Sr. No. 33 

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU  

Bail App No. 206/2021 

CrlM No. 1690/2021 

CrlM No. 1691/2021 

in 

CRM (M) No. 395/2021 

CrlM No. 1279/2021 

Reserved on : 08.02.2022 

Pronounced on : 21.02.2022 

Ashok Kumar …..Applicant(s) Through: Mr. Neeraj Gupta, Advocate 

Vs 

Union Territory of Jammu and Kashmir .…. Respondent(s) 

Through: Mr. Sumeet Bhatia, GA 

Mr. Sudesh Sharma, Advocate for  

complainant  

Coram: HON’BLE MR. JUSTICE MOHAN LAL, JUDGE 

JUDGMENT 

21.02.2022 

1. Provisions of Section 439 of the Code of Criminal Procedure have  been pressed into service by applicant/accused for grant of  anticipatory bail in his favor on the grounds averred in the  application to the fact, “that he has been falsely implicated in FIR  No. 0155 of 2021 registered by Police Station Rehmbal for the  commission of offences under Section 376 IPC for the alleged  story by complainant/victim that she came in contact with  applicant in the month of March, 2016 through social media via  facebook and whatsapp whereby applicant started texting her on  regular basis and told her that he really likes her and wanted to be  friend with her, to which complainant/victim flatly refused and  informed the applicant that he should talk to her parents for the  

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marriage, applicant insisted the victim to become friend with him  and time and again tried to make contact with her on whatsapp,  she (victim) kept ignoring the advances of the applicant believing  that eventually the applicant will back out from following her, but  unfortunately in the month of March, 2017 the applicant again  approached the victim/complainant and made a proposal that he  really likes her and want to marry her, whereby the applicant kept  on approaching the victim with same proposal and made promises  that he will provide all the love and care of the husband to her and  even approached the family of the victim and told them that he  wants to marry her, whereby she (complainant/victim) believing  the promise made by the applicant accepted his proposal and both  of them decided to enter into relationship, whereby applicant  forced her to have physical relation with him to which  complainant/victim objected as they are not married but she got  convinced by the applicant as he will definitely marry her within  short span of time, she (victim) did not read the malafide intention  and believing on his false assurances and the applicant made  sexual relations with her many times, she consented to sexual  relations with the applicant under the misconception of fact that  applicant will marry her, that in the month of April i.e. on 13th of  April, 2021, she tried to contact the applicant on mobile phone  and inquired about when he will marry her but the  applicant/accused avoided talking to her about the topic and  started ignoring her under one pretext or the other, and on 14th of  April 2020 the applicant called her on mobile phone and told her  that when he will come back to Udhampur he will marry her, but  the applicant flatly refused and openly told her that he made false  promises about marrying, and also threatened her that she will  face dire consequences if she ever tried to call him;” that the  applicant is a respectable citizen of the society and is commanding  

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good reputation in the society and is an Army Personnel, presently  posted at Jodhpur Rajasthan as Sepoi (GDR) and is having good  service records, the story so projected in the FIR shows that the  same is created only to falsely implicate the applicant and to  extract money from him which is totally false, fictitious and  absurd, applicant has not committed any offence in case and has  been trapped by the police, his image and reputation will be  dashed to grounds and his service career will also be put to stake,  applicant undertakes to abide by all the terms and conditions if the  court deems fit at the time of granting bail, prayer has been made  for grant of anticipatory bail and its confirmation.  

2. This court vide it‟s order dated 27.07.2021 on the application of  applicant/accused, granted interim bail to him subject to  furnishing of two sureties by him in the sums of Rs. 50,000/- with  the directions that he will appear before the Investigating Officer  and shall not contact with any prosecution witness.  

