A) ABSTRACT / HEADNOTE

Hitesh Umeshbhai Mashru v. The State of Gujarat & Anr., [2025] 3 S.C.R. 205 : 2025 INSC 246 concerns an application for anticipatory bail where FIR No. 11203024220505 dated 16.07.2022 under Sections 493 and 376(2)(n) of the Indian Penal Code, 1860 was registered. The High Court of Gujarat had declined successive anticipatory bail; this Court granted leave and entertained the appeal. The appellant, who allegedly married the prosecutrix when both were in their late forties and it was the third marriage for each, had been earlier granted protection against arrest by this Court and subsequently joined investigation.

The State informed the Court that investigation had concluded and charge-sheet had been filed. The prosecutrix opposed bail on the ground of being cheated under the pretext of marriage and that the marriage was unregistered (allegedly solemnised according to customs). Without adjudicating the merits of the underlying criminal allegations, the Supreme Court exercised its discretionary power in favour of the appellant and directed that in the event of arrest he shall be released on bail subject to such conditions as the trial court may impose, provided he is not required in any other case and continues to cooperate with investigation.

The State retains liberty to move for cancellation of bail on violation of conditions. The decision emphasises the court’s supervisory role in anticipatory bail applications, the relevance of investigation status (charge-sheet filed) and the co-operative conduct of the accused as factors favouring bail while expressly refraining from commenting on substantive guilt.

Keywords: anticipatory bail, protection against arrest, charge-sheet, cheating under pretext of marriage, Sections 493 & 376(2)(n) IPC.

B) CASE DETAILS 

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The appeal challenges the High Court’s refusal to grant successive anticipatory bail to the appellant in a crime registered on 16.07.2022 under Sections 493 (enticing or taking away or detaining with criminal intent a married woman) and 376(2)(n) (sexual intercourse by a person in certain relationships or under certain circumstances as aggravated) of the Indian Penal Code, 1860. The appellant had earlier obtained protection against arrest from this Court and subsequently participated with the investigation.

After submission of the charge-sheet by the Investigating Officer, the State opposed bail cancellation while the prosecutrix resisted the grant of anticipatory bail contending deceit in the name of marriage and absence of formal registration. The High Court dismissed the anticipatory bail application and the appellant sought this Court’s intervention.

The Supreme Court examined whether continuance of protection and the stage of investigation justified discretionary relief without encroaching upon trial merits. The short but focused order records the factual matrix of consensual matrimonial assertion, the appellant’s cooperation and the procedural posture charge-sheet filed. Emphasising that the Court would not opine on substantive guilt, it found grounds to exercise bail jurisdiction in the appellant’s favour while permitting the trial court to fix conditions and expressly preserving the State’s right to seek cancellation on breach.

The decision reiterates settled ideas: anticipatory bail is discretionary, dependent on the gravity of allegations, stage of investigation, conduct of accused, and threat to prosecution. This judgment thus fits within the continuum of supervisory intervention balancing liberty and investigation integrity, applying equitable restraint when the accused has cooperated and formal prosecution processes have advanced to charge-sheeting.

D) FACTS OF THE CASE

The prosecutrix filed FIR No. 11203024220505 dated 16.07.2022 at Police Station-B-Division, District-Junagadh, alleging offence under Sections 493 and 376(2)(n) IPC. The allegations, as condensed in the record, are that the appellant married the prosecutrix under customary rites, a union asserted to be their third marriage respectively. The prosecutrix alleges the appellant cheated her under the pretext of marriage and that the marriage lacked formal registration. Following registration of the FIR, the appellant approached the High Court for anticipatory bail; his successive application was dismissed on 23.08.2024.

The appellant then approached this Court and obtained protection against arrest by order dated 01.10.2024. Subsequent to that order the appellant joined the investigation voluntarily. The Investigating Officer filed an additional affidavit stating that the investigation had been completed and a charge-sheet lodged. The prosecutrix opposed anticipatory bail in this Court on the ground that she had been deceived into marriage and that these allegations required trial.

The State relied on the completed investigation and the filed charge-sheet. The contest before the Supreme Court concerned whether, in these circumstances and without deciding guilt, anticipatory bail should be granted, permitting the trial court to impose appropriate terms and conditions.

E) LEGAL ISSUES RAISED

i. Whether anticipatory bail ought to be granted in respect of FIR No. 11203024220505 dated 16.07.2022 under Sections 493 and 376(2)(n) IPC after the charge-sheet has been filed?
ii. Whether the appellant’s voluntary cooperation with investigation and prior protection against arrest from this Court weigh in favour of anticipatory bail?
iii. Whether the prosecutrix’s allegation of deceit in marriage including non-registration of marriage precludes grant of anticipatory bail at the interlocutory stage?

F) PETITIONER / APPELLANT’S ARGUMENTS

The counsel for the appellant submitted that the appellant had married the prosecutrix at the age of 47, it being the third marriage for both, and stressed the appellant’s cooperative conduct by joining the investigation after receiving this Court’s protective order dated 01.10.2024. It was urged that the appellant’s cooperation, the advanced stage of investigation and the filing of the charge-sheet significantly reduced the risk of interference with investigation and thus favoured grant of anticipatory bail. The appellant relied on the discretionary relief available in appropriate cases where liberty must be safeguarded pending trial.

