Delhi HC refuses pre-arrest bail to doctor whose phone vanished the day he said it held the whole record

Justice Sachin Datta vacated the protection from arrest a postgraduate surgery student had held since August in a rape case, holding that joining the investigation does not earn anticipatory bail, that Section 69 BNS is only a residual provision where force is alleged, and that a missing handset and deleted Instagram chats call for custodial interrogation.

The Delhi High Court on 30 October refused anticipatory bail to a Patna postgraduate surgery student accused of raping a woman he met on Instagram, and withdrew the protection from arrest he had held since August. Justice Sachin Datta found that the phone the doctor said held the record of the relationship vanished within hours of his saying so.

The judgment also settles two points that will recur in promise-of-marriage cases under the new criminal codes. Section 69 of the Bharatiya Nyaya Sanhita is a residual provision that operates only where the act is not rape. And consent to a relationship is not consent to each act within it.

Four dates and a promise of marriage

FIR No. 0164/2026, registered at Hazrat Nizamuddin police station on 29 July 2026, invokes Sections 64(1), 69, 351(2) and 115(2) of the BNS. Section 64(2)(m), which punishes repeated rape of the same woman, was added on material collected during the investigation. The complainant is an adult.

She says the applicant, Akshay Aditya, contacted her through Instagram in the first week of November 2025 and repeatedly said he would marry her. Her complaint names four dates. On 21 December 2025, at a hotel in Vaishali, Ghaziabad, she says he forced physical relations on her despite her clear resistance.

On 8 March 2026, after meeting her at Sunder Nursery, he allegedly took her to a secluded house nearby on the pretext of introducing her to friends, overpowered her and raped her. He then banged his head against a wall, said he would die if she told anyone, pressed her to take an injection and snatched her phone.

On 11 April 2026, at the same hotel, he allegedly tried to make her swallow an unknown tablet, pushed alcohol on her and attempted intercourse. When she called a family member, he stopped her, broke a glass bottle and threatened to end his life. On 3 June 2026, in Patna, she says he assaulted and raped her again.

The FIR adds that he kept messaging and video-calling her afterwards, once showing blood flowing from his wrist on a call, to keep her from the police. After she disclosed the matter, his father and paternal uncle allegedly pressured and threatened her and her family on four dates in June and July.

Her statement under Section 183 BNSS before a magistrate supports the complaint, according to the status report of 14 September 2026. She was medically examined, though she declined an internal examination.

Transit remand refused, then pre-arrest bail refused

The applicant was taken into custody at Patna Medical College Hospital on 30 July 2026. The Chief Judicial Magistrate, Patna, declined transit remand the same day on procedural grounds: no arrest warrant or written delegation memo under Section 55 BNSS, no written grounds of arrest and no updated case diary.

He was released on a personal bond of Rs 10,000 with an undertaking to join the investigation at Hazrat Nizamuddin within 30 days, or to appear before the competent court in Delhi when directed.

His anticipatory bail plea then failed before the Additional Sessions Judge, Saket Courts, on 10 August 2026. The ASJ read the WhatsApp chats as showing he had admitted his fault to the complainant, exposing the falsity of his defence, and had projected marriage, even showing her a picture of having children with her, without intending it.

The High Court’s order of 17 August 2026 called for a comprehensive reply from the State and directed the applicant to join the investigation on 19 August with all his electronic devices. No coercive steps were to be taken till the next date, and he was barred from contacting the complainant or her family.

He says he joined the investigation on seven dates between 19 August and 10 September. On 17 September the matter was adjourned to 17 November with the interim orders continuing. The State then filed Crl.M.A. 30416/2026 to vacate the protection.

What the status report found

The State’s status report of 14 September 2026 records that during interrogation the applicant acknowledged the relationship and his meetings with the complainant on various occasions. Call detail records and location data were collected for both parties.

On the electronic evidence, the report says the applicant claimed his earlier phone was stolen on the evening of 4 June 2026, and that the investigating agency found circumstances indicating he had deleted the Instagram exchanges between the two.

