AFR

Neutral Citation No. - 2025:AHC:51693

Court No. - 65

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9861 of 2025

Applicant :- Arun Kumar Mishra

Opposite Party :- State of U.P.
Counsel for Applicant :- Nitin Chandra Mishra,R. B. Tripathi,Sr.
Advocate
Counsel for Opposite Party :- G.A.

Hon'ble Krishan Pahal,J.

1. List has been revised.

2. Heard Sri Anup Triwedi, learned Senior Advocate assisted by Sri

Nitin Chandra Mishra, learned counsel for the applicant and Sri Devendra
Singh, learned counsel for the informant as well as Sri Sunil Kumar,
learned A.G.A. for the State and perused the record.

3. Applicant seeks bail in Case No.3227/IX/24 (State vs. Arun Kumar

Mishra), arising out of Case Crime No.0035 of 2024, under Sections 323,
376, 420, 504, 506 I.P.C., Police Station- Mahila Thana, District- Banda,
during the pendency of trial.

PROSECUTION STORY:
4. The informant joined the ,
of Yes Bank as Relationship Manager. The applicant is stated to be an
account holder in the said bank. He is stated to have offered the
victim/informant the job of his personal assistant in his company for a
salary of Rs.75,000/- per month alongwith accommodation and other
perks. The informant joined the company of the applicant after resigning
from the bank on 2.1.2024.

5. On 12.1.2024 at about 09:30 p.m., the applicant is stated to have

suddenly come to the house of the informant alongwith cold coffee and
stated that he has got a huge profit in the company, as such, he shall give
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her gifts. After consuming the said coffee, the victim is stated to have got
intoxicated, as such, the applicant disrobed her completely and committed
rape with her as she could not resist being intoxicated by the said spiked
coffee. The applicant is even stated to have video recorded the said act
and subsequently started blackmailing her.

6. On 13.1.2024, the applicant took the victim by flight to Mumbai

and got a room booked in Taj Hotel on the basis of her Aadhar Card. On
15.1.2024 the applicant took her to somewhere else and got her to sign on
some papers and conducted Saptapadi and added vermilion to her
forehead. On 16.1.2024 the duo returned to Delhi and the rape and
unnatural offence continued thereafter.

7. On 17.2.2024, the applicant is stated to have come to the house of

her aunt at , district Banda and committed rape with her by
showing an indecent video of her and asked her to come alongwith him to
Delhi where he shall marry her as he has divorced his wife and she was
forced to go alongwith him to Delhi.

8. On 20.2.2024, the informant told the applicant that she was

pregnant. On 4.3.2024, she was informed by the first wife of the applicant
that he already has married three women prior to the informant and had
children from each of them.

9. The victim was again forced by the applicant to come to Golden

Tulip Hotel, Lucknow on 28.3.2024 and was raped again. The applicant is
stated to have hit the victim, thereby, leading to termination of her
pregnancy. The applicant is even stated to have taken possession of all the
educational documents in original alongwith her clothes and ornaments
and had promised to marry her in January, 2024.

10. The informant is stated to have gone to her parental home on

29.4.2024 to prepare for the said marriage, but subsequently, the applicant
is stated to have refused to comply with the said promise of marriage
telephonically and informed her that he had forged certain documents and
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had shown her marriage to have been solemnized at Arya Samaj Temple.
The applicant is even stated to have retained her salary.

ARGUMENTS ON BEHALF OF APPLICANT:

11. The applicant is absolutely innocent and has been falsely implicated
in the present case.

12. The FIR is delayed by about six months and there is no explanation
of the said delay caused. The victim failed to report the matter at the time
of first consensual relationship established in January, 2024.

13. The applicant had challenged the first information report before this
Court by filing Criminal Misc. Writ Petition No.10952 of 2024, whereby
he was granted interim protection vide order dated 1.7.2024.

14. The victim has given contradictory statements U/s 161 & 164
Cr.P.C. to the version of the FIR.

15. The Investigating Officer has exonerated the applicant of offences

of Sections 313 and 377 I.P.C., as such, the prosecution story stands
falsified, as there is no evidence on record regarding miscarriage and
unnatural offence.

16. It is clear that victim was in relationship with the applicant. The
Whatsapp chats between them have been filed as Annexure-5 to the
affidavit filed with bail application. The victim had visited several places
with the applicant, namely, Mumbai, Shirdi and stayed at several hotels
booked jointly in the name of applicant and herself. The details of the
journey including air tickets and hotel bookings have been filed as
Annexure-6 to the affidavit filed with bail application.

