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Divyarajsinh Nirmansinh Wala vs State Of Gujarat on 1 August, 2019

R/CR.MA/14136/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION NO. 14136 of 2019

DIVYARAJSINH NIRMANSINH WALA
Versus
STATE OF GUJARAT

Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1
MR LB DABHI, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 01/08/2019
ORAL ORDER

1. Rule. Learned APP Mr.L.B. Dabhi waives service
of Rule on behalf of the respondent State.

2. The present application is filed under Section
439 of the Code of Criminal Procedure, 1973, for
regular bail in connection with FIR being C.R.
No.I­26 of 2019 registered with Dholera Police
Station, District Ahmedabad Rural, for offence
under Sections 498A and Section306 of the Indian Penal
Code.

3. Learned advocate appearing on behalf of the
applicant submits that considering the nature of
the offence, the applicant may be enlarged on
regular bail by imposing suitable conditions.

4. Learned APP appearing on behalf of the
respondent­State has opposed grant of regular
bail looking to the nature and gravity of the
offence.

5. Learned advocates appearing on behalf of the
respective parties do not press for further

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R/CR.MA/14136/2019 ORDER

reasoned order.
6. Having heard the learned advocates for the
parties and perusing the material placed on

record and taking into consideration the facts
of the case, nature of allegations, gravity of
offences, role attributed to the accused,
without discussing the evidence in detail, this
Court is of the opinion that this is a fit case
to exercise the discretion and enlarge the
applicant on regular bail.

7. This Court has also considered the following
aspects:

(a) the applicant is in Jail since 04.07.2019;

(b) this Court has considered the allegations
levelled against the applicant in the FIR. It is
alleged that the applicant is having extra­
marital relationship, as a result of which, the
wife of the applicant has committed suicide;

(c) learned advocate for the applicant has
placed reliance upon the decision rendered by
the Honourable Supreme Court in the case of K.V.
Prakash Babu Vs. State of Karnataka, rendered on
22.11.2016 passed in Criminal Appeal Nos.1138 of
2018 and 1139 of 2016, wherein the Honourable
Supreme Court has held in Paragraph­16 as under:

“16. The concept of mental cruelty depends
upon the milieu and the strata from which
the persons come from and definitely has an
individualistic perception regard being had
to one’s endurance and sensitivity. It is
difficult to generalize but certainly it
can be appreciated in a set of established

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R/CR.MA/14136/2019 ORDER

facts. Extra­marital relationship, per se,
or as such would not come within the ambit
of Section 498­A SectionIPC. It would be an
illegal or immoral act, but other
ingredients are to be brought home so that
it would constitute a criminal offence.
There is no denial of the fact that the
cruelty need not be physical but a mental
torture or abnormal behaviour that amounts
to cruelty or harassment in a given case.
It will depend upon the facts of the said
case. To explicate, solely because the
husband is involved in an extra­marital
relationship and there is some suspicion in
the mind of wife, that cannot be regarded
as mental cruelty which would attract
mental cruelty for satisfying the
ingredients of Section 306 IPC.”

(d) in view of the aforesaid submission
canvassed by the learned advocate for the
applicant and in view of the decision rendered
by the Honourable Supreme Court in the aforesaid
case, this Court is inclined to exercise
discretion in favour of the applicant;

8. This Court has also taken into consideration the law laid down by the
Hon’ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau
of Investigation, reported in (2012) 1 SCC 40.

9. Hence, the present application is allowed. The
applicant is ordered to be released on regular
bail in connection with FIR being C.R. No.I­26
of 2019 registered with Dholera Police Station,
District Ahmedabad Rural, on executing a
personal bond of Rs.10,000/­ (Rupees Ten
Thousand only) with one surety of the like
amount to the satisfaction of the trial Court
and subject to the conditions that he shall;

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R/CR.MA/14136/2019 ORDER

[a] not take undue advantage of liberty or
misuse liberty;

[b] not act in a manner injurious to the
interest of the prosecution;

[c] surrender passport, if any, to the lower
court within a week;

[d] not leave India without prior permission
of the concerned Trial Court;

[e] mark presence before the concerned
Police Station between 1st to 10th day of
every English calendar month for a
period of six months between 11:00 a.m.
and 2:00 p.m.;

[f] furnish the present address of residence
to the Investigating Officer and also to
the Court at the time of execution of
the bond and shall not change the
residence without prior permission of
this Court;

10. The authorities will release the applicant only
if he is not required in connection with any
other offence for the time being. If breach of
any of the above conditions is committed, the
Sessions Judge concerned will be free to issue
warrant or take appropriate action in the
matter. Bail bond to be executed before the
lower Court having jurisdiction to try the case.
It will be open for the concerned Court to
delete, modify and/or relax any of the above
conditions, in accordance with law.

11. At the trial, the Trial Court shall not be

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R/CR.MA/14136/2019 ORDER

influenced by the prima facie observations made
by this Court in the present order.

12. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(VIPUL M. PANCHOLI, J)
piyush

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