3. On 14.09.2021, Sh. Sudesh Sharma, learned counsel for  complainant/prosecutrix filed an application for  cancellation/revocation of interim bail granted to applicant dated  27.07.2021, wherein it has been specifically contended that  applicant/accused is continuously harassing and threatening the  prosecutrix after the grant of bail, and moreso on 29.09.202, the  applicant/accused came at the residence of the prosecutrix and  threatened her of dire consequences and pressurized her and other  family members to withdraw the FIR, whereby the prosecutrix,  her family members and other neighbors have sworn affidavits to  show that applicant/accused has threatened them. The  applicant/accused through his counsel filed objections to the  application of the prosecutrix for cancellation/revocation of  interim bail by contending therein that applicant/accused has not  contacted any of the prosecution witnesses as well as the  

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prosecutrix, and it is the prosecutrix who is hell bent and  harassing the applicant, the affidavits filed by the prosecutrix  make mention of different dates which is 29.07.2021, whereas  they have deposed their affidavits in the month of September,  2021 thereby waiting for a long period of more than one month,  and in their affidavits they have not made mention of any  neighbors which creates shadow on their story, only to harass and  humiliate the applicant.  

4. Sh. Sumeet Bhatia, learned GA, respondent of UT of J&K has  opposed the grant of anticipatory bail to the applicant by filing  objections and contending therein, that accused is involved in  heinous offence of rape whereby by deceitful means he has  obtained the consent of the prosecutrix on the promise of  marriage, inducing her to get into relationship with him which  amounts to commission of offence of rape, there is cogent  evidence and material against accused in the form of statements of  prosecutrix recorded under Section 164 Cr.P.C which directly  connects accused with the commission of crime, when the accused  is involved in heinous crime there is every possibility he will skip  out of the bail; the complainant/victim has admitted of her close  intimacy with accused and has filed the complaint after four years  when the accused refused to marry her which by no stretch of  imagination is a delay for alleging of FIR, the mind of  complainant/victim was impregnated with an idea and hope of  marriage with accused who distanced himself where after  complainant/prosecutrix was left with no option but to resort to  the available means of lawful ways in lodging FIR against the  accused wherein she has specifically narrated that her consent was  obtained in lieu of the promise of marriage.  

5. Sh. Neeraj Gupta, learned counsel for the applicant/accused while  seeking bail in anticipation of arrest in favor of the accused has  

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vehemently argued, that applicant/accused and the prosecutrix  remained for a long duration of about four years in their  consensual physical relation, there is no allegations by the  complainant/prosecutrix that a false promise of marriage was  made by the applicant/accused only with the purpose of  establishing physical relation, it appears from the facts that it is  simply a case of courtship and consensual physical relation  between accused and the prosecutrix who are two grownup  persons which did not end up in tying nuptial knot. It is argued,  that if the parties develop physical intimacy during their courtship  and the boy later on resiles from promise to marry, the same  cannot be brought within the scope of Section 376 RPC and the  same would amount an act of promiscuity on the part of  prosecutrix, the allegations in the FIR alleged by the prosecutrix  are not that of forcible commission of sexual intercourse with the  prosecutrix, the allegations are that the accused committed  repeated sexual intercourse with the prosecutrix for about  four/five years under the pretext or promise that he will marry her,  but has now backed out and nowhere in the FIR or the statements  of the prosecutrix recorded under Section 164 Cr.P.C, it has been  alleged by the prosecutrix that even false promise of marriage was  made by the accused only with the purpose of establishing  physical relation with her. It is vehemently argued, that there is  distinction between „breach of promise‟ and not fulfilling a false  promise, the applicant/accused and prosecutrix knew each other  since 2016 and were intimate since 2017 where they establish  their sexual relations, the allegations in the FIR do not on their  face indicate that the promise by the applicant/accused was false,  or that the prosecutrix engaged in sexual relations on the basis of  the said promise, there is no allegations in FIR that when accused  promised to marry the victim/prosecutrix, it was done in bad faith  

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or with intention to deceive, accused‟s failure in 2021 to fulfill his  promise made in 2016-17 cannot be construed that the promise  itself was false, even if the facts set out in the FIR and in the  statement of prosecutrix recorded under Section 164 Cr.P.C  accepted in totality, no offence under Section 375 of the IPC has  occurred, therefore, offence of rape is not established against the  appellant and the strong case for anticipatory bail is made out by  him. To support his arguments, learned counsel for  applicant/accused has relied upon the rulings reported in (i) 2018  2 Crimes (HC) 264 of Jammu and Kashmir High Court in  Case No. 561-A Cr.P.C No. 08/2018 and M.P. No. 61/2018  titled Tanveer Iqbal – Petitioner versus State and others – Respondents decided on 06.03.2018 and (ii) 2019 0 Supreme  (SC) 901of Supreme Court of India in Case No. Criminal  Appeal No. 1165 of 2019 titled Pramod Suryabhan Pawar – Appellant versus The State of Maharashtra and another – Respondents decided on 21.08.2019