17. The informant herein got instituted an FIR No.753 of 2024, under
Sections 70, 308(5), 351(3), 123 and 115(2) B.N.S. at Police Station
Kotwali Nagar, District Banda through her friend and and the
Investigating Officer was pleased to file closure report in the said case.
Although a protest petition was filed by the said informant in that case.
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18. It is true that applicant is a married person and he fell in love with
the victim and established corporeal relationship with her. The victim is a
major lady aged about 30 years and applicant is aged about 42 years, as
such, the said relationship was consensual one. It is true that the said
relationship is not legitimate, but it is not a case of rape either. The
offence may fall within the category of Section 494 I.P.C. only, which is
triable by Magistrate of First Class.

19. The instant case may fall within the category of immorality, but it
cannot be termed as penal, which implies that the act in question might be
considered unethical or wrong by societal or moral standards, but it does
not necessarily violate any law that prescribes a legal punishment.

20. The allegations that applicant had married three women earlier on
are false.

21. Several other submissions have been made on behalf of the

applicant to demonstrate the falsity of the allegations made against him.
The circumstances which, as per counsel, led to the false implication of
the applicant have also been touched upon at length.

22. The applicant has no other criminal antecedent to his credit except
one case instituted against him at district Banda at the behest of informant
in the instant case. The applicant is languishing in jail since 8.1.2025. The
applicant is ready to cooperate with trial. In case, the applicant is released
on bail, he will not misuse the liberty of bail

23. Much reliance has been placed on paragraphs 12 & 13 in the

judgment of the Supreme Court passed in Sheikh Arif vs. The State of
Maharashtra and Another1, which read as under:-

"12) If this material, which is a part of the investigation papers, is

perused carefully, it is obvious that the physical relationship
between the appellant and the second respondent was consensual,
at least from 2013 to 2017. The fact that they were engaged was
admitted by the second respondent. The fact that in 2011, the

1 2024 INSC 70
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appellant proposed her and in 2017, there was engagement is

accepted by the second respondent. In fact, she participated in the
engagement ceremony without any protest. However, she has
denied that her marriage was solemnised with the appellant.
Taking the prosecution case as correct, it is not possible to accept
that the second respondent maintained a physical relationship only
because the appellant had given a promise of marriage.
13) Thus, in our view, the continuation of the prosecution in the
present case will be a gross abuse of the process of law. Therefore,
no purpose will be served by continuing the prosecution."
24. Reliance has also been placed on paragraphs 34 & 35 in the judgment
of the Supreme Court passed in Rajnish Singh @ Soni vs. State of U.P.
and Another2, which read as under:-

“34. It is trite that there is a distinction between rape and

consensual intercourse. This Court in Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675 differentiated between a mere breach
of promise and not fulfilling a false promise and held that an
accused will only be liable if the Courts concludes that his
intentions are mala fide and he has clandestine motives. The
relevant extract is reproduced hereinbelow: -
"21. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. Consent
is an act of reason, accompanied by deliberation, the
mind weighing, as in a balance, the good and evil on each
side. There is a clear distinction between rape and
consensual sex and in a case like this, the court must
very carefully examine whether the accused had actually
wanted to marry the victim, or had mala fide motives,
and had made a false promise to this effect only to
satisfy his lust, as the latter falls within the ambit of
cheating or deception. There is a distinction between the
mere breach of a promise, and not fulfilling a false
promise. Thus, the court must examine whether there was
made, at an early stage a false promise of marriage by the
accused; and whether the consent involved was given
after wholly understanding the nature and consequences
of sexual indulgence. There may be a case where the
prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused, and not
solely on account of misrepresentation made to her by

2 2025 INSC 308

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the accused, or where an accused on account of

