Anticipatory bail is extraordinary relief, and the Delhi High Court has again marked out the limits within which it operates in serious sexual offence cases. On 30 October 2026, in Akshay Aditya v. The State of NCT of Delhi & Anr., BAIL APPLN. 3355/2026, Justice Sachin Datta dismissed the pre-arrest bail application of a postgraduate surgery student facing FIR No. 0164/2026 of P.S. Hazrat Nizamuddin under Sections 64(1), 69, 351(2) and 115(2) of the Bharatiya Nyaya Sanhita, 2023, and vacated the interim protection that had been operating since August. The order is a careful statement of two propositions: consent to a relationship is not consent to each act within it, and Section 69 BNS is a residual provision that has no application where the allegation is of rape itself.
The allegations and the procedural history
The FIR, registered on 29 July 2026, alleged that the applicant contacted the complainant through Instagram in late 2025, repeatedly promised marriage, and thereafter committed forcible intercourse on three identified dates — 21 December 2025, 8 March 2026 and 3 June 2026 — with a further attempt in April 2026 and threats of self-harm when confronted. Section 64(2)(m) BNS was added in the course of investigation.
The procedural journey was itself eventful. The applicant was detained in Patna, where the Chief Judicial Magistrate declined transit remand and released him on a bond. The Additional Sessions Judge at Saket dismissed his anticipatory bail plea on 10 August 2026. The High Court granted interim protection on 17 August 2026, and the applicant joined the investigation on several dates. When the matter came on for final hearing, the State pointed to call detail and location records, hotel records, the disappearance of the applicant's earlier phone, and the deletion of his Instagram correspondence.
What the court held
The court vacated the interim protection, holding that such protection is an interim arrangement pending the State's reply and not an adjudicated grant, and that a material change in circumstances — the status report, electronic records and inconsistencies in the applicant's account — justified withdrawing it. The applicant's defence, the court said, is one to be tested at trial; he remains free to surrender and seek regular bail.
Where this fits in anticipatory bail law
Anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — the successor to Section 438 CrPC — protects the citizen against arrest on frivolous or motivated accusations. But in offences of sexual violence, the courts have consistently required something exceptional before granting pre-arrest protection: a prima facie case of false implication apparent from the record, not merely a competing narrative. This order illustrates the analysis. The court did not decide whom to believe; it asked whether the material disclosed a case needing custodial investigation, and found that it did — outstanding device recoveries, deleted correspondence and an account of events that could not be verified without confrontation.
The order also continues a visible trend in BNS-era jurisprudence of policing the boundary between Section 64 and Section 69. Accused persons have sought to characterise rape allegations as false-promise cases attracting the lighter residual provision; complainants have feared the new section would dilute rape prosecutions. The Delhi High Court's approach keeps the provisions in their lanes: where force is alleged on identified occasions, the case proceeds as rape, and the residual section does not enter the analysis.
Practical guidance
For applicants: interim protection is not a destination. Use the protected period to genuinely assist the investigation, and treat outstanding recoveries — especially devices and digital records — as the single biggest obstacle to final relief.
Explanations for missing evidence must be contemporaneously documented; an unreported phone-snatching will carry little weight months later.
For complainants and the prosecution: specific dates, places and electronic corroboration materially strengthen opposition to pre-arrest bail, as this order shows.
Frequently Asked Questions
What is the difference between Section 64 and Section 69 of the BNS?
Section 64 BNS punishes rape, corresponding to Section 376 IPC. Section 69 is a new, residual offence covering sexual intercourse obtained by deceitful means or a false promise of marriage, where the act does not amount to rape. The Delhi High Court emphasised that where the allegation is of forcible intercourse on specific occasions, the case is one of rape, and Section 69 cannot be used to soften its character.
Does joining the investigation entitle an accused to anticipatory bail?
No. Following Supreme Court authority, the court held that participation in the investigation does not by itself exclude the need for custodial interrogation. Where recoveries remain outstanding or the version of the accused needs confrontation with material, custody may still be justified.
Can interim protection be treated as a near-grant of bail?
No. The court made clear that interim protection pending the State's reply is only an interim arrangement, not an adjudicated right. If the status report and investigation disclose material changing the picture, the protection can be vacated when the application is finally decided.
Does dismissal of anticipatory bail mean the accused has no remedy?
No. The accused may surrender and apply for regular bail, which is decided independently on its own merits. The court in this case expressly preserved that course, while directing that the complainant's identity remain protected.