MUKESH SAHANIversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 482 BNSS No.
                        - 9660 of 2026

Mukesh Sahani
                                                            .....Applicant(s)
                                   Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)      : Akash Kumar Nishad, Ashutosh Kumar
                                Shukla
Counsel for Opposite Party(s) : G.A.

Court No. - 72
                 HON'BLE VIVEK KUMAR SINGH, J.

1. Heard Sri Ashutosh Kumar Shukla, learned counsel for the applicant,
learned A.G.A for the State and perused the record.

2. The present application has been filed on behalf of the applicant in
Case Crime No. 678 of 2024, under Sections 115(2), 69 of B.N.S., Police
Station- Gulariha, District- Gorakhpur, with a prayer to grant him
anticipatory bail.

3. Learned counsel for the applicant submits that the applicant is
absolutely innocent and has been falsely implicated in the present case; he
has nothing to do with the alleged offence in spite of that the police are
trying to arrest the applicant. It is further contended by the learned
counsel that a false and frivolous first information report was lodged by
the father of the victim, wherein it is alleged that the victim was subjected
to rape on the false promise of marriage. It is admitted case of the victim
that she was a major girl, about 21 years of age and that she had been in
touch with the applicant for the last seven years and during this period
they enjoyed a consensual relationship. It is next submitted that the FIR is
a result of broken relationship and the same was lodged when the
relationship turned sour between them. The version of the victim kept
changing and does not inspire much confidence to prosecution case.

4. Further submission was made by the learned counsel that ocular
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version is not corroborated with medical evidence. It is also submitted
that throughout the prolonged period of seven years, the victim kept
completely quite about the alleged sexual abuse, meted out to her, by the
applicant until she learnt that the applicant was not going to marry her.
Additionally, the long gap of seven years between the first alleged act of
sexual intercourse and continued relationship for seven years, till the
filing of the first information report makes it clear that the matter pertains
to a love affair. When the relationship turned sour, the FIR was lodged by
the victim due to ulterior motives. A case of consensual relationship has
been converted into a criminal offence. It is further submitted that the
marriage between the applicant and the victim was solemnized on
05.08.2024 and a marriage registration certificate was issued on
07.08.2024, therefore, there was no false promise of marriage on the part
of the applicant. It is further contended that arrest of the applicant was
stayed by the Division Bench of this Court vide order dated 27.08.2024 in
Crl. Misc. Writ Petition No. 14743 of 2024. Since the applicant was not
arrested during course of investigation, therefore, there is no requirement
of custodial interrogation of the applicant. The applicant has no criminal
antecedent.

5. Learned counsel for the applicant lastly contended that the applicant
undertakes to cooperate during trial and shall appear as and when required
by the court concerned. It has also been stated that, in case the applicant is
granted anticipatory bail, he shall not misuse the liberty of bail, shall
cooperate with the trial, and shall abide by all the conditions that may be
imposed by the court.

6. On the other hand, learned A.G.A. opposed the application for
anticipatory bail, however, he does not dispute the factual aspect.

7. I have heard the rival submissions of both sides and perused the record.

8. In Aman Preet Singh v. CBI, (2022) 13 SCC 764, the Hon'ble Apex
Court has held that :

     "11. A reading of the aforesaid shows that it is the guiding principle for a
     Magistrate while exercising powers under Section 170CrPC which had
     been set out. The Magistrate or the Court empowered to take cognizance
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     or try the accused has to accept the charge-sheet forthwith and proceed
     in accordance with the procedure laid down under Section 173CrPC. It
     has been rightly observed that in such a case the Magistrate or the Court
     is required to invariably issue a process of summons and not warrant of
     arrest. In case he seeks to exercise the discretion of issuing warrants of
     arrest, he is required to record the reasons as contemplated under
     Section 87 Cr.P.C that the accused has either been absconding or shall
     not obey the summons or has refused to appear despite proof of due
     service of summons upon him. In fact the observations in sub-para (iii)
     above by the High Court are in the nature of caution.

     12. In sofar as the present case is concerned and the general principles
     under Section 170Cr.P.C, the most apposite observations are in sub-para
     (v) of the High Court judgment in the context of an accused in a non-
     bailable offence whose custody was not required during the period of
     investigation. In such a scenario, it is appropriate that the accused is
     released on bail as the circumstances of his having not been arrested
     during investigation or not being produced in custody are itself sufficient
     to entitle him to be released on bail. The rationale has been succinctly set
     out that if a person has been enlarged and free for many years and has
     not even been arrested during investigation, to suddenly direct his arrest
     and to be incarcerated merely because charge-sheet has been filed would
     be contrary to the governing principles for grant of bail. We could not
     agree more with this."