circumstances which he could not have foreseen, or
which were beyond his control, was unable to marry her,
despite having every intention to do so. Such cases must
be treated differently. An accused can be convicted for
rape only if the court reaches a conclusion that the
intention of the accused was mala fide, and that he had
clandestine motives.
...
24. Hence, it is evident that there must be adequate
evidence to show that at the relevant time i.e. at the
initial stage itself, the accused had no intention
whatsoever, of keeping his promise to marry the victim.
There may, of course, be circumstances, when a person
having the best of intentions is unable to marry the victim
owing to various unavoidable circumstances. The "failure
to keep a promise made with respect to a future uncertain
date, due to reasons that are not very clear from the
evidence available, does not always amount to
misconception of fact. In order to come within the
meaning of the term "misconception of fact", the fact must
have an immediate relevance". Section 90 IPC cannot be
called into aid in such a situation, to pardon the act of a
girl in entirety, and fasten criminal liability on the other,
unless the court is assured of the fact that from the very
beginning, the accused had never really intended to
marry her."
(emphasis supplied)
35. It is, therefore, clear that the accused is not liable for the
offence of rape if the victim has wilfully agreed to maintain sexual
relations. The Court has also recognised that a prosecutrix can
agree to have sexual intercourse on account of her love and
passion for the accused."
25. Reliance has also been placed on paragraphs 6, 7 & 8 in the
judgment of the Supreme Court passed in SLP (Crl.) No.1889/2024
(Nitin B. Nikhare vs. The State of Maharashtra and Another), which
read as under:-

6. This Court in a catena of judgments has held that the mere fact
that physical relations were established pursuant to a promise to
marry will not amount to a rape in every case. In order for the
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offence of rape to be made out, two conditions need to be satisfied

i.e. that the promise of marriage was made by the accused solely
with a view to obtain consent for sexual relations without having
any intention of fulfilling said promise from the very beginning,
and that the false promise of marriage had a direct bearing on the
prosecutrix giving her consent for sexual relations. [See: Pramod
Suryabhan Pawar v. The State of Maharashtra and Ors. (2019) 9
SCC 608; Mahesh Damu Khare v. The State of Maharashtra and
Ors. 2024 SCC OnLine SC 347]
7. From a perusal of the record, it is clear that this was a case of a
consensual relationship from the beginning. Even if the case of the
prosecutrix is accepted, it does not appear that the initial promise
to marry was in bad faith. It was 3 only the subsequent
circumstances that prevented fulfilment of alleged false promise to
marry. Resultantly, the relationship turned sour which has given
rise to the present FIR. Further, in view of the material on record,
we do not see this as a case where provisions of Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act can be
attracted.
8. Hence, the entire criminal proceedings initiated against the
appellant are nothing but an abuse of the process of law. In our
opinion the High Court should have exercised its inherent power
under Section 482 of the Code of Criminal Procedure to quash the
proceedings."
ARGUMENTS ON BEHALF OF STATE/OPPOSITE PARTY:
26. It is argued by learned counsel for the informant that the applicant
is already married to three other ladies and is a casanova and is used to
luring different women into consensual relationships. The statements of
two other ladies in addition to his wife have been recorded by the
Investigating Officer who have categorically stated that applicant was
married to one XXXX and subsequent to it married two other ladies and
had children from each of them.

27. The applicant is a rich person and he has misused his money and
clout, thereby, ruined the life of the victim/informant in the instant case.

28. The victim is about 25 years old and applicant had forged the
marriage certificate purported to have been solemnized at Arya Samaj
Mandir, Greater Noida, Gautam Buddha Nagar. This Court had ordered
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for a detailed inquiry against the persons running the said temple, as such,
the applicant is not entitled for bail, having forged the said documents of
marriage.

29. It is further argued that in Case Crime No.753 of 2024 instituted

against the applicant at police station Kotwali Nagar, district Banda, the
C.J.M. concerned was pleased to order for further investigation in the case
and observed that complete investigation undertaken earlier was tainted.

CONCLUSION:
30. In the present case, it is imperative to bring to the fore the changing
dynamics and depleting standards of sexual relationships in contemporary
society. The victim, with full and conscious knowledge of the applicant's
previous marital history-having been married thrice before, chose to
establish a corporeal relationship with him. This relationship, while
mutual and consensual during its subsistence, did not conform to the
traditionally accepted institution of marriage or any form of legally
recognized union. While the emotional and romantic dynamics may not
appear traditionally polyamorous, the relationship is consensual and
involves two mature individuals the alleged victim, approximately 25
years old, and the applicant, about 42.

31. This case is reflective of a broader societal shift, where the sanctity
and solemnity once associated with intimate relationships have seen a
marked decline. The prevalence of transient and uncommitted
relationships, often formed and dissolved at will, raises critical questions
about individual responsibility and the misuse of legal provisions,
especially when such relationships turn sour. It is increasingly observed
that personal fallouts and emotional discord are being given a criminal
colour, through the invocation of penal laws, particularly in the aftermath
of failed intimate relationships.

