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Prakashbhai Mafabhai Makwana vs State Of Gujarat on 22 February, 2019

R/CR.MA/533/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION NO. 533 of 2019

PRAKASHBHAI MAFABHAI MAKWANA
Versus
STATE OF GUJARAT

Appearance:
MR HARSHIT S TOLIA(2708) for the Applicant(s) No. 1
MR PARTH S TOLIA(5617) for the Applicant(s) No. 1
MR. K. L. PANDYA, APP (2) for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE

Date : 22/02/2019

ORAL ORDER

1. This application is filed by the applicant under Section 439

of the Code of Criminal Procedure, 1973 for regular bail in

connection with FIR registered as C.R. No.I-146 of 2018

with Ghogha Road Police Station, Bhavnagar, for the

offence punishable under Sections 306, 498(A) and 114 of

the Indian Penal Code.

2. Learned advocate appearing on behalf of the applicant

submits that considering the nature of offence, the

applicant may be enlarged on regular bail by imposing

suitable conditions.

3. On the other hand, the learned Additional Public

Prosecutor appearing for the respondent-State has

opposed grant of regular bail looking to the nature and

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R/CR.MA/533/2019 ORDER

gravity of the offence.

4. Learned Advocates appearing on behalf of the respective

parties do not press for a further reasoned order.

5. I have heard the learned advocates appearing on behalf of

the respective parties and perused the papers. Following

aspects are considered :-

I) The F.I.R. is registered on 15-09-2018 for the offence
which is alleged to have taken place on 15-09-2018;

II) The applicant is in custody since 15-09-2018;

III) Investigation is concluded and charge-sheet is filed;

IV) Though marriage period is of six months, the
statements are recorded of two witnesses, one is the real
sister of the deceased and another is cousin sister of the
deceased, who are also married in the family of the
applicant. Their statement would not support the case of
suspecting the illicit affair;

V) Learned Advocate for the applicant relies upon the
judgment of Apex Court in the case of K. V. Prakash Babu
V/s. State of Karnataka reported in AIR 2016 SC 5430,
wherein the Apex Court has held that extra marital
relationship per se, or as such would not come within the
ambit of Section 498A. It would be an illegal or immoral
act, but still other ingredients are required to be brought
on record to constitute a criminal offence of cruelty;

VI) In the instance case, except for the version coming on
record of the complainant about the deceased suspecting
the applicant there is no other material to show how there
was extra marital affair;

VII) Learned Additional Public Prosecutor under the
instructions of the Investigating Officer is unable to bring
on record any special circumstances against the applicant.

This Court has taken into consideration the law laid down

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R/CR.MA/533/2019 ORDER

by the Hon’ble Apex Court in the case of Sanjay Chandra

v. Central Bureau of Investigation reported in [2012] 1

SCC 40.

6. In the facts and circumstances of the case and considering

the nature of the allegations made against the applicant in

the First Information Report, 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.

7. Hence, the present application is allowed. The applicant is

ordered to be released on regular bail in connection with

C.R. No.I-146 of 2018 with Ghogha Road Police

Station, Bhavnagar, 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;

(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 the State of Gujarat without prior permission
of the Sessions Judge concerned;

(e) mark presence before the concerned Police Station
once in a month for a period of six months between 11.00
a.m. and 2.00 p.m.;

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R/CR.MA/533/2019 ORDER

(f) furnish the present address of his 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;

8. 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.

9. 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.

10. At the trial, the trial Court shall not be influenced by

the observations of preliminary nature qua the evidence at

this stage made by this Court while enlarging the applicant

on bail.

11. The application is allowed in the aforesaid terms.

Rule is made absolute to the aforesaid extent. Direct

Service is permitted.

(A.Y. KOGJE, J)
PARESH SOMPURA

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