TMI Blog2020 (12) TMI 1379X X X X Extracts X X X X X X X X Extracts X X X X ..... IYA SABRI VERSUS UNION OF INDIA AND OTHERS IN RE: MUSLIM WOMEN S QUEST FOR EQUALITY VERSUS JAMIAT ULMA-I-HIND [ 2017 (9) TMI 1302 - SUPREME COURT ], and to liberate‟ Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men. Even in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, where a bar is interposed by the provisions of Section 18 and Sub-section (2) of Section 18-A on the application of Section 438 of the CrPC, this Court has held that the bar will not apply where the complaint does not make out a prima facie case for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in PRATHVI RAJ CHAUHAN VERSUS UNION OF INDIA (UOI) AND ORS. [ 2020 (2) TMI 1705 - SUPREME COURT] held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second respondent and the appellant s son was solemnized on 14 May 2016. They have a child who was born in May 2017. On 27 August 2020, the second respondent lodged a first information report, complaining of offences under the provisions of Section 498-A read with Section 34 of the Indian Penal Code [ IPC] and the Muslim Women (Protection of Rights on Marriage) Act 2019 [ Act] . On 27 August 2020, the first information report, being FIR No 908, was lodged at North Parur Police Station, District Ernakulam Rural. Insofar as is material to the controversy in the present appeal, the FIR contains an allegation that on 5 December 2019, at about 2.30pm, the appellant s son pronounced talaq three times at their house. Following this, it has been stated, the appellant s son entered into a second marriage. 4 The Kerala High Court was moved with an application for anticipatory bail by both petitioners. The first application was withdrawn [ B.A. No. 5748 of 2020, order dated 14.09.2020 (Kerala High Court)] , apparently due to a lack of proper pleadings. The second application, it has been recorded by the High Court, [ B.A. No. 5944 of 2020, order dated 09.10.2020 (Kerala High Court)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with imprisonment for a term, which may extend to three years. The prohibition in Sections 3 and 4 is evidently one which operates in relation to a Muslim husband alone. This is supported by the Statement of Objects and Reasons accompanying the Muslim Women (Protection of Rights on Marriage) Bill 2019, when it was introduced in the Parliament. The reasons for the introduction of the bill specifically stated that the bill was to give effect to the ruling of this court in Shayara Bano v. Union of India [(2017) 9 SCC 1] , and to liberate‟ Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men. It is in this context that the provisions of Section 7 would have to be interpreted. Section 7 provides as follows: 7. Offences to be cognizable, compoundable, etc : Notwithstanding anything contained in the Code of Criminal Procedure, 1973, - (a) an offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage; (b) an offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no person accused of an offence punishable under this Act shall be released on bail . But what follows is equally important, because it conditions what precedes it. Two conditions follow. One of them is in the realm of procedure while the second is substantive. The former requires a hearing to be given to the married Muslim woman upon whom talaq has been pronounced. The latter requires the court to be satisfied that there are reasonable grounds for granting bail to such person . This substantive condition is only a recognition of something which is implicit in the judicial power to grant bail. No court will grant bail unless there are reasonable grounds to grant bail. All judicial discretion has to be exercised on reasonable grounds. Hence, the substantive condition in clause (c) does not deprive the court of its power to grant bail. Parliament has not overridden the provisions of Section 438 of the CrPC. There is no specific provision in Section 7(c), or elsewhere in the Act, making Section 438 inapplicable to an offence punishable under the Act. The power of the court to grant bail is a recognition of the presumption of innocence (where a trial and conviction is yet to take pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. The issue before this Court was whether an order of anticipatory bail can be made by a Court of Session or High Court in the case of an alleged offence falling under Rule 184. This Court speaking through Justice P.N. Bhagwati (as he then was) held: 3 It is not possible to read Rule 184 as laying down a self-contained code for grant of bail in case of a person accused or convicted of contravention of any rule or order made under the Rules so that the power to grant bail in such a case must be found only in Rule 184 and not in the Code of Criminal Procedure. Rule 184 cannot be construed as displacing altogether the provisions of the CrPC in regard to bail in case of a person accused or convicted of contravention of any Rule or order made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not apply to offences contemplated by Rule 184 of the Rules. There is, however, no such provision in the Code. In these circumstances, therefore, the Legislature in its wisdom left it to the Court to bring about a harmonious construction of the two statutes so that the two may work and stand together. This is also fully in consonance with the principles laid down by this Court in construing the non obstante clauses in the statutes (emphasis added) 13 Certain other statutes expressly exclude the provisions of Section 438 of the CrPC. The provisions of Section 7(c) of the Act must be distinguished from provisions which are contained in such statutes. For instance, the Maharashtra Control of Organised Crime Act, 1999 [ MCOCA] explicitly excludes the application of Section 438 of CrPC. Section 21 (3) of MCOCA stipulates: (3) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act. 14 The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 also contains similar provisions, which exclude the application of Section 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, where a bar is interposed by the provisions of Section 18 and Sub-section (2) of Section 18-A on the application of Section 438 of the CrPC, this Court has held that the bar will not apply where the complaint does not make out a prima facie case for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in Chauhan (supra) held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. 18 For the above reasons, we have come to the conclusion that on a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Act, there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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