Bail courts do not conduct mini-trials, but they do read the FIR — and sometimes the FIR does not say what the sections invoked suggest it should. In Saksham Kaushik v. State (Govt. of NCT of Delhi), BAIL APPLN. 1684/2026, decided on 25 May 2026, Justice Girish Kathpalia of the Delhi High Court granted regular bail in a case registered under Sections 64(1), 115(2), 138 and 351(2) of the Bharatiya Nyaya Sanhita, 2023, after noting that the recorded allegations did not disclose forced penetrative assault — a point the prosecution itself conceded at the hearing. The order is a compact illustration of how the gap between the FIR's contents and the offences invoked operates at the bail stage.
The allegations
The complainant and the applicant met as postgraduate students; the friendship turned romantic, and by early 2025, according to the FIR, controlling and violent. The complainant alleged repeated physical assaults, an incident in which she was taken to Meerut and beaten, non-consensual recording of intimate acts, and threats — to circulate the recordings and to harm her brother. On these allegations the FIR invoked, among others, Section 64(1) BNS, the principal rape provision carrying a minimum of ten years rigorous imprisonment.
The hearing and the concession
Defence counsel argued that the allegations, taken at their highest, did not disclose forced penetrative assault, and that the gravest section invoked therefore did not match the recorded case. The prosecution, on instructions, acknowledged that the FIR contained no allegation of forced sexual intercourse. The complainant, appearing through counsel, maintained the allegations of beatings and non-consensual recording and sought to explain the FIR text as containing a typographical slip. The Court proceeded on the record as it stood.
Why bail followed
Severity recalibrated
The gravity of the offence is a central bail factor. Where the core allegation of the gravest section is absent from the FIR itself, the case is assessed at the bail stage on the footing of the offences the record actually discloses.
Trial-stage matters left open
Whether the remaining allegations are proved, and whether the charge as framed will include the graver section, are questions for the trial court on the full material — not for the bail court.
Protective conditions
The liberty granted was fenced: an absolute no-contact direction toward the prosecutrix, backed by the cancellation jurisdiction, addresses the real risk in intimate-partner cases — pressure on the complainant.
Modest bonds
A bond of Rs. 20,000 with one surety reflects the settled position that bail amounts are to secure attendance, not to price liberty beyond reach.
The wider point for bail practice
Delhi bail courts see a steady stream of FIRs in which the sections invoked are broader than the narrative recorded. The disciplined way to use that gap is the way this order does: not to argue that the FIR is false — a trial question — but to show that even accepting every word of it, the statutory ingredients of the gravest offence are not alleged. That submission engages the triple test honestly: flight risk, tampering and reoffending are all evaluated against the offence the record discloses, not the label the investigating officer chose.
For complainants, the order is equally instructive. The prosecution case survives bail intact, and the no-contact condition is enforceable teeth: any attempt at contact or intimidation after release supports an application for cancellation under Section 483(3) BNSS and a fresh look at custody. Allegations of non-consensual intimate recordings also implicate Section 77 BNS (voyeurism) and provisions of the Information Technology Act, 2000, which the trial court can consider at the charge stage regardless of the bail outcome.
- Read the FIR against the ingredients of each section invoked before drafting a bail application; the mismatch argument must be precise, clause by clause.
- Anticipate the concession point: if the prosecution cannot identify where the FIR alleges the core ingredient, say so in terms and invite the court to record it.
- Propose realistic protective conditions in the application itself — no-contact, no-visit, device and account undertakings where image-based abuse is alleged.
- After release, treat conditions as absolute. Cancellation jurisprudence is unforgiving about contact with the complainant in intimate-partner cases.
Practice note: An order recording the State’s concession on the FIR’s contents is valuable beyond bail — it disciplines the charge-framing hearing. Certified copies of the bail order should be placed before the trial court when charges are considered, without overstating it: a bail-stage observation binds no one at trial, but it frames the argument.
Frequently Asked Questions
Does a bail court decide whether the offence is made out?
No. It forms a prima facie view. But where the FIR and material on record do not contain the core allegation of the gravest section invoked, that mismatch legitimately weighs in favour of bail, because the severity of the likely charge is one of the settled bail considerations.
What offences were involved in this case?
Sections 64(1) (rape), 115(2) (voluntarily causing hurt), 138 (abduction) and 351(2) (criminal intimidation) of the BNS. The complainant alleged a controlling relationship, assaults, non-consensual recording of intimate content and threats of circulation. The State acknowledged that forced intercourse was not alleged in the FIR.
What conditions were imposed on release?
A personal bond of Rs. 20,000 with one surety in the like amount, and a strict direction that the accused shall not attempt to contact the prosecutrix in any manner, with violation inviting consequences including cancellation.
Does bail in such a case weaken the prosecution?
No. Bail is not an acquittal and expresses no final view. Allegations of intimate image abuse and assault remain to be tried, and breach of the no-contact condition is an independent ground for cancellation under Section 483(3) BNSS.