6. Sh. Sumeet Bhatia, learned G.A and Sh. Sudesh Sharma, learned  counsel for the prosecutrix, per contra have vehemently opposed  the bail of applicant/accused by portraying arguments, that the  delay in lodging the FIR cannot be used as ritualistic formula for  doubting the prosecution case and discarding the same on grounds  of delay in lodging the first information report, the delay is not  fatal for prosecution as the courts cannot overlook the fact that in  sexual offences delay in lodging of the FIR can be due to variety  of reasons particularly the reluctance of the prosecutrix or her  family members to go to the police and complain about the  incident which surely concerns the reputation of the prosecutrix  and the honor of her family which could be a blot/stigma on her  face, and therefore, only after giving it a cool thought, the  complaint of sexual offences is generally lodged. It is argued, that  

 7 Bail App No. 206/2021  

applicant/accused has committed sexual intercourse with the  prosecutrix on false promise of marriage by deceitful means and  he obtained the consent of the prosecutrix, the relationship of  accused with the prosecutrix was not consensual but obtained by  exercising deceit and it is only on refusal of accused to marry the  prosecutrix the question of making criminal complaint arose, and  as long as commitment of marriage subsisted relationship between  parties could not be describes as offence of rape. It is strenuously  argued, that the offence of rape is grave and heinous offence and  is against the society, the general interest of society outweighs the  individual interest of the applicant/accused, therefore, the  anticipatory bail to the accused may be rejected. To support their  arguments, learned counsel for respondent have relied upon the  decisions reported in the judgments of Supreme Court of India  in case (i) Criminal Appeal No. 549 of 2005 titled Dildar Singh  – Appellant vs. State of Punjab – Respondent decided on  20.07.2006 (ii) Criminal Appeal No. 616 of 1985 titled State of  Punjab – Appellant vs. Gurmit Singh and others – Respondent decided on 16.01.1996 (iii) Criminal Appeal No.  601 of 2008 titled Karthi @ Karthick – Appellant vs. State,  Tamil Nadu – Respondent decided on 01.07.2013 (iv) Criminal  Appeal No. 629 of 2019 titled Anurag Soni – Appellant vs.  State of Chhattisgarh – Respondent decided on 09.04.2019.  

7. Heard and considered.  

8. I have thoroughly scanned the ratio‟s of the judgments and the  principle of law deduced therein cited by the learned counsel for  the parties. FIR No. 0155 of 2021 has been registered by Police  Station Rehmbal for the commission of offences under Section  376 IPC against applicant/accused on 14.07.2021. For the sake of  clarity, the crux of FIR in question is reproduced as under:  

 8 Bail App No. 206/2021  

“Brief facts of the case are that this time complainant  

namely Neha Devi D/o Sh. Beli Ram R/o Ward No. 01,  

Megani Tehsil and Distril Udhampur accomopied with  

Ashu Devi, Panch Ward no. 01 Sansoo came in this P/S  

and produced a written complaint in English and the  

contents of the said complaint is given as :- To the  

Incharge/Station House Officer Police Station Rehambal,  

Teshil and District – Udhampur, Jammu and Kashmir,  

UT. Subject:- Application for registration of FIR against  

Ashok Kumar son of Sh. Raj Kumar Resident Manwal,  

Majalta, District-Udhampur, Jammu and Kashmir, UT of  

for commission of offence punishable under section 376  

IPC and other relevant provisions of law. Sir,  

Respectfully it is submitted as under:- 1. That the  

accused came in contact with the applicant through  

FACEBOOK and started text messaging the applicant  

and messaging on whatsapp in the month of March 2016.  

