IO Cannot Act Without Prior Sanction: Gujarat High Court Grants Bail, Flags Procedural Lapse in Religious Conversion Case

"No prosecution for an offence under Gujarat Freedom of Religion Act, 2003shall be instituted" — High Court Holds This Mandate Prima Facie Binding on Investigating Officer, Not Merely on Magistrate Taking Cognizance. In a significant bail order touching upon the procedural safeguards under the Gujarat Freedom of Religion Act, 2003, the Gujarat High Court granted regular bail to two accused persons allegedly involved in inducing a complainant to change his religion, noting a prima facie procedural irregularity in the sequence of obtaining the mandatory prior sanction required under Section 6 of the Act.

The applicants were arrested in connection with FIR No. C.R. No. 11204047250360 of 2025, registered at Nadiad West Police Station, Kheda, for offences punishable under Sections 4(1) and 4(2) of the Gujarat Freedom of Religion Act, 2003. Applicant No. 1 had been in custody since October 5, 2025, and Applicant No. 2 since October 7, 2025. The chargesheet had been filed by the time this bail application was heard. Critically, no actual conversion of the complainant had taken place — the allegation was confined to inducement alone.

The central legal question before the Court was whether the mandatory prior sanction requirement under Section 6 of the Gujarat Freedom of Religion Act, 2003 — which provides that "no prosecution for an offence under this Act shall be instituted" without the previous sanction of the District Magistrate — had been complied with. The Court was also required to exercise its discretion on bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), weighing the nature of allegations, period of custody, and the procedural irregularity prima facie apparent on the record.

The Critical Sequence: Chargesheet Before Sanction

The Court zeroed in on a stark factual discrepancy in the timeline of the prosecution's own record. The chargesheet was sent by the Investigating Officer to the Trial Court on November 21, 2025. The sanction of the District Magistrate under Section 6 was, however, obtained only on November 24, 2025 — three days later.

The prosecution attempted to bridge this gap by drawing the Court's attention to a communication dated November 20, 2025, through which the Investigating Officer had sought permission to institute the prosecution. The sanction was then granted on November 24, 2025. The Public Prosecutor also contended that the Trial Court had actually received and filed the chargesheet on November 24, 2025, making both the sanction and the formal filing of the chargesheet on the same date.

The Court was not persuaded that this resolved the prima facie irregularity.

"No Prosecution Shall Be Instituted" vs. "No Cognizance Shall Be Taken"

The Court drew a sharp and legally consequential distinction between the language employed by the Gujarat Freedom of Religion Act and the language found in other similar Acts. Section 6 of the Gujarat Act uses the phrase "no prosecution for an offence under this Act shall be instituted without previous sanction of the District Magistrate." This, the Court observed, is categorically different from enactments which say "no cognizance of an offence shall be taken" — a restriction directed at the Magistrate's judicial function.

"Prima facie, it would appear to this Court, that Section 6 would be imposing a mandate against the Investigating Officer that he would not institute prosecution for an offence without the previous sanction of the District Magistrate."

This prima facie reading — that the mandate operates at the stage of institution of prosecution by the Investigating Officer, not merely at the stage of the Magistrate taking cognizance — carries significant implications for the validity of the entire prosecution. The Court, however, was careful to clarify that these were prima facie observations at the bail stage, particularly noting that the constitutional validity of the Gujarat Freedom of Religion Act itself is presently under consideration before the Supreme Court.

No Actual Conversion: Allegation Confined to Inducement

The Court noted the absence of any actual conversion as a material factor. The allegation, as it stood on the FIR and the chargesheet, was confined to the applicants having induced the complainant to join a different religion. No act of conversion had been completed. This significantly altered the gravity calculus for bail, distinguishing the case from situations where the completed offence of conversion is alleged.

Period of Custody and Maximum Punishment

The applicants had been in custody since October 2025. The Court factored in the period of custody already undergone alongside the maximum punishment imposable under the Act. Relying upon the law laid down by the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in [2012] 1 SCC 40 — which established that bail is the rule and jail is the exception, and that detention pending trial cannot be used as a punitive measure — the Court concluded that this was a fit case to exercise discretion in favour of the applicants.

"Without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail."

Bail Conditions Imposed

The Court granted bail subject to a bond of Rs. 25,000/- each with one surety of a like amount. The applicants were directed not to misuse their liberty or act against the interest of the prosecution, to surrender their passports if any within one week, not to leave the State of Gujarat without prior permission of the Sessions Court, to furnish their present address to the Investigating Officer and the Court, and to mark their presence before the concerned police station once a month for a period of six months.

The Court clarified that the Trial Court shall not be influenced by any of the observations made at the bail stage, and that the concerned Court shall be at liberty to delete, modify, or relax the conditions in accordance with law.

The Gujarat High Court's order in this case is a pointed reminder that the procedural safeguards built into special penal legislation — particularly the requirement of prior sanction before institution of prosecution — are not mere technicalities. The Court's prima facie finding that Section 6 of the Gujarat Freedom of Religion Act binds the Investigating Officer and not merely the Magistrate, and that the chargesheet was dispatched to the Trial Court before the mandatory sanction was even obtained, raises serious questions about the regularity of the prosecution itself. While the bail order is limited to its own facts, the Court's observation on the language of Section 6 — placing the obligation at the stage of institution, not cognizance — is likely to be pressed heavily by defence counsel in the trial proceedings ahead.

Date of Decision: March 6, 2026