High Court of Gujarat
BHARATBHAI @HARESHBHAI JEMABHAI MAKWANA (NAME AS PER SESSION COURT ORDER)versusSTATE OF GUJARAT
- Disposal
- 38-RULE ABSOLUTE/ALLOWED @ FH
- Bench
- HASMUKH D SUTHAR
Holding
The Court held that the applicant is entitled to regular bail as the case prima facie warrants the exercise of discretion, subject to strict conditions.
Summary
The High Court of Gujarat entertained an application for regular bail filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in connection with an FIR alleging offences under the Bharatiya Nyaya Sanhita and the POCSO Act. The applicant, a 23‑year‑old, claimed innocence and argued that the investigation was substantially complete, the dispute with the complainant was settled, and he had no prior similar offences except a conviction under the Gujarat Police Act. The State opposed bail, contending the applicant played an active role in a serious offence. The Court examined bail principles, the nature of the allegations, risk of witness tampering, and the applicant’s personal circumstances, and relied on Supreme Court precedents (Sanjay Chandra v. CBI and Gudikanti Narasimhulu v. Public Prosecutor). Finding a prima facie case and noting the applicant’s ties to the victim, the Court granted regular bail on a personal bond of Rs.25,000 with several conditions.
Issues considered
- Whether regular bail can be granted before the filing of a chargesheet for offences under the BNSS, BNS and POCSO statutes
- Whether the applicant poses a risk of tampering with evidence or absconding
- Whether the applicant’s prior conviction under the Gujarat Police Act affects bail eligibility
- Whether the settled nature of the dispute and the applicant’s personal circumstances justify bail
Legislation cited
Subjects
regular bailpre‑trial detentionBNSSPOCSObail jurisprudencepersonal libertySection 483Gujarat High Court
Judgment
R/CR.MA/13342/2026 ORDER DATED: 08/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - BEFORE
CHARGESHEET) NO. 13342 of 2026
==============================================
BHARATBHAI @HARESHBHAI JEMABHAI MAKWANA (NAME AS PER
SESSION COURT ORDER)
Versus
STATE OF GUJARAT & ANR.
==============================================
Appearance:
SAJID Y KARIYANIYA(9619) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR ADITYA JADEJA, APP for the Respondent(s) No. 1
==============================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 08/07/2026
ORDER
Learned Advocate Mr. Mohitsinh A. Jadeja, states that
he has instructions to appear on behalf of the original
complainant and thereby, seeks permission to file his
Vakalatnama. The Registry is directed to accept the
Vakalatnama.
The respondent no.2 – original complainant is present before
this Court and tendered her affidavit which is taken on record.
1) RULE. Learned APP waives service of rule for the respondent-State.
2) The present application is filed under Section 483 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) for regular bail
in connection with FIR being C.R. No.11211050250439 of 2025
registered with Thangadh Police Station, Surendranagar, for
the offence under Sections 137(1), 137(2), 87, 64(2)(i), 64(2)(f),
64(2)(h) and 64(2)(m) of the Bharatiya Nyaya Sanhita and under
Sections 3(a), 4, 5(J)(2), 5(L), 5(N), 5(Q), 6, 11(4) and 12 of the
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R/CR.MA/13342/2026 ORDER DATED: 08/07/2026
POCSO Act.
3) Learned advocate appearing on behalf of the applicant submits that
applicant is innocent and has been falsely implicated in the offence.
Substantial part of investigation is over. He therefore submits that,
considering the nature of the offence, the applicants may be
enlarged on regular bail by imposing suitable conditions.
4) Learned APP appearing on behalf of the respondent-State has
opposed the present application and submitted that, the applicant
is involved in serious offence and has played active role in the
commission of the present offence. Considering the conduct of the
applicant, application does not deserve any consideration.
5) While granting bail, the Court has to consider the involvement of
the accused in the alleged offence, the jurisdiction to grant bail has
to be exercised on the basis of the well settled principles having
regard to the facts and circumstances of each case and the
following factors are to be taken into consideration while
considering an application for bail: (i) the nature of accusation and
the severity of the punishment and the nature of the materials
relied upon by the prosecution; (ii) reasonable apprehension of
tampering with the witnesses and threat to the complainant or the
witnesses; (iii) reasonable possibility of securing the presence of
the accused at the time of trial or the likelihood of his abscondence;
(iv) character behaviour and standing of the accused and the
circumstances which are peculiar to the accused; (v) larger interest
of the public or the State and similar other considerations are
required to be considered.
6) I have heard the learned advocates appearing on behalf of the
respective parties and perused the investigation papers. Following
aspects have been considered:
(1) The complainant has filed her affidavit and the same is
taken on record. At the outset the complainant has stated
that the dispute is settled between the parties as the
victim and accused belongs to same community and
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R/CR.MA/13342/2026 ORDER DATED: 08/07/2026
further stated that as and when the victim will attain
majority both will enter into matrimonial relationship.
(2) Substantial part of investigation is over;
(3) Applicant is aged 23 years old who is behind the bar since
23.05.2026;
(4) The applicant and victim resided together for 10 months.;
(5) There is nothing to be recovered or discovered from the
applicant;
(6) There is one offence registered against the applicant
under Section 135 of the GP Act wherein he has already
been found guilty except this no past antecedents of
similar nature;
(7) Obviously commencement and conclusion of trial will take
some time.
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 as well as
in the case of Gudikanti Narasimhulu And Ors vs. Public
Prosecutor, High Court of Andhra Pradesh reported in
(1978)1 SCC 240. Obviously, the conclusion of trial will take time
and keeping the accused behind the bars is nothing but amounts to
pre-trial conviction and therefore, considering the celebrated
principle of bail jurisprudence is that “bail is a rule and jail is
exception” as well as the concept of personal liberty guaranteed
under Article 21 of the Constitution of India, present application
deserves consideration.
8) In the facts and circumstances of the case and considering the
nature of the allegations made against the applicant in the FIR,
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. Hence, the present application
is allowed. The applicant is ordered to be released on regular bail in
connection with FIR being C.R. No.11211050250439 of 2025
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R/CR.MA/13342/2026 ORDER DATED: 08/07/2026
registered with Thangadh Police Station, Surendranagar on
executing a personal bond of Rs.25,000/- (Rupees Twenty-five
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 & shall not obstruct or hamper the police
investigation and shall not to play mischief with the
evidence collected or yet to be collected by the police;
(c) surrender passport, if any, to the Trial Court within a
week;
(d) not to leave State of Gujarat without prior permission of
the Trial Court concerned;
(e) mark presence before the concerned Police Station once in
a week till filing of the chargesheet and after filing of the
chargesheet, mark presence before the concerned police
station once in a month for a period of six months;
(f) furnish the Aadhar card, email ID/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/contact number without prior permission of
Trial Court;
(g) if the applicant is found to be indulged in any illegal
activities in future, the trial Court concerned will be free to
issue warrant and cancel the bail granted to the applicant.
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.
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R/CR.MA/13342/2026 ORDER DATED: 08/07/2026
10) 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 influenced by the
observations of preliminary nature qua the evidence at this stage
made by this Court while enlarging the applicant on bail.
12) Rule is made absolute to the aforesaid extent. Direct service is
permitted.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: ANKIT YOGESHBHAI JANSARI(HCW0109), ENGLISH STENOGRAPHER GRADE ONE, at High Court of Gujarat on 08/07/2026 18:50:43
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