2025 INSC 246

SUPREME COURT OF INDIA

(HON’BLE BELA M. TRIVEDI, J. AND HON’BLE PRASANNA B. VARALE, JJ.)

HITESH UMESHBHAI MASHRU

Petitioner

VERSUS

STATE OF GUJARAT

Respondent

Criminal Appeal No. OF 2025 (Arising out of SLP(Criminal) No. 12437/2024)-Decided on 18-02-2025

Criminal, Rape, Bail

Criminal Procedure Code, 1973, Section 438 – Anticipatory bail – Rape - Offence punishable under Sections- 493 and 376(2)(n) IPC – Submitted on behalf of the appellant that the appellant had married the prosecutrix (respondent no.2) at the age of 47 years, and it was the third marriage of both the parties i.e. the appellant and the prosecutrix - He further submitted that the appellant has joined the investigation after he was granted protection against his arrest by this Court vide the order dated 01.10.2024 – As submitted on behalf of State investigation is over, and as per instructions, the charge-sheet has already been filed in the case – Held that without expressing any opinion on the merits of the case, inclined to accept the present appeal - Directed that in the event of the arrest of the appellant, in connection with the F.I.R. he shall be released on bail, if not required in any other case, on such terms and conditions that may be imposed by the Trial Court - He shall continue to co-operate with the investigation - Respondent-State shall be at liberty to file appropriate application seeking cancellation of bail in case any of the conditions, that may be imposed by the Trial Court, are violated or breached by the appellant.

(Para 4 to 9)

JUDGMENT

1. Leave granted.

2. The present appeal arises out of the impugned judgment and order dated 23.08.2024, passed by the High Court of Gujarat at Ahmedabad in R/ Criminal Misc. Application (for successive anticipatory bail) No. 16462 of 2024, whereby the High Court had rejected the said application, filed by the present appellant, seeking anticipatory bail in connection with the F.I.R. No. 11203024220505 dated 16.07.2022, registered at Police Station-B-Division, District- Junagadh, for the offence punishable under Sections- 493 and 376(2)(n) of the Indian Penal Code (for short ‘IPC’).

3. Heard learned counsel appearing for the parties and perused the material on record.

4. It is sought to be submitted by the learned counsel, Mr. Virat Popat, appearing for the appellant, that the appellant had married the prosecutrix (respondent no.2) at the age of 47 years, and it was the third marriage of both the parties i.e. the appellant and the prosecutrix. He further submitted that the appellant has joined the investigation after he was granted protection against his arrest by this Court vide the order dated 01.10.2024.

5. Learned counsel appearing for the respondent-State, relying upon the additional affidavit filed by the Investigating officer, submitted that the investigation is over, and as per his instructions, the charge-sheet has already been filed in the case.

6. Learned counsel, Ms. Aastha Mehta, appearing for respondent no.2 (prosecutrix), however, has objected to the granting of the anticipatory bail to the appellant by submitting that the appellant had cheated the respondent no.2 (prosecutrix) under the pretext of marriage. She further submitted that their marriage was also not registered, however they had married as per their customs.

7. Having regard to the submissions made by the learned counsels appearing for the parties and to the fact that now the charge-sheet has already been filed but, without expressing any opinion on the merits of the case, we are inclined to accept the present appeal.

8. Hence, it is directed that in the event of the arrest of the appellant, in connection with the F.I.R. No. 11203024220505 dated 16.07.2022, registered at Police Station-B-Division, District- Junagadh, he shall be released on bail, if not required in any other case, on such terms and conditions that may be imposed by the Trial Court. He shall continue to co-operate with the investigation.

9. It goes without saying that the respondent-State shall be at liberty to file appropriate application seeking cancellation of bail in case any of the conditions, that may be imposed by the Trial Court, are violated or breached by the appellant.

10. Accordingly, the appeal is allowed.

11. Pending application(s), if any, shall stand closed.

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