G) RESPONDENT’S ARGUMENTS

The State, through the Investigating Officer’s affidavit, indicated that the investigation was complete and that a charge-sheet had been filed. The prosecutrix’s counsel objected to bail, contending that the appellant had cheated the prosecutrix under the pretext of marriage and pointed to the marriage being unregistered as a factual feature reinforcing the allegations. It was submitted that the gravity of sexual offences and the nature of the deception justified denial of anticipatory bail and required full trial scrutiny.

H) RELATED LEGAL PROVISIONS 

i. Section 493, Indian Penal Code, 1860 — enticement or taking away or detaining with criminal intent a married woman.
ii. Section 376(2)(n), Indian Penal Code, 1860 — aggravated sexual intercourse clause applicable by reason of specific circumstances as alleged.
iii. Procedural principles under the Code of Criminal Procedure, 1973 governing grant and cancellation of bail and supervisory jurisdiction of higher courts.

I) JUDGEMENT

The Supreme Court, after hearing counsel and perusal of record, allowed the appeal and directed that in the event of arrest the appellant be released on bail subject to such terms as the trial court may impose, provided he is not required in any other case. The Court expressly refrained from expressing any opinion on the merits of the allegations, noting the charge-sheet had been filed and the appellant had cooperated with investigation. The Court emphasised that the State would have liberty to apply for cancellation of bail if conditions were contravened.

a. RATIO DECIDENDI

The operative reasoning rests on the exercise of discretionary supervisory jurisdiction in bail matters where procedural and factual markers militate in favour of liberty.

First, the completion of investigation and filing of a charge-sheet reduces the risk that bail will impede inquiry; it indicates that the investigative process has run its course and the authorities have taken a prosecutorial position.

Second, the appellant’s voluntary cooperation joining the investigation after obtaining protection evidences non-flight risk and willingness to face trial, enhancing prospects of compliance with conditional bail.

Third, the Court maintained the foundational principle that anticipatory bail must not be a substitute for trial; rather, it is an interlocutory safeguard to preserve fundamental liberty pending adjudication, and should be granted where there is no compelling reason to keep the accused detained at that stage.

Balancing the prosecutrix’s allegations of deception with these procedural realities and without probing evidentiary merits, the Court concluded that discretionary bail is appropriate with safeguards to protect the prosecution’s interest, including preservation of the State’s right to seek cancellation for any breach.

b. OBITER DICTA

In obiter, the Court underscored reluctance to decide guilt in bail proceedings and reiterated that allegations of serious sexual offences must be thoroughly examined at trial. It observed that absence of marriage registration per se is a factual matter for trial determination and not a conclusive bar to bail.

The Court also highlighted that protective orders previously issued by superior courts and subsequent conduct of accused such as joining investigation bear on the indulgence to be granted but do not amount to immunity. The statement that the State remains at liberty to move for cancellation of bail on breach of conditions reflects an insistence on conditionality and judicial oversight while preserving prosecutorial remedies.

c. GUIDELINES

i. Where the investigation is complete and charge-sheet filed, the risk of interference with investigation is diminished; this factor weighs in favour of anticipatory bail.
ii. Voluntary cooperation of the accused with investigation, including joining the probe after judicial protection, indicates lower flight risk and supports the grant of bail.
iii. Courts should avoid expressing views on guilt or evidence in bail orders; determination of factual disputes is the domain of the trial court.
iv. Grant of anticipatory bail must be on appropriate conditions fixed by the trial court to secure attendance, prevent tampering with witnesses or evidence, and to protect public interest.
v. The State must be afforded liberty to seek cancellation of bail upon any breach of imposed conditions; such supervisory remedies preserve prosecutorial equity.

J) CONCLUSION & COMMENTS

The Supreme Court allowed the appeal, granting anticipatory bail in the specific circumstances recorded, subject to conditions to be imposed by the trial court and subject to cancellation if conditions are violated. The order exemplifies measured exercise of bail jurisdiction where procedural developments completion of investigation and filing of charge-sheet coupled with the accused’s cooperative conduct reasonably tilt the balance in favour of liberty without undermining the prosecution’s case.

The Court’s approach preserves the twin objectives of protecting individual liberty and safeguarding the integrity of the criminal process by mandating conditionality and retaining the State’s right to seek cancellation. Notably, factual disputes about the nature and validity of the alleged marriage and the charged offences remain squarely for trial, and the Court’s restraint in not adjudicating merits aligns with long-standing principles that bail courts should not pre-try evidence.

This judgment serves as a practical reminder: anticipatory bail decisions are fact-sensitive, hinge on stage of investigation and conduct of the accused, and must be tailored with precise conditions to maintain the balance between personal liberty and effective prosecution.

K) REFERENCES

a) Important Cases Referred

i. Hitesh Umeshbhai Mashru v. The State of Gujarat & Anr., Criminal Appeal No. 812 of 2025, [2025] 3 S.C.R. 205 : 2025 INSC 246.

b) Important Statutes Referred

i. Indian Penal Code, 1860, Sections 493 and 376(2)(n).
ii. Code of Criminal Procedure, 1973 (principles governing bail and cancellation).