Jammu & Kashmir High Court - Srinagar Bench
Shakir-Ul-Hassan & Ors vs Ut Of J&K & Another on 30 May, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 20.05.2025
Pronounced on 30.05.2025
CRM(M) No.216/2025
Bail App No.62/2025
Bail App No.72/2025
SHAKIR-UL-HASSAN & ORS. ... PETITIONER(S)
Through: - Mr. Shafqat Nazir, Advocate.
Mr. Shabir Ahmad, Advocate.
Vs.
UT OF J&K & another ...RESPONDENT(S)
Through: - Mr. Ilyas Laway, GA-for R1.
Mr. Mian Tufail, Adv-for R2.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
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.
CRM(M) No.216/2025 c/w
(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
CRM(M) No.216/2025 c/w
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
CRM(M) No.216/2025 c/w
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 multiple criminal cases are
registered against the complainant/respondent No.2 and
that she had previously engaged herself in deceptive
relationship with certain individuals for financial gain. In
this regard, the petitioners have made reference to FIR
No.154/2020 registered with Police Station, Shergari,
Srinagar, which relates to an incident of theft of gold
ornaments from Shah Ornaments, Mehjoor Nagar, Srinagar,
by respondent No.2. It has been submitted that because of
these revelations, petitioner No.1 chose to end his
relationship with respondent No.2 in the month of August,
2023.
5) According to the petitioners, after a lapse of more than
one year, respondent No.2 started harassing them and she
started making demands of Rs.17.00 lacs in lieu of giving up
her demand for marriage. Petitioner No.1, apprehending
criminal intimidation on the part of respondent No.2, filed a
criminal complaint for offence under Section 308(6) of BNS
CRM(M) No.216/2025 c/w
before the Court of District Mobile Magistrate, Anantnag, in
which a notice was issued by the learned Magistrate to
respondent No.2. It has been contended that on 27.02.2025,
when petitioner No.1 was away in Delhi, respondent No.2
trespassed into his residential house and started making
monetary demands for settlement of the issue, whereafter
the local Auqaf Committee submitted a report before the
SHO concerned.
6) It has been contended by the petitioners that as a
counterblast to the complaint filed by petitioner No.1 against
respondent No.2, she filed a complaint before the Special
Mobile Magistrate, Anantnag, which culminated into
registration of the impugned FIR. It has been further
contended that the petitioners No.2 and 3 reside away from
the residence of petitioner No.1 and their sister is residing at
Delhi but respondent No.2, with malafide intentions, has
roped in all the siblings of petitioner No.1.
7) The petitioners have contended that the allegations
made in the impugned FIR, even if taken at their face value,
do not, prima facie, constitute any offence against the
petitioners as the basic ingredients of offences under Section
69, 351(3) of BNS are not made out. It has been further
contended that the allegations made in the impugned FIR
CRM(M) No.216/2025 c/w
are apparently frivolous and vindictive made with a view to
extort money from the petitioners. It has further been
contended that the learned Special Mobile Magistrate,
Anantnag, had only issued a direction to the police to
conduct enquiry into the matter and repot the facts but
instead of doing so, the police straightaway registered the
impugned FIR thereby overreaching the order of the learned
Magistrate.
8) It has also been contended that mere breach of promise
of marriage cannot form a basis for prosecution under
Section 69 of BNS. According to the petitioners, petitioner
No.1 was involved in a consensual relationship with
respondent No.2 for a substantial period of time, during
which he made promise to marry her in good faith based on
mutual understanding but due to subsequent developments,
he could not fulfil his promise, which, according to the
petitioners, does not amount to criminality. It has been
further contended that there has been a considerable delay
of about one month in lodging the FIR without there being
any explanation from the complainant.
