Jammu & Kashmir High Court – Srinagar Bench
Xxxx vs Afaq Ali Khan on 23 April, 2026
S. No. 01
Suppl Cause List
IN THE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Bail App. No. 101/2024
XXXX
...Appellant(s)/Petitioner(s)
Through: Ms. Ayshia Zaheer, Advocate
Vs.
Afaq Ali Khan
...Respondent(s)
Through: Mr. Shariq Riyaz Jan, Advocate
Mr. Bikram Deep Singh, Dy. AG for R-2
CORAM:
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
ORDER
23.04.2026
1. The petitioner, who is the complainant/victim before the Trial Court, has
invoked the jurisdiction of this Court under Section 483(2) of the BNSS
to assail the bail order dated 03.08.2024 passed by Additional Sessions
Judge, Fast Track Court, Budgam the trial court in case FIR No.
272/2023 registered under Sections 376 and 506 IPC. By virtue of the
impugned order, the accused/respondent, who was facing trial for the
aforesaid offences, and had earlier been granted interim bail on
16.12.2023, has been enlarged on regular bail by making the interim bail
absolute.
2. It is the specific case of the petitioner that, having regard to the grave
nature and seriousness of the offence, the Trial Court has failed to
appreciate the severity of the allegations, which inherently carry
profound social stigma and inflict severe mental trauma upon the victim.
It is contended that such factors ought to have weighed heavily against
the grant of bail. It is further submitted that the accused/respondent is an
influential person and a habitual offender, as reflected in the charge-
sheet, and thus there existed a strong likelihood of misuse of liberty.
3. The petitioner further contends that despite the existence of strong prima
facie evidence, the learned Trial Court has proceeded to pass a cryptic
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and non-reasoned order. The statement of the victim recorded on oath
under Section 164 Cr.P.C., duly corroborated by medical evidence and
supported by an independent witness, attracted the statutory presumption
under Section 114-A of the Evidence Act against the accused. However,
the Trial Court, by misapplication of settled principles of law, has
overlooked these crucial aspects and erroneously granted bail.
4. Placing reliance on the judgment reported as 2025 INSC 877, it has been
argued that grant of bail by way of a cryptic order, bereft of cogent
reasons, results in perversity of justice. It is urged that when a person
accused of a grave and heinous offence is enlarged on bail without due
application of mind, it not only undermines the confidence of the victim
but also shocks the conscience of the Court and has a deleterious impact
on society at large.
5. Briefly stated, the case of the prosecution before the Trial Court is that
the accused/respondent was a neighbour of the petitioner/victim and had
been persistently following her and attempting to establish contact. It is
alleged that the respondent, by falsely representing himself as a well-
settled individual employed in a reputed company and portraying himself
as a decent person, extended a proposal of marriage to the victim. Relying
upon such representations, and without disclosing the same to her
parents, the victim developed trust in the respondent and consented to a
relationship, which subsequently resulted in repeated sexual encounters
over a period of time.
6. It is further alleged that during the subsistence of the relationship, the
respondent clandestinely recorded the intimate acts without the
knowledge or consent of the victim. Upon gaining suspicion, the victim
confronted the respondent, who attempted to allay her concerns by
stating that the videos were “cherished memories” of their relationship
and assured her that the same would be deleted. Trusting his assurances,
the victim continued the relationship.
7. However, on one occasion, the victim gained access to the respondent’s
mobile phone and discovered that he had recorded numerous such videos
not only with her but also depicting sexual acts with several other
women, which were further stored in his laptop. Upon confrontation, the
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respondent allegedly resorted to blackmailing the victim and demanded
an amount of ₹10,00,000/- in lieu of deleting the said videos.
8. The prosecution further alleges that the respondent was habitually
engaged in luring innocent women on the false pretext of marriage and
thereafter sexually exploiting them. Disturbed by these revelations, the
victim disclosed the entire incident to her parents and lodged a complaint
on 23.09.2023, which culminated in the registration of FIR No. 272/2023
and the arrest of the respondent. Pursuant to his disclosure, a pen drive,
mobile phone, and laptop were recovered.
9. As per the prosecution, forensic examination of the seized electronic
devices revealed multiple recorded instances of sexual encounters
involving the respondent and different women. Two such victims, cited
as PW-2 and PW-8, came forward to support the prosecution case and
were examined under Section 161/164 Cr P C.
10. On the aforesaid basis, it is the case of the prosecution that the
respondent, by extending a false promise of marriage and
misrepresenting his intentions, induced the victim into a physical
relationship and thereafter exploited her by recording intimate videos and
using the same as a tool for coercion and blackmail. It is alleged that the
respondent systematically targeted and exploited women in a similar
manner, and threatened them with the publication of such videos in case
of non-compliance. Accordingly, the respondent has been charge-sheeted
for offences punishable under Sections 376 and 506 IPC.
