Srinagar, Sept. 15, KDC: Observing that the material on record suggests the parties were deeply in love which resulted in sexual intercourse, and that a promise of marriage by an already married man is improbable, the High Court of Jammu & Kashmir and Ladakh has granted anticipatory bail to a Police Sub-Inspector (PSI) accused of rape and deceit by a lady constable.
Setting aside an earlier order of the Principal Sessions Judge, Samba, which had rejected the pre-arrest bail plea on July 23, Justice Sanjay Dhar ruled that prima facie the prolonged physical relationship between the two serving police personnel was consensual and not induced under any misconception of fact.
The case arose from FIR No. 178/2026 registered at Police Station Samba under Sections 69 (sexual intercourse by deceitful means or false promise of marriage), 83, 88 (causing miscarriage without woman’s consent), and 115(2) (voluntarily causing hurt) of the Bharatiya Nyaya Sanhita (BNS).
The complainant, a 25-year-old lady constable posted at Police Station Samba, alleged that she came into contact with PSI Vikrant Kotwal in September 2024.
According to her complaint, Kotwal proposed marriage, following which they entered into a live-in relationship and lived together openly for several months.
The complainant stated that she conceived twice during this period, and on both occasions, Kotwal persuaded her to terminate the pregnancies using pills by promising an early marriage. She later discovered through a caller identification application that Kotwal was already married with two children, a fact he had initially concealed.
However, despite learning about his existing marriage, the woman continued the relationship after Kotwal claimed his marriage was broken and assured her that he would stay with her. The two subsequently participated in a temple-style wedding ceremony solemnized by a priest on May 4, 2025. When she conceived for the third time, Kotwal allegedly blocked her calls and severed ties, prompting her to approach senior officers alleging sexual exploitation, physical assault, and forced miscarriages. A preliminary fact-finding inquiry by the Additional Superintendent of Police, Samba, recommended a full investigation, leading to the registration of the FIR.
Appearing for the petitioner, Senior Advocate K. Nirmal Kotwal argued that the allegations were the fallout of a prolonged consensual relationship between two mature adults working in the same police department. He contended that since the complainant chose to continue cohabitation and even underwent an invalid second marriage despite being fully aware that Kotwal was already married, her consent could not be said to have been obtained under a misconception of fact.
Examining the case records and the case diary, Justice Sanjay Dhar noted that the complainant was a mature, educated woman who was fully conscious of the legal invalidity of the second marriage.
“The prosecutrix, even after coming to know that the petitioner was a married person having two children, continued to have a relationship with him. She conceived for the third time. Despite being an educated, major girl aged about 25 years working in the Police Department, she entered into wedlock with the petitioner, knowing fully well that he was already a married person and that his marriage with her was not valid in the eyes of law. It is not a case where the petitioner, after concealing his marital status, induced the prosecutrix into a wedlock; rather, it is a case where both of them were aware that the petitioner was a married person and that his second marriage during the subsistence of his first marriage was not valid. Thus, prima facie it can be stated that while the petitioner developed physical relationship with the prosecutrix he did not obtain her consent on the belief that her marriage with the petitioner is valid,” the Court said.
Evaluating the probability of the alleged false promise, the Bench observed,”From the above analysis of legal position on the issue it is clear that once there is a prolonged association or physical relationship, it would be inconceivable that the same would not be consensual in nature, unless there are circumstances which indicate to the contrary… Although it would be premature for this Court to deeply analyze the material collected by the Investigating Agency in support of its case against the petitioner, yet, for the limited purpose of deciding this application, it does appear that there is force in the contention of the petitioner that the promise of marriage by a married man to a woman is improbable and that it is highly unlikely that an unmarried woman would give her consent to having a sexual relationship with a married man by believing his promise of marriage. This Court would not like to comment upon the merits of the allegations made by the prosecutrix; however, the material on record does suggest that the prosecutrix and the petitioner were deeply in love with each other, which resulted in sexual intercourse between the two.”
The High Court drew support from the Supreme Court judgment in Mahesh Danu Khare v. State of Maharashtra (2024), which cautioned against the growing trend of invoking criminal jurisprudence to penalize long-term consensual relationships that turn sour.
The Bench also rejected the prosecution’s claim that the Sub-Inspector was absconding, pointing out that he had submitted himself before the departmental inquiry officer, answered the formal questionnaire, and remained under the administrative and disciplinary control of the police department.
Allowing the petition, the High Court directed that in the event of arrest, Kotwal be released on bail upon furnishing a bail bond of Rs 50,000 with a personal bond of the like amount to the satisfaction of the Investigating Officer. The relief is subject to conditions that he cooperates with the probe, refrains from tampering with prosecution witnesses, and does not leave the territorial limits of Jammu and Kashmir without prior permission.
Senior Advocate K. Nirmal Kotwal with Advocate R. S. Isher appeared for the petitioner, Deputy Advocate General Vishal Bharti represented the Union Territory administration, and Advocate Vasudha Sharma appeared for the complainant. (KDC)