(III) Stand of respondent No.2/complainant:
9) According to respondent No.2, petitioner No.1, from the
very inception of his association with her, established a
CRM(M) No.216/2025 c/w
relationship on the false assurance of marriage which he
never intended to fulfil. It has been submitted that the
WhatsApp messages exchanged between the two clearly
establish that petitioner No.1 had extended promise of
marriage to the complainant solely for the purpose of gaining
sexual access to her. It has been contended that petitioner
No.1 has repeatedly attempted to intimidate the complainant
and for this purpose, he, in order to pre-empt the lodging of
FIR against him, filed the complaint against the complainant
before the Court of learned District Mobile Magistrate,
Anantnag. It has been submitted that petitioner No.1 has
been constantly sending emails to the employer of the
complainant with a view to intimidate her and to coerce her
to withdraw her complaint. It has been further submitted
that the petitioners have beaten up the complainant and
they are making every effort to cause harm to her. The
complainant has denied the allegation that she had
demanded any money from the petitioners for settlement of
the case and has, in fact, alleged that she has been
purchasing clothes, household items etc. for the petitioners
and their family. It has been submitted that the complainant
belongs to a respectable family and her father has retired as
a Zonal Education Officer whereas her sister is a doctor.
CRM(M) No.216/2025 c/w
10) It has been contended that petitioner No.1 has
committed a heinous offence by violating the bodily integrity
of the complainant, as such, he does not deserve the
concession of bail. It has been further contended that
petitioner No.1 has misused the trust of the complainant
which he gained through social media and made sexual
advances and exploitation of the complainant. Respondent
No.2 has filed photocopies of screenshots of her cell phone
depicting WhatsApp chats exchanged between her and
petitioner No.1.
11) The stand of the official respondent is same as has been
taken by respondent No.2 in her reply.
12) I have heard learned counsel for the parties and
perused record of the case
(IV).Discussion:
13) The first ground urged by learned counsel for the
petitioners for impugning the FIR and for seeking bail in
anticipation of their arrest is that the FIR has been registered
by the police without there being any direction from the
learned Magistrate to this effect. It has been contended that
only a direction for holding an enquiry and submitting report
was extended by the learned Special Mobile Magistrate,
Anantnag, to the SHO Police Station, Anantnag, but instated
CRM(M) No.216/2025 c/w
of holding an enquiry, the impugned FIR came to be
registered straightaway thereby circumventing the orders of
the learned Magistrate. It has been contended that such a
course adopted by respondent No.1 is impermissible in law.
In support of this contention, the petitioners have placed
reliance upon of judgment this Court in the case of Farooq
Ahmad and others vs. State of J&K and another (CRM(M)
No.827/2021 decided on 10.03.2023).
14) To counter the aforesaid argument, learned counsel for
respondent No.1 has placed on record copy of the complaint
that was forwarded by learned Special Mobile Magistrate,
Anantnag, to SHO, P/S Anantnag, which contains an
endorsement to the following effect:
"Copy of application is forwarded to SHO P/S
concerned to take action under law and to file
compliance report by or before next date i.e. on
28/04/2025."
15) From a perusal of the aforesaid endorsement, it is clear
that the learned Magistrate had, under his signatures,
forwarded the complaint filed by respondent No.2 to the
concerned SHO with a direction to take action under law and
to file a compliance report. Although actually the learned
Magistrate had passed an order directing enquiry into the
complaint filed by respondent No.2 yet the fact of the matter
remains that the order which was forwarded to the SHO
concerned provides for taking action under law. The SHO
CRM(M) No.216/2025 c/w
concerned, it seems, thought it proper to register an FIR
keeping in view the nature of the allegations made in the
complaint. It was never conveyed to the SHO concerned that
he had only to make an enquiry and submit report to the
SHO concerned court.
16) In Farooq Ahmad's case (supra), upon which reliance
has been placed by learned counsel for the petitioners, the
SHO concerned was specifically directed to hold enquiry and
the submit repot to the Magistrate whereas in the instant
case, the order which was conveyed to the SHO provided for
taking action under law. It is a settled law that even if a
Magistrate does not say so in so many words while directing
the SHO to take action under law, it is the duty of the officer
incharge of the Police Station to register the FIR regarding
the cognizable offence disclosed by the complaint because
the police officer can take further steps contemplated in
under Chapter XII of the Cr.P.C only thereafter. Reference in
this regard is made to the judgments of the Supreme Court
in the cases of Mohd. Yousuf v. Smt. Afaq Jahan & Anr,
(2006) 1 SCC 62 and Hemant Yashwant Dhage vs. State of
Maharashtra and others, (2016) 6 SCC 273.
