High Court says trial court failed to consider victim’s Section 164 statement, false promise of marriage allegations, and electronic blackmail material
Bail Order Quashed
The Jammu & Kashmir and Ladakh High Court has set aside a regular bail order passed by a trial court in a rape case.
The case involved allegations under Sections 376 and 506 of the Indian Penal Code.
Justice Sanjay Parihar held that the trial court passed a cryptic order without proper reasons.
The Court said the trial court failed to consider material aspects of the case. These included the victim’s statement under Section 164 Cr.P.C. and allegations of inducement on a false promise of marriage.
Petition Filed By Victim
The Court was hearing a petition filed by the complainant/victim under Section 483(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
The petition challenged the bail order dated August 3, 2024.
The Additional Sessions Judge, Fast Track Court, Budgam had passed the order in FIR No. 272/2023.
Earlier, the trial court had granted interim bail to the accused on December 16, 2023.
Later, the trial court made the interim bail absolute and enlarged the accused on regular bail.
Accused Directed To Surrender
The High Court allowed the victim’s petition.
It held that the trial court’s bail order could not be sustained in law.
Therefore, the Court withdrew the bail granted to the accused.
It also directed him to surrender before the trial court forthwith.
The Court said a superior court can interfere with a bail order if it is perverse, cryptic or ignores material evidence.
Further, it held that the start of trial cannot protect such an order.
Allegations In Complaint
The petitioner alleged that the accused was her neighbour.
She claimed that he persistently followed her and tried to contact her.
According to the petitioner, the accused introduced himself as a well-settled person working in a reputed company.
She also alleged that he made a false proposal of marriage.
The victim claimed that she trusted these representations.
As a result, she consented to a relationship with him.
She alleged that this led to repeated sexual encounters over a period of time.
Alleged Recording And Threats
The victim further alleged that the accused secretly recorded intimate acts.
She claimed that he recorded them without her knowledge or consent.
When she confronted him, he allegedly assured her that he would delete the videos.
However, she later found several such videos on his laptop.
According to her, the laptop also contained videos involving other women.
The petitioner alleged that the accused threatened to upload the videos on social media when she confronted him.
Forensic Material And Other Victims
After the complaint, the police registered an FIR and arrested the accused.
The investigating agency also seized electronic devices.
Forensic examination revealed multiple recorded instances involving different women.
Later, two such victims came forward to support the prosecution.
The authorities examined them under Sections 161 and 164 Cr.P.C.
Trial Court Proceedings
The trial court first granted interim bail to the accused.
The victim challenged that order before the High Court.
Thereafter, the High Court directed the trial court to decide the bail application expeditiously.
The trial court then made the interim bail absolute.
Consequently, the victim approached the High Court under Section 483(2) BNSS.
Victim’s Statement Not Considered
The High Court noted that formal charges had not been framed when the trial court considered the bail plea.
However, the victim’s statement under Section 164 Cr.P.C. was already on record.
The Court said the statement gave a detailed account of how the accused allegedly induced her into sexual relations.
Later, the trial court formally charged the accused on July 29, 2024.
Principles On Bail In Serious Offences
The High Court referred to Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528.
It also referred to Masroor v. State of Uttar Pradesh, (2009) 14 SCC 286.
The Court reiterated that courts must apply settled principles while granting bail in serious offences.
It also relied on Ajwar v. Waseem, (2024) 10 SCC 768.
The Court said a superior court can interfere when a bail order is arbitrary, perverse or bereft of reasons.
Further, the Court relied on a recent Supreme Court judgment reported as 2025 INSC 877.
It noted that bail in grave offences must rest on cogent reasons and proper appreciation of the record.
Trial Court Order Found Cryptic
The High Court examined the impugned order and found serious defects.
It held that the trial court failed to consider the victim’s detailed statement under Section 164 Cr.P.C.
The Court also said the trial court ignored key allegations.
These included inducement on a false promise of marriage, exploitation and blackmail through electronic means.
The High Court held that the order did not show proper application of mind.
It also said the trial court failed to assess the gravity of the offence and the manner of the alleged crime.
Consent Cannot Be Examined In Vacuum
The High Court rejected the accused’s argument that the relationship was consensual.
It held that courts cannot examine consent in isolation.
The Court said this becomes important when the allegations disclose deception or misconception of fact.
It observed that the victim’s Section 164 Cr.P.C. statement and surrounding material showed a prima facie case.
According to the Court, the accused allegedly induced her into the relationship on a false promise of marriage.
If proved, such circumstances would vitiate consent under settled legal principles.
Trial Commencement Not A Bar
The Court said that, at the bail stage, the record must only disclose a prima facie case.
It added that the plea of a consensual relationship raised disputed questions of fact.
The trial court must decide those questions during trial.
The accused argued that the Court should not remand him since the trial had already started.
However, the High Court rejected this submission.
It said bail in a grave and heinous offence cannot stand when the trial court grants it without due application of mind.
The Court added that such an order undermines the victim’s confidence, shocks the conscience of the Court and affects society at large.
Liberty To Seek Bail Again
The High Court clarified that its observations apply only to the present petition.
It said the trial court should not treat them as findings on the merits of the case.
The Court also gave the accused liberty to renew his bail prayer.
However, he may do so after the trial court examines material witnesses.
Case Details
Case Title: XXX v. Afaq Ali Khan
Citation: 2026 LiveLaw (JKL)
Court: Jammu & Kashmir and Ladakh High Court
Bench: Justice Sanjay Parihar
Appearances
For the Petitioner: Ms. Ayshia Zaheer, Advocate
For the Respondent: Mr. Shariq Riyaz Jan, Advocate
For the State: Mr. Bikram Deep Singh, Dy. AG