Three options, hotel bookings and a snatched phone

Mr Mohit Mathur, Senior Advocate, led for the applicant with Ms Vidha Datta Makhija, Senior Advocate. Mr Hemant Mehla, APP, appeared for the State, and Ms Warisha Farasat, Senior Advocate, for the complainant.

The defence was that the relationship was consensual and known to both families. The complainant booked the hotel rooms in her own name and at her own expense, and travelled to Patna twice, on 6 February and 3 June 2026, to meet him.

In April 2026, the applicant said, she sent him a message setting out three options: to stay exclusively with him for six months, to marry within six months, or to stay with him permanently without marriage.

He denied force. He had insisted on marriage only with the consent of both families, a condition she accepted from the start, and a promise made in good faith that could not be kept is not a false promise.

As for the phone, he said unknown men assaulted him at knife-point at about 11 pm on 4 June 2026 and snatched it, and he was examined at Patna Medical College Hospital under MLC ERS No. 5770. He had since joined the investigation on several dates, undergone a potency test, taken part in pointing-out memos and surrendered his current phone.

He had also handed over his other devices and his Gmail and Instagram credentials. The Instagram chats were deleted well before the FIR, he said, and the complainant had not produced her own phone, which would hold the complete record. Custodial interrogation was therefore unnecessary.

Finally, he called the FIR a counter-blast to two informatory petitions and a criminal complaint he had filed before the CJM, Patna, against the complainant and her family, alleging extortion, blackmail and coercion.

The State and the complainant answered that this was forcible intercourse on identified dates, supported by her Section 183 statement and by CDR, location and hotel records placing him with her. They pointed to his own messages, in which he spoke of having ruined things for the two of them and destroyed a family, as something close to an admission.

The APP stressed the sudden disappearance of the phone and the Instagram deletions. How the handset was lost, how much was deleted and whether it could be recovered needed custodial interrogation.

Sumitha Pradeep v. Arun Kumar C.K. and P. Krishna Mohan Reddy v. State of Andhra Pradesh were cited for the point that joining the investigation does not by itself earn anticipatory bail.

Joining the investigation is not enough

Justice Datta began with the settled position that anticipatory bail is an extraordinary privilege for exceptional cases, citing Jai Prakash Singh v. State of Bihar, Nikita Jagganath Shetty and P. Chidambaram v. Directorate of Enforcement. Jai Prakash Singh requires a prima facie view that the applicant has been falsely implicated and will not misuse his liberty.

On the doctor’s main plea, that full cooperation made custody pointless, the judge turned to Sumitha Pradeep. There the Supreme Court called it a serious misconception that no need for custodial interrogation is itself a ground for anticipatory bail. The first question is the prima facie case, then the nature of the offence and the punishment.

P. Krishna Mohan Reddy went further, the judge noted, describing it as “preposterous as a proposition of law” (para 37) that the absence of a need for custody suffices for pre-arrest bail. Even then the court must weigh the whole case the State puts up.

Cooperation under an interim order also does not foreclose a later need for custody, especially where the investigation then throws up specific circumstances requiring confrontation and recovery. Citing State v. Anil Sharma, the judge added that questioning a suspect shielded by a pre-arrest order tends to become a ritual.

Why Section 69 does not soften Section 64

What weighed heavily with the court was the nature of the accusation: forcible intercourse on three identified dates, 21 December 2025, 8 March 2026 and 3 June 2026, plus an attempt on 11 April 2026. This was not merely a case of sex induced by a false promise of marriage.

The judge set out the Pramod Suryabhan Pawar v. State of Maharashtra test: a promise of marriage vitiates consent only if it was false when made, given in bad faith, never meant to be kept, and directly linked to the woman’s decision. But where consent itself is denied on identified occasions, that question does not arise.

Section 69 BNS, which punishes intercourse by deceit or on a promise of marriage made without intending to keep it, applies by its own words only where the act does not amount to rape. It is a residual provision. Its presence in the FIR beside Section 64 does not dilute the specific allegation of force.