17) Thus, once it was conveyed to the SHO concerned that
he has to take action under law and he found that cognizable
CRM(M) No.216/2025 c/w
offence is made out from the allegations made in the
complaint filed by respondent No.2, he had no choice but to
register the FIR. The order of holding enquiry was never
conveyed to the SHO. Therefore, the ratio laid down in
Farooq Ahmad's case (supra) would not be attracted to the
facts of the present case.
18) The main contention raised by learned counsel for the
petitioners for impugning the FIR is that even as per the case
of the complainant, there was a long-standing consensual
relationship between petitioner No.1 and respondent No.2. It
has been contended that unless it is shown that physical
relationship between petitioner No.1 and respondent No.2
was direct result of false promise of marriage made by
petitioner No.1, it cannot be stated that respondent No.2 had
given her consent under a misconception of fact. The learned
counsel has argued that the complainant knowingly entered
into a consensual sexual relationship with petitioner No.1
over a long period of time and it was only when petitioner
No.1 decided to snap this relationship because of the
subsequent developments, that the complainant decided to
lodge criminal prosecution against him and his siblings. It is
being contended that in the facts and circumstances of the
case, a presumption arises that respondent No.2 had
voluntarily chosen to have sexual relationship with
CRM(M) No.216/2025 c/w
petitioner No.1 and it was not based upon any promise of
marriage. To support his contention, the learned counsel has
relied upon the judgments of the Supreme Court in the cases
of Mandar Deepak Pawar vs. State of Maharashtra and
anr., 2022 LiveLaw (SC) 649, Rajnish Singh @ Soni vs.
State of UP and another, 2025 LiveLaw (SC) 279, Biswa
Jyoti Chatterji vs. State of West Bengal and anr., 2025
LiveLaw (SC) 404, and Ravish Singh Rana vs. State of
Uttarakhand and anr. (Criminal Appeal No.2438 of 2025
decided on 28th April, 2025), and the judgments of this Court
in the cases of Rajinder Singh vs. State & others, 2013(4)
JKJ[HC] 209 and Riyaz Hussain vs. UT of J&K & anr.,
2025 (2) JKJ[HC] 144.
19) There can be no dispute to the legal proposition that
unless it is shown from the facts and circumstances of a
particular case that the accused had extended the promise
of marriage to a victim with a view to obtain her consent for
sexual intercourse, the offence under Section 69 of BNS
would not be constituted. It is also a settled proposition of
law that the consent given by the prosecutrix to sexual
intercourse with a person with whom she is deeply in love
on a promise that he would marry her on a later date cannot
be said to be given under a misconception of fact.
CRM(M) No.216/2025 c/w
20) However, there is no straightjacket for determining as
to whether consent given by the prosecutrix to sexual
intercourse is voluntary or whether it is given under a
misconception of fact. Reference in this regard is made to the
ratio laid down by the Supreme Court in Biswajyoti
Chaterjee's case (supra). Ultimately, it is the surrounding
circumstances of a particular case that would determine as
to whether the prosecutrix had given her consent to the
accused to enter into a sexual intercourse under a
misconception of fact or it was done by her voluntarily.
21) The Supreme Court has in the case of Yedla Srinivasa
Rao vs. State of AP, (2006) 11 SC 615, held that it is always
a matter of evidence whether the consent was obtained
willingly or the consent has been obtained by holding out a
false promise which the accused never intended to fulfil. The
Court went on to observe that if from the facts the court
comes to the conclusion that the consent has been obtained
under misconception and the accused persuaded the girl
that he would marry her then in that case it can always be
said that the consent was not obtained voluntarily but under
a misconception of fact and that the accused right from the
beginning never intended to fulfil the promise and such
consent cannot condone the offence.