11. On the other hand, opposing the submissions advanced on behalf of the
petitioner, counsel for the respondent has contended that the entire
prosecution case is false, fabricated, and an abuse of the process of law.
It is submitted that the petitioner had voluntarily entered into the
relationship and had consented to the alleged sexual acts out of her own
free will. Rather, it is contended that the petitioner herself had been
exploiting the respondent and had, at one point in time, induced him to
transfer certain amounts into her bank account.
12. It is further argued that the Trial Court has rightly exercised its judicial
discretion in granting bail to the respondent, who continues to enjoy the
presumption of innocence until proven guilty. The impugned order,
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therefore, does not suffer from any illegality or perversity warranting
interference by this Court.
13. Refuting the allegation of the petitioner that her consent was obtained
under a misconception of fact, learned counsel submits that such a plea
is devoid of any factual and legal foundation. It is contended that the
prosecution has yet to establish, by way of cogent evidence, that the
respondent had indulged in any form of deception or false promise. In
the absence of proof of such foundational facts, no adverse inference can
be drawn against the respondent at this stage. It is thus urged that the
Trial Court, having duly considered the material on record, has rightly
granted bail, and the same does not call for any interference in the
exercise of jurisdiction under Section 483(2) BNSS.
14. During the course of arguments, it was fairly conceded by counsel for
both the parties that at the time of consideration of the bail application,
formal charges had not yet been framed against the respondent. However,
it was not in dispute that the statement of the victim had already been
recorded under Section 164 Cr.P.C., wherein she had furnished a detailed
account of the manner in which she was allegedly induced and trapped
into entering into sexual relations with the respondent.
15. It has further been pointed out, that the respondent had initially been
granted interim bail by the Trial Court on 16.12.2023. The said order was
subsequently challenged by the petitioner before this Hon’ble Court,
which came to be disposed of with a direction to the Trial Court to decide
the bail application expeditiously, while granting liberty to the petitioner
to approach this Court again in the event of an adverse order.
16. Pursuant thereto, the Trial Court, vide order dated 03.08.2024, made the
interim bail absolute, which has now been assailed in the present petition.
It has also been brought on record that during the subsistence of interim
bail, the respondent came to be formally charged for offences under
Sections 376 and 506 IPC on 29.07.2024.
17. Thus, it is evident that at the time when the respondent was granted bail,
the material available before the Trial Court was primarily in the nature
of the charge-sheet and the statement of the victim recorded under
Section 164 Cr.P.C., and the Court had yet to undertake the judicial
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exercise of determining whether a prima facie case existed for the
purpose of framing of charge against the respondent.
18. I have given my thoughtful consideration to the submissions advanced at
the Bar. It is a well-settled principle, consistently reiterated in various
pronouncements of the Hon’ble Supreme Court, that while considering
the grant of bail, particularly in cases involving serious and heinous
offences, the Court is required to take into account several relevant
factors, including the nature and gravity of the accusations, the manner
in which the alleged offence has been committed, the specific role
attributed to the accused, his criminal antecedents, the likelihood of the
accused tampering with prosecution witnesses or repeating the offence,
the possibility of his absconding or evading the course of justice, and the
overall impact of release on bail on the fair administration of justice. In
this regard, reference may be made to Kalyan Chandra Sarkar vs.
Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528, , Masroor vs.
State of Uttar Pradesh(2009) 14 SCC 286, Anil Kumar Yadav vs.
State (NCT of Delhi)(2018) 12 SCC129, , and Mahipal vs. Rajesh
Kumar(2020) 2 SCC118., wherein the parameters governing grant of
bail have been elaborately laid down.
19. Equally, it is trite that once bail has been granted, the same ought not to
be cancelled in a mechanical manner. However, it is equally well settled
that an order granting bail, if found to be arbitrary, perverse, or bereft of
reasons, is always amenable to interference by a superior court. This
principle has been reiterated in Ajwar vs. Waseem. (2024) 10 SCC 768.
20. In a recent judgment of the Hon’ble Apex Court, relied upon by learned
counsel for the petitioner, reported as (2025) INSC 877, the accused, who
was facing prosecution for offences under Section 376 IPC read with
Sections 3/4 of the Immoral Traffic (Prevention) Act and relevant
provisions of the SC/ST Act, had been granted bail by the High Court,
which was challenged by the victim before the Hon’ble Supreme Court.
In that case, while the Special Court had initially rejected the bail
application, the High Court proceeded to grant bail; however, the
Hon’ble Supreme Court, upon examining the matter, emphasized that in
cases involving grave offences, the grant of bail must be supported by
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cogent reasons reflecting due application of mind, failing which such
orders are liable to be set aside.
21. In the backdrop of the aforesaid legal position and upon a careful
consideration of the material placed on record, this Court is of the
considered opinion that the impugned order dated 03.08.2024 passed by
the Trial Court granting bail to the respondent cannot be sustained in the
eyes of law.