Even if the relationship was consensual and the promise sincere, the complaint describes forced intercourse within that relationship. Pointing to Explanation 2 to Section 63 BNS, which defines consent as unequivocal voluntary agreement to the specific sexual act, the judge held that consent to a relationship “is not tantamount to consent to each act within it” (para 47).

The offences are grave: Section 64(1) carries a minimum of ten years’ rigorous imprisonment, extending to life, and Section 64(2)(m) carries the same minimum. The judge also noted Section 120 of the Bharatiya Sakshya Adhiniyam, which presumes absence of consent in a Section 64(2) prosecution once intercourse is proved and the woman testifies that she did not consent.

A phone that vanished within hours

On the prima facie case, the judge found the electronic material collected so far supported material parts of the complainant’s account. The applicant did not dispute being with her on the material dates, though for 8 March he denied the incident near Sunder Nursery and has not identified where the two went afterwards.

CDR, location and hotel records corroborated his presence. His own messages were consistent with her version. The hotel bookings, the Patna trips and the three-options message showed at most that the two were in a relationship, which nobody disputed; they did not answer the allegation of force on specific dates.

The counter-blast argument did not dent the prima facie case either. Whether the Patna complaints were pre-emptive, or the FIR was driven by motive, was for investigation and trial. The judge cited CBI v. Santosh Karnani on the balance between liberty and a free investigation when there is more than a needle of suspicion.

The evidentiary value and context of the chats and audio recordings on both sides were for trial, not a bail hearing. The judge drew on the court’s February 2026 decision in Mo. Ammar v. State, which refused anticipatory bail in a rape case despite cordial messages because incomplete chats could not be tried at that stage.

Then the phone. In his Saket bail application, the applicant had pleaded that, exasperated by threats, he told the complainant he had preserved the entire electronic record of their relationship on his phone and would use it to defend himself.

The very next paragraph of that application said that shortly after, around 11 pm on 4 June 2026, unknown men assaulted him, threatened him with a knife and snatched the phone. He suggested the attack was engineered by the complainant or her family.

Justice Datta was unimpressed. The only supporting document came from the applicant’s own hospital: a registration slip of 5 June 2026 at 10.45 am, about eleven hours later, recording an alleged physical assault and the patient as referred by self. No police complaint about a knife-point snatching is on record, and no step to trace the phone.

A WhatsApp exchange of 6 June, in which the complainant asked whether he had got his phone, showed only that she had been told of its loss. The whole story of the lost handset, the judge said, “does not inspire credibility, to say the least” (para 58).

The device that, by his own averment, held the entire record became unavailable within hours of his saying so. The Instagram deletions compounded it. In one reply he complained the prosecution had not said when the deletion happened; in another he asserted it was much before the FIR, without saying when, from which device or why.

The timing, extent and recoverability of that data needed forensic examination, the status report said. An applicant whose phone vanished on the very day he asserted it held the whole record, and whose account is contradicted by the circumstances the State identified, is not an exceptional case for protection from arrest, the judge concluded.

Order

Bail Appln. 3355/2026 was dismissed. The protection of 17 August 2026 was an interim arrangement till the next date pending the State’s reply, not an adjudicated grant of bail. The status report, the CDR and hotel records, the missing handset, the Instagram deletions and the inconsistencies in the applicant’s account were a material change in circumstances.

That protection stands vacated and Crl.M.A. 30416/2026 is allowed. The 17 November 2026 date in the bail application is cancelled. The court clarified that no interim order was ever passed in the connected writ petition, W.P.(Crl) 2484/2026, which remains listed on 17 November with its own application for protection and will be decided independently.

The applicant may surrender before the competent court and seek regular bail, to be decided uninfluenced by these observations. The complainant’s identity is not to be disclosed in any proceeding or report arising from the judgment, and nothing in it is an opinion on the merits. A copy goes to the jurisdictional magistrate and the SHO, Hazrat Nizamuddin.