[Cites 11, Cited by 0]
Gujarat High Court
Mansukhbhai Dhanjibhai Makwana vs State Of Gujarat on 16 March, 2026
NEUTRAL CITATION
R/CR.RA/425/2020 JUDGMENT DATED: 16/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 425 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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MANSUKHBHAI DHANJIBHAI MAKWANA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MR NEERAJ SONI(3433) for the Applicant(s) No. 1
MEHUL A SURATI(7870) for the Respondent(s) No. 2,3,4,5,6
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 16/03/2026
ORAL JUDGMENT
1. By way of the present revision application, the applicant
has sought the following reliefs:
(A) To quash and set aside the judgment and order dated
19.11.2019 passed by the learned Additional City Sessions
Judge, Ahmedabad in Criminal Appeal No.465 of 2019.
(B) To quash and set aside the order dated 27.05.2019
passed by the learned Additional Chief Metropolitan
Magistrate, Court No.4, Ahmedabad in Criminal Case No.911
of 2015.
2. Heard the learned advocates for the respective parties.
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3. Learned advocate for the applicant submitted that both the
courts below have committed an error in discharging the
accused. It is submitted that the revisionist was married to
respondent No.2 according to Hindu rites and rituals on
13.12.1994 and out of the wedlock, a daughter was born in the
year 1999. It is further submitted that in the year 1999,
respondent No.2 left the matrimonial home and went to reside
with her parents and thereafter did not return to the
matrimonial home despite several efforts made by the husband.
4. It is further submitted that due to matrimonial discord
between the parties, in February 2010, the complainant allegedly
saw respondent No.2 in the company of one Maheshbhai
Paljibhai Chhashiya, who is respondent No.3 herein, which came
as a shock to him. The complainant thereafter approached
respondent No.2 and requested her to return to the matrimonial
home along with their daughter. According to the complainant,
respondent Nos.2 and 3 were not legally married; however,
respondent No.3 allegedly showed certain photographs indicating
marriage with respondent No.2 and respondent No.2 was
residing with respondent No.3.
5. In view of the aforesaid circumstances, the complainant
filed a private complaint alleging the offence of adultery under
Section 497 of the Indian Penal Code against respondent No.3. It
was also alleged that the complainant was abused and
threatened, and therefore offences under Sections 495, 496, 497,
294B, 504, 506 read with Section 114 of the IPC were invoked.
The said complaint was initially registered as Inquiry Case No.6
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of 2014, which subsequently culminated into Criminal Case
No.911 of 2015. After the inquiry, process came to be issued for
the offences punishable under Sections 497 and 114 of the IPC.
6. Thereafter, the accused preferred an application under
Section 245 of the Code of Criminal Procedure seeking
discharge. The learned trial court allowed the discharge
application, mainly in view of the fact that Section 497 of the IPC
had been declared unconstitutional by the Hon'ble Supreme
Court. Being aggrieved by the said order dated 27.05.2019, the
complainant preferred Criminal Appeal No.465 of 2019, which
also came to be dismissed by the learned Additional City
Sessions Judge, Ahmedabad by judgment dated 19.11.2019,
confirming the order of discharge passed by the trial court.
7. Assailing the aforesaid orders, learned advocate for the
applicant mainly contended that though Section 497 of the IPC
was declared unconstitutional by the Hon'ble Supreme Court on
27.09.2018, the said declaration ought to be treated as
prospective in operation and therefore the complaint filed prior
to the said declaration should be allowed to proceed.
8. Perusing the record, it appears that the constitutional
validity of Section 497 of the IPC has been struck down by the
Hon'ble Supreme Court as being unconstitutional and violative
of Articles 14, 15 and 21 of the Constitution of India. In the
present complaint, except for the allegation of adultery, no other
consequence or independent offence--such as abetment of
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suicide or any other criminal offence--has been alleged.
Therefore, merely on the basis of an alleged adulterous act, the
person cannot be prosecuted further. In this regard, reference
may be made to Joseph Shine v. Union of India, (2019) 3 SCC
39. In view of the above, both the courts below have not
committed any error and, in the absence of any perversity, this
Court does not find any reason to interfere with the findings
recorded by the courts below. Once the very provision under
which the accused were sought to be prosecuted has been
declared unconstitutional, the question of continuing the
criminal prosecution on the basis of such allegation does not
arise.
9. In the present case, both the courts below have considered
the legal position and have rightly held that the accused cannot
be prosecuted for an offence under a provision which has been
declared unconstitutional by the Hon'ble Supreme Court. While
exercising revisional jurisdiction, this Court cannot re-appreciate
or re-evaluate the evidence on record unless there is a clear
jurisdictional error, perversity, or illegality in the findings
recorded by the courts below.
10. In the opinion of this Court, no such perversity or
jurisdictional error is pointed out. The contention that the
judgment of the Hon'ble Supreme Court has only prospective
application cannot be accepted in the facts of the present case.
11. In view of the above, this Court finds that the orders
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passed by the learned courts below do not suffer from any
illegality or perversity warranting interference in exercise of
revisional jurisdiction. Accordingly, the present revision
application stands dismissed.
(HASMUKH D. SUTHAR,J)
ALI