02.That the accused started texting the applicant on  

regular basis and told her that the accused really likes the  

applicant and wanted to be friend with her to which the  

applicant flatly refused and informed the accused person  

that she is the resident of village Megani and talk to my  

parents for my marriage. 03. That the accused insisted the  

applicant to become friend with him and time and again  

tried to make contact with the applicant and followed her  

on social media and kept on texting her on whatsapp. The  

applicant kept on ignoring the advances of the accused  

person believing that eventually he will back out from  

following and contacting the applicant. 04.That  

unfortunately in the month of March 2017 the accused  

person again approached the applicant and made a  

proposal that the accused really liked the applicant and he  

wants to marry her and the accused kept on approaching  

her with the same proposal and made promises the he  

will provide all the love and care of a husband to her and  

even approached the family of the applicant and told  

them that he wants to marry the applicant. 05. That after  

some time the applicant believing the promises made by  

the accused person accepted his proposal and they both  

decided to enter into relationship. The accused persons  

forced to have the physical relation with him to which the  

applicant objected to as they were not married to which  

the accused convinced the applicant that he will  

definitely solemnize the marriage with her in a short  

time. The applicant did not read the malafide intention  

and believing on his false assurances, the accused made  

 9 Bail App No. 206/2021  

sexual relations with the applicant many times. The  

applicant consented to sexual relations with the accused  

under the misconception to sexual relations with the  

accused under the misconception of facts that the accused  

will marry her. 06. That even the family members of  

accused as well as the family members of the applicant  

were aware of the fact that accused person will marry the  

applicant. 07. That in the month of 13 April 2021, the  

applicant tried to contact the accused person on mobile  

phone and inquired about when he will marry to the  

applicant, the accused person avoiding talking to her  

about the topic and started ignoring her under on one  

pretext or another. It is pertinent to mentioned here that  

the accused avoid attending the phone calls of the  

applicant and slowly ignoring the applicant citing  

excuses like he is very busy with his job and many time  

he would switch off his cell phone just to avoid the  

applicant. 08. That 14th April 2021 the accused called the  

applicant on her mobile phone and when he will come  

back to Udhampur and solemnize the marriage with her  

to which the accused flatly refused and openly told her  

that he made false promises about marrying the applicant  

and further acknowledged that he never had any intention  

to marry the applicant right from the beginning and  

openly threatened the applicant that she will face dire  

consequences if she ever tried to call or contact the  

accused. 09. That after hearing these words from the  

applicant, the applicant went into the state of shock and  

felt shattered, deceived and cheated by the accused  

person who had no right to play with the life of the  

applicant on account of false promises just to satisfy his  

nefarious designs. 10. That the applicant/victim who  

bonafidely believed on the promises of the marriage  

made by the accused person and consented to the  

physical relations based on misconception of facts with  

regard to the promise of marriage and suffered at the  

hands of accused person. 11. That the accused has  

committed a heinous crime against the applicant by  

playing with the dignity of the applicant which has  

offended my self-esteem and dignity which has left a  

permanent scar on the honour of the applicant by  

cheating and deceiving the applicant. The accused has  

committed the crime against the applicant not only  

physically but mentally, emotionally and morally also.  

Keeping in the view above mentioned facts it is therefore  

requested to your good self that an FIR may kindly be  

 10 Bail App No. 206/2021  

registered against the accused person for commission of  

offence punishable under section 276 IPC and other  

relevant provision of law and the accused be punished  

severely for the heinous crimes committed by the  

accused against the applicant. Yours sincerely Miss Neha  

Devi daughter of Sh. Beli Ram Resident of Ward no-1,  

Village: Megani, Panchayat – Sansoo, Tehsil and  

District: Udhampur, Jammu and Kashmir, UT Mobile:  

9086187436, Dated: 14-07-2021. Copy of the: i) Senior  

Superintendent of Police, Udhampur, SD in English of  

complainant. As per the contents of said complaint  

offence under Section 376 IPC has been made out. In this  

regard, an instant case under relevant sections stands  

registered in this P/S. Copy of the FIR will be submitted  

to concern Court accordingly and Investigation of the  

case entrusted to PSI Mohd. Shafi Raina EXJ 196304  

under the guidance of ASI Gopal Chand EXJ 875780. As  

the said case is special in nature which is 1st of the  

locality/area, 2nd of its own kind and nature and total 45th 

special reported case of the year. Special report- “A” will  

be submitted separately to concern quarters.”  

9. Bare reading of the contents of the FIR depict that there is not an  iota of whisper that applicant/accused has made false promise or  the applicant/accused engaged in sexual relations with the victim  on the basis of the false promise. There is also no allegation in  FIR that when applicant/accused promised to marry the  complainant/victim, it was done in bad faith or with intention to  deceive her. From the contents of FIR, it appears that there is a  failure on the part of applicant/accused to fulfill his promise of  marriage made in the year 2017 which he could not fulfill in 2021.  