22. A perusal of the impugned order reveals that the Trial Court has failed to
advert to the material aspects of the case, particularly the detailed
statement of the victim recorded under Section 164 Cr.P.C., the nature of
allegations involving inducement on the false promise of marriage, and
the serious accusations of exploitation coupled with blackmail through
electronic means. The order, being cryptic in nature, does not reflect due
application of mind to the gravity of the offence or the manner in which
the alleged crime has been committed.
23. This Court further finds that the allegations against the respondent are
not only grave but disclose a systematic pattern of conduct, as is evident
from the recovery of electronic devices and the forensic material
indicating similar acts with other victims. The existence of supporting
witnesses, prima facie corroborating the prosecution case, further
strengthens the accusation at this stage. These crucial aspects, which go
to the root of the matter, have not been duly considered by the Trial Court
while granting bail.
24. Moreover, the stage at which bail came to be granted assumes
significance. At the relevant time, the Trial Court was yet to undertake
the exercise of framing of charge, and the material available on record,
including the statement under Section 164 Cr.P.C., prima facie disclosed
the commission of serious offences. The subsequent framing of charges
on 29.07.2024 further reinforces the existence of sufficient grounds to
proceed against the respondent. In such circumstances, the grant of bail,
without a proper evaluation of the material, amounts to a misapplication
of settled principles governing bail. In view of the law laid down in
Mahipal vs. Rajesh Kumar and Ajwar vs. Waseem supra an order
granting bail which is found to be perverse, arbitrary, or passed without
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due consideration of relevant factors is liable to be set aside by a superior
court.
25. The contention raised on behalf of the respondent that the relationship
between the parties was consensual and, therefore, does not fall within
the ambit of an offence, is also devoid of merit at this stage. The concept
of “consent” in law cannot be examined in a vacuum, especially where
the allegations, prima facie, disclose that such consent was obtained on
the basis of deception or misconception of fact. The statement of the
victim recorded under Section 164 Cr.P.C., coupled with the surrounding
circumstances brought on record, indicates that the respondent had
allegedly induced the victim into the relationship on the false promise of
marriage, which, if established, would vitiate the consent in terms of
settled legal principles.
26. At the stage of consideration of bail, the Court is not required to conduct
a meticulous examination of evidence or record definitive findings on the
issue of consent. It is sufficient if the material on record discloses a prima
facie case. In the present matter, the allegations of inducement, coupled
with subsequent acts of recording intimate videos and alleged blackmail,
lend credence to the prosecution version that the consent, if any, was not
free and voluntary but was obtained under a misconception of fact. The
plea of consensual relationship, therefore, raises disputed questions of
fact which can only be adjudicated upon during trial on the basis of
evidence led by the parties, and cannot be a determinative factor at this
stage to justify the grant of bail, particularly when the material on record
prima facie points otherwise.
27. It has been argued on behalf of the respondent that since the trial is
already underway and the accused enjoys the presumption of innocence
until proven guilty; no useful purpose would be served by remanding him
back to custody. However, this submission does not merit acceptance in
the facts and circumstances of the present case. The presumption of
innocence, though a fundamental principle of criminal jurisprudence,
cannot be invoked in isolation so as to eclipse other equally important
considerations governing the grant or cancellation of bail, particularly in
cases involving serious offences. The continuation of trial by itself does
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not dilute the requirement that the order granting bail must withstand the
test of legality, reasonableness, and proper application of judicial mind.
28. Where the order granting bail is found to be perverse, cryptic, or passed
in disregard of material evidence and settled principles of law, the mere
fact that the trial has commenced cannot be a ground to sustain such an
order. The paramount consideration remains whether the discretion to
grant bail has been exercised judiciously and in accordance with law. If
the answer is in the negative, as in the present case, the accused cannot
claim continuation of liberty on the sole premise of the ongoing trial.
Hence, when a person accused of a grave and heinous offence is enlarged
on bail without due application of mind, it not only undermines the
confidence of the victim but also shocks the conscience of the Court and
has a deleterious impact on society at large. Accordingly, this Court holds
that the impugned order suffers from non-application of mind and
perversity, and has resulted in miscarriage of justice, the same, therefore,
warrants interference.
29. Consequently, the present petition is allowed. The impugned order dated
03.08.2024 passed by the Additional Sessions Judge, Fast Track Court,
Budgam, is hereby set aside. The bail granted to the respondent stands
withdrawn, he is committed to custody and directed to surrender before
the Trial Court forthwith, failing which it shall take appropriate coercive
steps to secure his presence in accordance with law. It is, however, made
clear that any observations made herein are confined to the adjudication
of the present petition and shall not be construed as an expression on the
merits of the case during trial. He may, however, renew his prayer for
bail after the material witnesses have been examined during trial; any
such application shall be considered and decided in accordance with law.
(SANJAY PARIHAR)
JUDGE
Srinagar
23.04.2026
“Imtiyaz”
Imtiyaz Ul Gani
I attest to the accuracy and
authenticity of this document
29.04.2026 10:37 8|Page