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Vishalbhai Nileshbhai Desai vs State Of Gujarat on 22 August, 2019

R/CR.MA/10445/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10445 of 2019

VISHALBHAI NILESHBHAI DESAI
Versus
STATE OF GUJARAT

Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
MR RONAK RAVAL, APP(2) for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 22/08/2019
ORAL ORDER

1. The present application is filed under Section 439
of the Code of Criminal Procedure, 1973, for
regular bail in connection with FIR being I­
C.R.No.09 of 2019 registered with Upleta Police
Station, Rajkot for offence under Sections 306,
Section114, Section498A of the Indian Penal Code.

2. 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.

3. Learned APP appearing on behalf of the respondent­
State has opposed grant of regular bail looking to
the nature and gravity of the offence.

4. Learned Advocates appearing on behalf of the
respective parties do not press for further
reasoned order.

5. 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

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R/CR.MA/10445/2019 ORDER

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.

6. This Court has considered following aspects,

(a) Applicant is in jail since 04.02.2019;

(b) Investigation is concluded and chargesheet is
filed’

(c) It is alleged against the applicant that the
applicant was having relation with sister­ in­
law and therefore, the deceased has committed
suicide;

(d) 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 facts.
Extramarital relationship, per se, or as such
would not come within the ambit of Section
498A IPC. 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

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R/CR.MA/10445/2019 ORDER

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.”

(e) It is also contended by learned advocate for
the applicant that though alleged suicide note
written by the deceased is recovered hand writing
expert’s opinion, does not support the case of the
prosecution;

(f) 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;

7. 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.

8. Hence, the present application is allowed. The
applicant is ordered to be released on regular
bail in connection with FIR being I­C.R.No.09 of
2019 registered with Upleta Police Station, Rajkot
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;

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R/CR.MA/10445/2019 ORDER

[c] surrender passport, if any, to the lower
court within a week;
[d] not leave the India without prior
permission of the Sessions Judge
concerned;
[e] mark presence before the concerned Police
Station between 1 st to 10 th 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;

9. 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.

10. At the trial, the Trial Court shall not be
influenced by the prima facie observations made by
this Court in the present order.

11. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(VIPUL M. PANCHOLI, J)
Pallavi

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