9. In the case of Mahesh Damu Khare Versus State of Maharashtra
and Another, (2024) 11 Supreme Court Cases 398, the Hon'ble
Supreme Court has made observation that where physical relationship is
maintained for a prolonged period knowingly by the woman, it cannot be
said with certainty that the said physical relationship was purely because
of the alleged promise of marriage. A woman may have reasons to have
physical relationship other than the promise of marriage like, personal
liking for the male partner.

10. In case of Prashant Versus State of NCT of Delhi, (2025) 5
Supreme Court Cases 764, the Hon'ble Supreme Court has observed that
it is inconceivable that the complainant would continue to meet the
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accused or maintain a prolonged association or physical relationship with
him in the absence of voluntary consent on her part.

11. Furthermore, the Hon'ble Supreme Court in the case of Samadhan
Versus State of Maharashtra and Another, 2025 SCC OnLine SC
2528 observed that on numerous occasions, taken note of the disquieting
tendency wherein failed or broken relationships are given the colour of
criminality. The offence of rape, being of the gravest kind, must be
invoked only in cases where there exists genuine sexual violence,
coercion, or absence of free consent. To convert every sour relationship
into an offence of rape not only trivialises the seriousness of the offence
but also inflicts upon the accused indelible stigma and grave injustice.
Such instances transcend the realm of mere personal discord. The misuse
of the criminal justice machinery in this regard is a matter of profound
concern for the judiciary already facing a heavy load and calls for
condemnation.

12. The Hon'ble Supreme Court in Rajnish Singh @ Soni Vs. State of
U.P. And Another, 2025 (4) SCC 197 held that where a woman
willingly engages in a long-term relationship with a man, fully aware of
its nature, and there is no cogent evidence to show that such relationship
was induced by a misconception of fact or a false promise of marriage
made in bad faith from the inception, the man cannot be held guilty of
rape under Section 376 of the IPC.

13. In the case of Pramod Kumar Navratna Versus State of
Chhattisgarh and Others, 2026 SCC OnLine SC 154, the Hon'ble
Supreme Court held that the Courts have to be extremely careful and
cautious in identifying the genuine cases filed under Section 376(2)(n) of
the IPC by identifying the essential ingredients to constitute the said
offence. Such genuine cases must be clearly demarcated from the
litigation that arises from the cases of consensual relationships between
consenting adults going acrimonious on account of dispute and
disagreement or a future change of mind.

14. The Hon'ble Supreme Court in the case of Ravish Singh Rana
Versus State of Uttarakhand & Anr., 2025 SCC OnLine SC 1055 has
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made observation that the two able minded adults, if maintained a long
term physical relations, then the presumption would arise that they have
voluntarily chose the consensual relationship and subsequent non-
fulfillment of promise of marriage would not attract any offence.

15. The Hon'ble Supreme Court in the case of Pramod Suryabhan
Pawar Versus State of Maharashtra And Another, (2019) 9 Supreme
Court Cases 608 held that where the promise to marry is false and the
intention of the maker, at the time of making the promise, itself was not to
abide by it, but to deceive the woman so as to convince her to engage in
sexual relations, there is a "misconception of fact" that vitiates the
woman's "consent". However, mere breach of a promise cannot be said to
be a false promise. Therefore, to establish a false promise, it would have
to be demonstrated that the maker of the promise had no intention of
upholding his word at the time of making the promise.

16. In Sonu @ Subhash Kumar Vs. State of Uttar Pradesh and
Another, (2021) 18 SCC 517, the Hon'ble Supreme Court quashed the
FIR and the proceedings upon noticing that relationship between the
accused and the victim was of consensual nature and parties were in
relationship for a period of one and a half years, and subsequently the
accused had expressed disinclination to marry the prosecutrix which led
to registration of FIR.

17. The Hon'ble Supreme Court in the case of Kunal Chatterjee vs. The
State of West Bengal & Ors., 2025 7 Supreme 489 quashed the
proceedings against accused, wherein the victim claimed herself to be a
minor girl and the FIR was lodged by her when she attained the age of
majority. It was held that promise to marriage and subsequent physical
relationship between two with consent would not amount to rape. The
judgment of Kunal Chatterjee (supra) is a short one, therefore, the entire
judgment is being reproduced hereunder:-

     "Leave granted.

