Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar has dismissed a plea seeking anticipatory bail while concurrently quashing proceedings against co-accused individuals in a matter involving allegations of rape on the false pretext of marriage. The court held that the allegations against the principal accused were serious in nature and supported by prima facie evidence, thereby necessitating further investigation. Consequently, anticipatory bail was denied to the primary petitioner. However, the court found that the charges against the other two petitioners lacked sufficient connection to the alleged crime and therefore quashed the proceedings against them.

The petition involved a common judgment addressing three interconnected proceedings: CRM(M) No.216/2025 and Bail Application Nos.62 and 72 of 2025. The petitioners had sought to challenge the registration of FIR No.83/2025 lodged under Sections 69 and 351(3) of the Bharatiya Nyaya Sanhita (BNS) at Police Station, Anantnag. The main petitioner sought anticipatory bail on the grounds that the allegations were false and the outcome of a failed personal relationship, whereas the two co-petitioners (brothers of the main accused) also sought anticipatory relief.

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The FIR stemmed from a complaint filed by respondent No.2 before the Special Mobile Magistrate, Anantnag, who had directed the police to take necessary action. It was alleged in the FIR that the complainant was invited to the residence of petitioner No.1 with the support of his brothers and a woman. The complainant stated that petitioner No.1 developed a close relationship with her in March 2021, borrowed Rs.10 lakhs from her for educational purposes, and cohabited with her in Anantnag and Delhi under the false pretext of marriage. She alleged that on March 13-14, 2025, she was sexually assaulted by petitioner No.1 at his residence.

The petitioners contended that petitioner No.1 had a consensual relationship with respondent No.2 that turned sour after he discovered multiple criminal cases against her, including an FIR No.154/2020 registered at Police Station Shergari, Srinagar. They claimed that the complaint was filed as retaliation after petitioner No.1 initiated a complaint against respondent No.2 under Section 308(6) BNS following an incident on 27.02.2025 when she allegedly trespassed into his home and demanded money.

The petitioners argued that the learned Magistrate had only directed an inquiry, not registration of an FIR. They claimed the police acted beyond the Magistrate’s order by registering an FIR. Further, they contended that even if the allegations were accepted at face value, they did not meet the legal threshold for offences under Sections 69 and 351(3) BNS.

Respondent No.2 denied the extortion allegations and asserted that she had provided financial and domestic assistance to petitioner No.1 and his family. She also claimed that the accused was intimidating her by sending emails to her employer and that he never intended to marry her.

The court addressed the argument regarding the Magistrate's order first. It stated: "Although actually the learned Magistrate had passed an order directing enquiry into the complaint... the order which was forwarded to the SHO concerned provides for taking action under law." The court further held: "Once it was conveyed to the SHO concerned that he has to take action under law and he found that cognizable offence is made out... he had no choice but to register the FIR."

In response to the petitioners' reliance on Farooq Ahmad v. State of J&K, the court observed that the facts differed as the order in that case explicitly directed an enquiry without authorizing registration of an FIR, unlike the current case where the police were directed to take legal action.

On the issue of consent and false promise of marriage, the court quoted: "Unless it is shown that physical relationship... was direct result of false promise of marriage... it cannot be stated that respondent No.2 had given her consent under a misconception of fact." The court acknowledged the legal principle from Biswajyoti Chaterjee vs. State of West Bengal that the voluntariness of consent must be judged based on surrounding circumstances.

It observed that the complainant had produced WhatsApp chats showing repeated assurances of marriage by the petitioner and recorded: "Petitioner No.1 has been expressing not only his love... but he has been time and again assuring her that he would enter into wedlock with her." Further, "She showed reluctance to enter into sexual relationship... but petitioner No.1 assured her that he would be marrying her only."

The court stated: "These allegations levelled by respondent No.2 find support from the WhatsApp chats... The chats reveal that at one point in time, respondent No.2 showed her reluctance... but petitioner No.1 assured her..."

It held that it could not undertake a mini-trial at this stage and stated: "Whether the promise of marriage... was only for the purposes of extracting sexual favours... is also a matter which requires to be investigated."

Regarding the other petitioners, the court noted: "There are no allegations... to the effect that they are privy to the sexual relationship between petitioner No.1 and respondent No.2." It concluded: "The allegations made in the impugned FIR against petitioners No.2 and 3, even if taken at their face value, do not constitute any offence... Thus, the same deserve to be quashed at this stage itself."

On anticipatory bail, the court reiterated the principles laid down in Sushila Aggarwal, stating: "The grant or refusal of bail... is a matter of discretion... The Court has to strike a delicate balance between the right to liberty... and need for a free and fair investigation."

It then recorded: "There is material on record to suggest that petitioner No.1 has extended promise of marriage... while extracting sexual favours..." and "Granting bail... at this stage would not only have an adverse impact on the investigation... but it will also have a discouraging effect upon the prosecutrix..."

The High Court concluded its judgment with the following directives:

"Petition bearing CRM(M) No.216/2025, to the extent of petitioner No.1 is dismissed. However, to the extent of petitioners No.2 and 3, the petition is allowed and the impugned FIR and investigation thereof to the extent of said petitioners is quashed."

"Bail application bearing Bail App No.62/2025 filed by petitioner No.1 is dismissed."

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"Bail App No.72/2025 filed by petitioners No.2 and 3 has been rendered infructuous on account of quashment of impugned FIR against them."

The court noted that further investigation including seizure and analysis of electronic devices was critical and that granting bail would likely hamper the process. It recorded: "The Investigating Agency will have to seize the electronic gadgets... and in case petitioner No.1 is granted bail... it is likely that he would succeed in destroying the electronic evidence."

Advocates Representing the Parties:
For the Petitioners: Mr. Shafqat Nazir, Advocate; Mr. Shabir Ahmad, Advocate
For the Respondents: Mr. Ilyas Laway, Government Advocate; Mr. Mian Tufail, Advocate

Case Title: Shakir-ul-Hassan & Ors. v. UT of J&K & Another
Case Number: CRM(M) No.216/2025; Bail App Nos.62/2025 and 72/2025
Bench: Justice Sanjay Dhar

[Read/Download order]