sections 69, 83, 88 and 115(2) BNS and the prosecutrix’s statement recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The Court accepted that the alleged offences were grave, but held that gravity alone could not determine the anticipatory-bail application.

On the material available at the preliminary stage, the prosecutrix initially appeared to have been unaware of the petitioner’s marital status; however, she continued the relationship after learning that he was married and had children, continued to meet and live with him, conceived again, and participated in a purported marriage ceremony despite knowing that a second marriage during the subsistence of the first was legally invalid.

Applying Mahesh Danu Khare, the Court held that these circumstances prima facie suggested a consensual relationship rather than one wholly founded on a misconception of fact.

The Court nevertheless observed that the prosecution would have to investigate whether the ingredients of cheating and the other alleged offences were established.

The allegation that the petitioner was absconding was not accepted because he had participated in the departmental inquiry, answered the questionnaire, continued to attend his duties, and remained subject to the administrative and disciplinary control of the police department.

The Court consequently found custodial arrest unnecessary, while safeguarding the investigation through stringent conditions.

The petitioner was directed to remain available for investigation, appear whenever required, refrain from influencing witnesses or obstructing the investigation, and not leave the territorial limits of the Union Territory of Jammu and Kashmir without prior permission of the Investigating Officer.

The Investigating Agency was granted liberty to seek cancellation of bail in the event of breach of any condition.