CRM(M) No.216/2025 c/w
22) With the aforesaid legal position in mind, let us now
advert to the facts of the present case as are emanating from
the material placed on record by the parties. In the
impugned FIR, respondent No.2 has alleged that she
accepted the invitation of petitioner No.1 in the year 2021 in
the month of March and petitioner No.1 visited her
residence. She further states that she funded the education
of petitioner No.1 and they came close to each other,
whereafter petitioner No.1 extended the promise of marriage
to her. She goes on to allege that petitioner No.1 exploited
her by meeting her at various places giving her impression
that, for all practical purposes, she is his wife. She further
alleges that petitioner No.1 cohabited with her, both at his
residence at Anantnag and also at Delhi, several times by
prevailing upon her that she is his wife. These allegations
levelled by respondent No.2 find support from the WhatsApp
chats exchanged between the two. A perusal of the
WhatsApp chats exchanged between the two would reveal
that petitioner No.1 has been expressing not only his love for
respondent No.2 but he has been time and again assuring
her that he would enter into wedlock with her. The chats
reveal that at one point in time, respondent No.2 showed her
reluctance to enter into sexual relationship with petitioner
No.1 but petitioner No.1 assured her that if he is going to
CRM(M) No.216/2025 c/w
marry, he would be marrying her only and nobody else. In
another chat, petitioner No.1 assures respondent No.2 that
he would be entering into a wedlock with her in the month
of April. The chats reveal that petitioner No.1 got infuriated
when respondent No.2 informed him that her mother is
looking for a bridegroom for her. All these chats, prima facie,
show that petitioner No.1 has been extending promises of
marriage to respondent No.2 from time to time and
extracting sexual favours from her. In fact, petitioner No.1 in
his petition has candidly admitted that he was intending to
marry respondent No.2 but subsequent developments
persuaded him not to go for marriage with respondent No.2.
23) The question whether petitioner No.1 had genuine
reasons for backing out from the promise of marriage and
whether the screenshots of chats placed on record by
respondent No.2 are genuine, are matters which can be
determined only after investigation of the case. Similarly, the
question whether the promise of marriage extended by
petitioner No.1 to respondent No.2 was only for the purposes
of extracting sexual favours from her, is also a matter which
requires to be investigated. At this stage and in these
proceedings, this Court cannot hold a min-trial to ascertain
the veracity of the respective stands taken by the parties.
CRM(M) No.216/2025 c/w
24) The Supreme Court in the case of Madhavrao Jiwaji
Rao Scindia & Anr. Etc vs Sambhajirao Chandrojirao
Angre & Ors. (1988) 1 SCC 692. has held that when a
prosecution at the initial stage was asked to be quashed, the
test to be applied by the court was as to whether the
uncontroverted allegations as made prima facie establish the
offence. It has been held that it is also for the court to take
into consideration any special features which appear in a
particular case to consider whether it was expedient and in
the interest of justice to permit a prosecution to continue.
25) In the present case, as already stated, the investigation
of the case is still at inception and the facts are hazy.
However, the allegations made in the complaint, which are
supported by the material on record, clearly go on to indicate
that cognizable offences are made out against petitioner
No.1. Therefore, it would not be appropriate for this Court to
scuttle the investigation of the case so far as it pertains to
petitioner No.1 as the same would amount to stifling a
genuine prosecution. The same is impermissible in law.
26) Learned counsel for the petitioners has also argued
that the impugned FIR has been lodged by respondent No.2
as a counterblast to the complaint filed by petitioner No.1
against her. It is true that the impugned FIR has been lodged
CRM(M) No.216/2025 c/w
by respondent No.2 after the notice in the complaint filed by
petitioner No.1 against her was issued by District Mobile
Magistrate, Anantnag. However, it is to be noted that
respondent No.2, as per petitioners own case, had gone to
the house of petitioner No.1 on 27.02.2025 where she
protested the action of petitioner No.1 in resiling from the
promise of marriage, which led the Auqaf Committee of the
Village to intervene in the matter. It is quite possible that it
is petitioner No.1 who, as a counterblast to the aforesaid
action of respondent No.2, proceeded to file complaint
against her with a view to pre-empt lodging of FIR by her
against him. The contention of learned counsel for the
petitioners in this regard is, therefore, without any merit.