10. In the case law reported in AIR 2019 (Pramod Suryabhan  Pawar vs State of Maharashtra and another), Hon‟ble Apex  Court while setting aside impugned judgment and the order of the  High Court of Judicature at Bombay dated 07 February 2019 and  quashing the FIR, in Para 20 of the judgment at Page 11 observed  as under:  

 11 Bail App No. 206/2021  

“The allegations in the FIR do not on their face indicate  

that the promise by the appellant was false, or that the  

complainant engaged in sexual relations on the basis of  

this promise. There is no allegation in the IFR that when  

the appellant promised to marry the complainant, it was  

done in bad faith or with the intention to deceive her. The  

appellant‟s failure in 2016 to fulfill his promise made in  

2008 cannot be construed to mean the promise itself was  

false. The allegations in the FIR indicate that the  

complainant was aware that there existed obstacles to  

marrying the appellant since 2008, and that she and the  

appellant continued to engage in sexual relations long  

after their getting married had become a disputed matter.  

Even thereafter, the complainant travelled to visit and  

reside with the appellant at his postings and allowed him  

to spend his weekends at her residence. The allegations in  

the FIR belie in the case that she was deceived by the  

appellant‟s promise of marriage. Therefore, even if the  

facts set out in the complainant‟s statements are accepted  

in totality, no offence under section 375 of the IPC has  

occurred.” 

Ratio of the judgment (supra) makes the legal proposition  abundantly clear, that when there is no allegation in the FIR that  the promise made by the accused was false and only on the pretext  that promise to marry did not mature into marriage, the physical  relationship of the accused with the victim does not amount to  offence of rape within the meaning of Section 375 of IPC.  

11. In another case law relied by learned counsel for  applicant/accused titled Sonu @ Subash Kumar versus State of  Uttar Pradesh and another in Criminal Appeal No. 233/021  (arising out of SLP (Crl) No. 11218 of 2019), Hon‟ble the  Supreme Court while quashing the charge sheet and setting aside  the impugned judgment and order of the High Court of Judicature  at Allahabad dated 26th September, 2019, in paras 08 & 11 of the  judgment held as under:  

 12 Bail App No. 206/2021  

“……..8.The contents of the FIR as well as the  

statement under Section 164 of Cr.P.C leave no manner  

of doubt that, on the basis of the allegations as they  

stand, three important features emerge:  

(i) The relationship between the appellant and the  

second respondent was of a consensual nature;  

(ii) The parties were in the relationship for about a  

period of one and a half years; and  

(iii) Subsequently, the appellant had expressed a  

disinclination to marry the second respondent which led  

to the registration of FIR.  

11. Bearing in mind the tests which have been  

enunciated in the above decision, we are of the view  

that even assuming that all the allegations in the FIR are  

correct for the purposes of considering the application  

for quashing under Section 482 of Cr.P.C, no offence  

has been established. There is no allegation to the effect  

that the promise to marry given to the second  

respondent was false at the inception. On the contrary,  

it would appear from the contents of the FIR that there  

was a subsequent refusal on the part of the appellant to  

marry the second respondent which gave rise to the  

registration of the FIR. On these facts, we are of the  

view that the High Court was in error in declining to  

entertain the petition under Section 482 of Cr.P.C on  

the basis that it was only the evidence at trial which  

would lead to a determination as to whether an offence  

was established.”  

Ratio of the judgment (supra) further makes a legal proposition  abundantly clear, that when there is no allegation that the promise  to marry was given by the accused to the respondent was forced at  the inception, no offence can be made out where the relationship  between the parties are of consensual nature for years together and  even the accused has not expressed his inclination to marry the  prosecutrix.  

