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2025 Supreme(Online)(J&K) 628
HIGH COURT OF JAMMU AND KASHMIR
SANJAY DHAR, J
SHAKIR-UL-HASSAN & ORS. – Appellant
Versus
UT OF J&K & another – Respondent
CRM(M) No.216/2025 | Bail App No.62/2025 | Bail App No.72/2025
For the Appellants/Petitioners:Mr. Shafqat Nazir, Advocate, Mr. Shabir Ahmad, Advocate
For the Respondents: Mr. Ilyas Laway, GA-for R1, Mr. Mian Tufail, Adv-for R2
The non-fulfillment of a promise of marriage does not warrant prosecution unless it can be shown that consent was procured under deception.
Headnote:(A) Criminal Procedure Code - Bail - The petitioners/accused challenged FIR for offences under Sections 69 and 351(3) of BNS; allegations included deception and assault; factors considered for bail included the nature and gravity of the allegations and the potential impact on the investigation. (Paras 2, 31)
(B) Consent in Sexual Offences - A promise of marriage does not constitute consent under a misconception of fact unless intended to mislead; the surrounding circumstances dictate the validity of the consent given. (Paras 19, 20)
Facts of the case:
The petitioners invited the complainant for monetary aid and established a relationship based on deception, leading to allegations of sexual assault and exploitation when the promise of marriage was not fulfilled. (Paras 3-6)
Findings of Court:
The petitioners have failed to show that the FIR does not constitute an offence; bail granted to one petitioner quashed as the allegations are serious and warrant investigation. (Paras 28, 32)
Issues: Whether a breach of promise of marriage constitutes an offence and the role of each petitioner in the alleged crimes. (Paras 18, 27)
Ratio Decidendi: The court reaffirmed that consent given under deceitful promises cannot stand, thus supporting the need for restraining order pending investigations. (Paras 19, 29)
Result: Petition for quashing FIR against petitioners No.2 and 3 allowed; bail denied for petitioner No.1, maintaining the investigatory process.
| Table of Content |
|---|
| 1. allegations of deceit and sexual exploitation. (Para 3 , 4 , 5) |
| 2. response to allegations and claim of harassment. (Para 9 , 10) |
| 3. consent validity under deception. (Para 19 , 20) |
| 4. bail application proceedings and impact on investigation. (Para 28 , 31) |
| 5. final orders regarding bail applications. (Para 33) |
JUDGMENT
1) By this common judgment above numbered two bail applications along with petition under Section 528 of BNSS are proposed to be disposed of.
2) Vide petition bearing CRM(M) No.216/2025, the petitioners/accused have thrown challenge to FIR No.83/2025 for offences under Section 69 and 351(3) of BNS registered with Police Station, Anantnag. Vide Bail App No.62/2025, petitioner/accused Shakir-ul-Islam has sought bail in anticipation of his arrest while as vide Bail App No.72/2025, petitioners Mohammad Ashraf Bhat and Javid Ahmad Bhat have sought bail in anticipation of their arrest in the aforesaid FIR.
(I) FACTS:
3) As per the allegations made in the impugned FIR, which came to be registered pursuant to the directions of the Special Mobile Magistrate, Anantnag, issued in the complaint made by respondent No.2/complainant, petitioner No.1 invited the complainant to his home with the aid and assistance of petitioners No.2 and 3 along with one Ruhi Rifat. It is pertinent to mention here that petitioners No.2 and 3 happen to be the brothers of petitioner No.1. It was alleged that the complainant was invited by petitioner No.1 so as to develop close relations with her with the idea of getting monetary aid from her family. Respondent No.2 is stated to have accepted the invitation of petitioner No.1 in the month of March, 2021. It is alleged that petitioner No.1 borrowed a sum of Rs.10.00 lacs from respondent No.2 for meeting his educational expenses, whereafter he developed close association with respondent No.2. It is alleged that petitioner No.1 by deceitful tactics promised to marry the complainant and exploited her position by meeting her off and on at various places by giving her impression that for all practical purposes she is his wife. It is further alleged that petitioner No.1 cohabited with the complainant, both at his residential house situated at Gund Jaffar, Anantnag, and also at Delhi, several times by representing that she is his wife, which, according to the complainant, is clear from phone calls and messages exchanged between the two. It is further alleged that the petitioners again invited the complainant on 13th and 14th March, 2025, along with her friends at their residence at Gund Jaffar, Anantnag, for a formal conference. However, petitioner No.1 in the midst of night took the complainant in a separate room where he disrobed her and committed rape upon her several times. She is stated to have raised a hue and cry, whereafter other family members reached the spot and when the complainant narrated her story to the other petitioners, they gave a beating to her and warned her of dire consequences. It has been alleged that petitioner No.1 always gave an impression to the complainant that she is his wife and that formal marriage would take place soon.
(II) Stand of the petitioners:
4) The petitioners have challenged the impugned FIR and claimed bail in anticipation of their arrest on the grounds that petitioner No.1 is a highly qualified person having a distinguished academic record without there being any criminal antecedents. It has been further contended that the petitioners No.2 and 3 have no connection with the allegations levelled by the complainant/respondent No.2. It has been pleaded that petitioner No.1 came into contact with respondent No.2 through social media and a consensual relationship developed between the two. According to the petitioners, in the year 2023, petitioner No.1 proposed marriage to the complainant/respondent No.2, following which preliminary inquiries regarding complainant’s background were initiated by the petitioners. During the enquiry, it came to the fore that m
