Application for anticipatory bail is maintainable in offences under Muslim Women (Protection of Rights on Marriage) Act 2019

Nahas Vs The State of Kerala

Kerala HC

03/08/2020

Bail Appl. No. 9163 of 2019

About/from the judgment:

"When there are specific provision and specific procedure contemplated for consideration of bail by the Magistrate Court under Section 7(c) of the Act, 2019, whether an application under Section 438 Cr.P.C. is to be entertained is the question in this case. There is indeed no prohibition of the applicability of Section 438 Cr.P.C. in the Act, 2019. Section 18 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 clearly says that nothing in Section 438 of the Cr.P.C. shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under that Act. But, there is no such prohibitory Section in the Act, 2019 restraining the court in entertaining an application under Section 438 Cr.P.C. Therefore, it cannot be said that there is a total bar to entertain an application under Section 438 Cr.P.C. if an offence under the Act, 2019 is alleged against an accused.
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Therefore, from the above discussions, the following conclusions are emerged :

(i) An application under Section 438 Cr.P.C. is not barred in a case in which an offence under the provisions of Act, 2019 is alleged. But, if an accused wants to avail the right under Section 438 Cr.P.C., he should specifically plead in an application under Section 438 Cr.P.C. about the reasons for not approaching the Magistrate under Section 7(c) of the Act, 2019.

(ii) If an accused in a case registered under the provisions of the Act, 2019 filed a Bail Application before the Magistrate under Section 7(c), his personal presence before the Magistrate is not necessary till final orders are passed in the Bail Application. The personal presence of the victim is also not needed. The accused can file the Bail Application through a lawyer if he intends to do so. The victim also can contest the bail application through a lawyer if she decides so.

(iii) If a Bail Application is filed under Section 7(c) of the Act, 2019, the Magistrate should hear the married Muslim woman upon whom talaq is pronounced.

(iv) The order passed in a Bail Application filed under Section 7(c) should be a speaking order.

(v) If a Bail Application filed by an accused under section 7(c) of the Act, 2019 is allowed, the Magistrate can direct the accused to appear before the court within a short period to comply the bail conditions including the execution of bond, etc.

(vi) If a Bail Application is dismissed by the learned Magistrate under Section 7(c) of the Act, 2019, the Investigating Officer can take up follow up action and arrest the accused, if necessary.

(vii) If a Bail Application is dismissed by the learned Magistrate under Section 7(c) of the Act, 2019, the accused can challenge that order, if he intends to do so, in accordance with law. At that stage, the accused can even file an application under Section 438 Cr.P.C., if there is an apprehension of arrest.

(viii) If an application under Section 7(c) is allowed, the married Muslim woman upon whom a talaq is pronounced can challenge that order in accordance with law."

Read the Judgment

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