27) So far as the case of petitioners No.2 and 3 is
concerned, the same stands on a different footing. There are
no allegations in the impugned FIR to the effect that they are
privy to the sexual relationship between petitioner No.1 and
respondent No.2. It is the case of the complainant that she
has cohabited with petitioner No.1 at his residence and also
at Delhi several times. She has nowhere alleged that
petitioners No.2 and 3 have aided and abetted petitioner
No.1 in these activities. 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 against
CRM(M) No.216/2025 c/w
them nor do they establish any link between the alleged
activities of petitioner No.1 and petitioners No.2 and 3. The
continuance of prosecution as against petitioners No.2 and
3 would, therefore, be an abuse of process of law. Thus, the
same deserve to be quashed at this stage itself.
28) That takes us to the prayer of petitioner No.1 for grant
of bail in anticipation of his arrest. The Supreme Court has
laid down the principles governing grant of bail in
anticipation of arrest in Constitution Bench judgment in the
case of Gurbaksh Singh Sibbia and ors vs. State of Punjab,
(1980) 2 SCC 565, which has been consistently followed by
the Supreme Court in various other judgments like
Siddharam Satlingappa Mhetre v. State Of Maharashtra
And Ors, (2011) 1 SCC 694, Constitution Bench judgement
in the case of Sushila Aggarwal and others vs. State (NCT
of Delhi) and another, (2020) 5 SCC 1, and Pratibha
Manchanda and another vs. State of Haryana and
another, (2023) 8 SCC 181.
29) After analysing the legal position set out by the
Supreme Court in the aforesaid judgments, it comes to the
fore that the grant or refusal of bail in anticipation of arrest
is a matter of discretion and there are several factors which
are required to be taken into consideration while taking a
CRM(M) No.216/2025 c/w
call on an application for grant of anticipatory bail. These
factors cannot be exhaustively enumerated and the
combined effect of such factors has to be taken into account
by the court while granting or refusing anticipatory bail. The
general considerations with which the Court has to be
guided while considering the bail application are the nature
and gravity of offence, the role attributed to the applicant
and the facts peculiar to a particular case. In short, the
Court has to strike a delicate balance between the right to
liberty of an applicant and need for a free and fair
investigation. Thus, the attending circumstances of a
particular case are crucial in determining the question as to
whether or not an applicant/accused is entitled to
anticipatory bail.
30) In the light of the aforesaid principles, let us now advert
to the facts of the present case. As already stated, there is
material on record to suggest that petitioner No.1 has
extended promise of marriage to respondent No.2 which he
has failed to fulfil. There is also material on record to prima
facie show that while extracting sexual favours from
respondent No.2, petitioner No.1 has assured her that he
would be entering into wedlock with her. Thus, it is not a
case where the allegations against petitioner No.1 are
frivolous in nature but it is a case where there is prima facie
CRM(M) No.216/2025 c/w
material to support the allegations made in the FIR. The
investigation of the case is still at its inception and the
allegations made against petitioner No.1 are very serious in
nature.
31) It is alleged that petitioner No.1 has sexually exploited
respondent No.2/complainant over a long period of time by
engaging her on social media and assuring her that he would
be entering into wedlock with her. Granting bail in
anticipation of arrest to petitioner No.1 at this stage would
not only have an adverse impact on the investigation of the
case but it will also have a discouraging effect upon the
prosecutrix who, it appears, has fought against all odds to
prosecute petitioner No.1.
32) With a view to ascertain the veracity of the allegations
made by the complainant against petitioner No.1, the
Investigating Agency will have to seize the electronic gadgets
including cell phone of petitioner No.1 and analyse the data
and in case petitioner No.1 is granted bail in anticipation of
his arrest, it is likely that he would succeed in destroying the
electronic evidence. The same will have an adverse impact
on the investigation of the case. Therefore, grant of bail to
petitioner No.1 at this stage would thwart the course of
investigation.
(V).Conclusion:
33) For what has been discussed hereinabove, it is ordered
that:
(I) 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.
(II) Bail application bearing Bail App No.62/2025
filed by petitioner No.1 is dismissed.
(III) 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
(Sanjay Dhar)
Judge
Srinagar,
30.05.2025
"Bhat Altaf-Secretary"
Whether the order is reportable: YES
CRM(M) No.216/2025 c/w
Bail App Nos.62 and 72 of 2025
