Prakashbhai Mafabhai Makwana vs State Of Gujarat

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 Page 1 of 4 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 Page 2 of 4 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 Page 4 of 4