12. In 2018 (2) Crimes (HC) 264 titled Tanveer Iqbal vs State  and others, Hon‟ble High Court of J&K while quashing the FIR  registered under Section 376 IPC on the pretext that the accused  

 13 Bail App No. 206/2021  

was alleged to have been committing sexual intercourse with  prosecutrix under the pretext to marry her and finally refused, in  Para 08 of the judgment held as under:  

“….8. Clearly, the allegation in the complaint filed by  

the prosecutrix is not that of forcible commission of  

sexual intercourse with the prosecutrix by the  

petitioner. Going by the statement in the complaint,  

there was rather a long duration consensual physical  

relation between the two. The allegation, however, is  

that the petitioner committed repeated sexual  

intercourse with the prosecutrix for 4 to 5years under  

the pretext or promise that he will marry her but has  

now backed out. It has not been alleged by the  

prosecutrix even that the false promise of marriage was  

made by the petitioner only with the purpose of  

establishing physical relation with her.” 

Ratio of the judgment (supra) further makes the legal proposition  abundantly clear that when there is a long duration of consensual  physical relation between the two under the pretext or promise  that the accused will marry her but now backed out and it has not  been alleged even by the prosecutrix that false promise of  marriage was made for establishing physical relation, it is thus  simply a case of courtship and consensual physical relation  between the two grownup which even did not end up tying nuptial  knot is not a case of commission of rape. From the ratios of the  judgments (supra) relied by learned counsel for the  applicant/accused, the law is well settled that promise to marriage  whereby the two adults engaged in physical sexual relationship is  a case of courtship and love affair, and by no stretch of  imagination would come within the definition of Section 375 of  IPC, and only when there is a case of false promise made with the  purpose of obtaining consent of woman for sexual favor, the same  amounts to misrepresentation and consent so obtained cannot  exonerate a person from criminal liability for commission of rape.  

 14 Bail App No. 206/2021  

While applying the ratios of judgments (supra) to the facts of the  case in hand, it is discernable that from the contents of FIR it does  not depict that applicant/accused made false promise to marriage  to complainant/prosecutrix and obtained her consent for the  purpose of committing sexual intercourse with her. Contents of  FIR demonstrates that applicant/accused though has agreed to  marry the prosecutrix and both of them were involved in physical  sexual relations and it is thus simply a case of courtship and  consensual physical relation which in my considered view does  not amount to commission of rape.  

13. In AIR 2006 (SC) 3084 titled Dildar Singh vs. State of Punjab  relied by learned counsel for respondent, it has been held that the  delay in lodging FIR cannot be fatal and a ground for disbelieving  the case of prosecution. In AIR 1996 (SC) 1393 titled State of  Punjab vs. Gurmit Singh and others, relied by learned counsel  for the respondent, Hon‟ble the Supreme Court held, that the  delay in lodging FIR in sexual offences is not fatal. In AIR 2013  (SC) 2645 titled Karthi @ Karthick vs. State, Rep. by  Inspector of Police, Tamil Nadu, relied by learned counsel for  the respondent, Hon‟ble the Supreme Court has held, that sexual  intercourse by a man with a woman on a false promise of  marriage is not consensual sex and the relationship between them  amount to offence of rape. In AIR 2019 (SC) 1857 titled Anurag  Soni vs. State of Chhattisgarh, also relied by learned counsel for  the respondent, the Division Bench of Hon‟ble the Supreme Court  has held, that sexual relationship on the false promise of marriage  amounts to rape.  

14. From the facts of the case, that there is not a whisper in the FIR  or even in the statement of the prosecutrix recorded under Section  

 15 Bail App No. 206/2021 

164 Cr.P.C that applicant/accused gave false promise to the  prosecutrix to marry her and on that assurance/pretext he  established sexual relationship with her. The judgments (supra)  relied upon by learned counsel for respondent in the facts and  circumstances of the case are distinguishable and inapplicable to  the case in hand. On the contrary, the judgments relied upon  learned counsel for the applicant/accused fully apply to the facts  of the case in hand.  

15. In view of the settled position of the law as discussed above,  applicant/accused has carved out a strong case of anticipatory bail  in his favor. The anticipatory bail granted to applicant/accused  vide order dated 27.07.2021 is made absolute subject to the  conditions that applicant/accused if required by the investigating  agency shall appear before the Investigating Officer during the  course of investigation and shall not threaten or intimidate any  prosecution witnesses.  

16. The bail application (Bail App No. 206) is disposed of  accordingly. 

CRM (M) No. 395/2021 

Learned counsel for the parties shall adduced detailed arguments on  the next date of hearing.  

List on 25.02.2022.  

(Mohan Lal) 

 Judge 

Jammu  

21.02.2022 

Manan

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