     The appellant before this Court is an accused in a case under Sections
     417, 376, 506 read with Section 34 of the Indian Penal Code and Section
     6 of the POCSO Act. The complaint is the prosecutrix, who at the time of
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lodging of the FIR, was a major, but alleges that she was a minor and
was the age of 15 years, i.e. more than three years back, when the
appellant and the prosecutrix had a consensual relationship and the
complainant agreed to be in relationship after the appellant had promised
to marry her. After she became major, the appellant backed out from his
promise and the prosecutrix was humiliated by the parents of the present
appellant. Thus, the prosecutrix was constrained to file an FIR, not only
against the appellant, but also against his father, mother and uncle. This
is the case of the prosecution. The substance of the FIR is that she was
admittedly in a relationship at the time she was a minor, and she entered
into the relationship on the promise of marriage. Hence, the case of rape
is made out, and that too rape of a child.

The accused had invoked the inherent jurisdiction of the Calcutta High
Court for quashing of the FIR. As far as father, mother and uncle of the
appellant are concerned, the High Court did quash the proceedings under
Section 482 Cr.P.C. But the proceedings as against the present appellant
were kept alive. Now, the appellant is before this Court praying that
proceedings are liable to be quashed qua him as well. The learned
counsel appearing for the State and the complainant have vehemently
opposed the prayer for quashing of the proceedings.

We have heard learned counsel for the parties at length. Learned counsel
appearing for the State has relied upon the definition of 'Rape' and would
argue that the consent given by the minor is no consent and it would still
be a rape. In our considered opinion, as regarding the rape being
committed by the appellant when the prosecutrix was a minor, there is
absolutely no evidence, and definitely no forensic evidence with the
prosecution. It is only an allegation in the FIR after more than 03 years,
in order to make out a case under the POCSO Act that such an act of
rape was committed three years back when she was a minor. She also
categorically states that she consented to the act as there was a promise
of marriage by the appellant. This Court has held in several decisions
that promise to marriage and the subsequent physical relationship
between the two with consent would not amount to rape and the reasons
therein have been assigned (See: Prithivirajan v. State, 2025 SCC OnLine
SC 696, Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9
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     SCC 608, Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108).

     Under the present facts and circumstances of the case and the nature of
     the evidence with the prosecution, particularly the long delay in lodging
     the FIR itself suggest that the present criminal proceedings lodged
     against the appellant are nothing but an abuse of the process of law and
     the High Court ought to have invoked its inherent jurisdiction in the case
     of the appellant as well as it did while quashing the proceedings for the
     remaining accused. Under these circumstances, we allow this appeal and
     quash the proceedings against the appellant, as these are nothing but an
     abuse of the process of law. Pending interlocutory application(s), if any,
     is/are disposed of."

18. Therefore, from the aforesaid judgments, it is crystal clear that if the
parties were in a long-standing and continuous consensual physical
relationship, without any element of cheating from the inception, such a
relationship would not amount to rape.

19. This Court has seen in a large number of cases, that there is a growing
trend that consensual relationships going on for a prolonged period, upon
turning sour, have been sought to be criminalised by invoking criminal
jurisprudence.

20. Considering the settled principle of law regarding anticipatory bail,
submissions of the learned counsel for the parties, nature of accusation,
role of applicant and all attending facts and circumstances of the case,
without expressing any opinion on merits, and the case of the applicant is
squarely covered by the aforesaid judgments, a case for anticipatory bail
is made out.

21. Accordingly, the anticipatory bail application is allowed with
following directions:-

(i) In the event of arrest/appearance of the applicant- Mukesh Sahani
involved in aforesaid case, he shall be released on anticipatory bail till the
conclusion of trial, on his furnishing a personal bond of Rs.50,000/- with
two sureties each of the like amount to the satisfaction of the court
concerned.
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                                    (ii) The applicant shall co-operate during trial and shall report to the court
                                    concerned as and when required for the purpose of fair trial.

                                    (iii) The applicant shall not, directly or indirectly, make any inducement,
                                    threat or promise to any person acquainted with the facts of the case so as
                                    to dissuade him from disclosing such facts to the Court; and

                                    (iv) The applicant shall not leave India without the previous permission of
                                    the Court.

                                    22. In default or misuse of any of the conditions, the Public Prosecutor/
                                    Investigating Officer/ first informant-complainant is at liberty to file
                                    appropriate application for cancellation of anticipatory bail granted to the
                                    applicant, before the concerned court.



                                                                                        (Vivek Kumar Singh,J.)
                                    September 17, 2026
                                    A.P. Pandey




Digitally signed by :-
ANAND PRAKASH PANDEY
High Court of Judicature at Allahabad