32. The instant FIR, instituted after the relationship between the
applicant and the victim fell apart, appears to be a product of such
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emotional aftermath rather than a bona fide grievance of criminal

wrongdoing. The timing and circumstances surrounding the filing of the
complaint suggest a retaliatory motive rather than a genuine pursuit of
justice.

33. Not all socially or ethically questionable actions warrant legal

intervention. It also reflects a foundational principle in jurisprudence —
the law does not enforce all aspects of morality.

34. The Supreme Court in case of Pramod Suryabhan Pawar vs. State
of Maharashtra and Another3 and Ansaar Mohammad vs. State of
Rajasthan and Another4 has stated that entering into any kind of
corporeal relationship with a person on the false promise to marry cannot
be termed as rape.

35. In light of the judgement of the Supreme Court passed in Niranjan

Singh and another vs Prabhakar Rajaram Kharote and others 5, this
Court has avoided detailed examination of the evidence and elaborate
documentation of the merits of the case as no party should have the
impression that his case has been prejudiced. A prima facie satisfaction of
case is needed but it is not the same as an exhaustive exploration of the
merits in the order itself.

36. The Supreme Court in Prabhakar Tewari Vs. State of U.P. and
another6 has observed that pendency of several criminal cases against an
accused itself cannot be a basis for refusal of bail, if otherwise his case of
bail is made out.

37. The well-known principle of "Presumption of Innocence Unless

Proven Guilty," gives rise to the concept of bail as a rule and
imprisonment as an exception.

3 2019 (9) SCC 608

4 2022 SCC OnLine SC 886
5 AIR 1980 SC 785
6 2020 (11) SCC 648
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38. A person's right to life and liberty, guaranteed by Article 21 of the

Indian Constitution, cannot be taken away simply because the person is
accused of committing an offence until the guilt is established beyond a
reasonable doubt. Article 21 of the Indian Constitution states that no one's
life or personal liberty may be taken away unless the procedure
established by law is followed, and the procedure must be just and
reasonable. The said principle has been recapitulated by the Supreme
Court in Satender Kumar Antil Vs. Central Bureau of Investigation and
Ors.7.

39. Reiterating the aforesaid view the Supreme Court in the case of
Manish Sisodia Vs. Directorate of Enforcement8 has again emphasised
that the very well-settled principle of law that bail is not to be withheld as
a punishment is not to be forgotten. It is high time that the Courts should
recognize the principle that "bail is a rule and jail is an exception".

40. Learned AGA could not bring forth any exceptional circumstances
which would warrant denial of bail to the applicant.

41. It is settled principle of law that the object of bail is to secure the
attendance of the accused at the trial. No material particulars or
circumstances suggestive of the applicant fleeing from justice or
thwarting the course of justice or creating other troubles in the shape of
repeating offences or intimidating witnesses and the like have been shown
by learned AGA.

42. Considering the facts and circumstances of the case, submissions

made by learned counsel for the parties, the evidence on record, taking
into consideration that it is also admitted to both the parties that Sections
313 & 377 I.P.C. have been deleted coupled by the fact that FIR is
delayed by about five months and the victim being a well qualified lady,
the case law referred and without expressing any opinion on the merits of

7 2022 INSC 690

8 2024 INSC 595
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the case, the Court is of the view that the applicant has made out a case
for bail. The bail application is allowed.

43. Let the applicant- Arun Kumar Mishra involved in

aforementioned case crime number be released on bail on furnishing a
personal bond and two sureties each in the like amount to the satisfaction
of the court concerned subject to following conditions.

(i) The applicant shall not tamper with evidence.

(ii) The applicant shall remain present, in person, before the Trial
Court on dates fixed for (1) opening of the case, (2) framing of
charge and (3) recording of statement under Section 313
Cr.P.C./351 B.N.S.S. If in the opinion of the Trial Court absence of
the applicant is deliberate or without sufficient cause, then it shall
be open for the Trial Court to treat such default as abuse of liberty
of bail and proceed against him in accordance with law.
44. In case of breach of any of the above conditions, it shall be a
ground for cancellation of bail. Identity, status and residence proof of the
applicant and sureties be verified by the court concerned before the bonds
are accepted.

45. It is made clear that observations made in granting bail to the

applicant shall not in any way affect the learned trial Judge in forming his
independent opinion based on the testimony of the witnesses.

Order Date :- 9.4.2025

Vikas
(Justice Krishan Pahal)

Digitally signed by :-
VIKAS VERMA
High Court of Judicature at Allahabad