Point of Law: Grant of anticipatory Bail - Burden upon the Judge concerned to assess the “Special Circumstance” and its sufficiency or insufficiency to entertain the anticipatory bail.

JUDGMENT :

1. Heard Shri Ashok Nath Tripathi, learned counsel for the applicants; Shri Rajiv Lochan Shukla, learned counsel for the opposite party no.2 as well as learned A.G.A. for the State. Perused the records of the case.

2. Instant application u/s 438 Cr.P.C. on behalf of the applicants, namely, Ivan Masood, Masudur Rab, Smt. Fatmi Iqbal and Asif, being preferred before this Court straightaway, who are apprehending their arrest pursuant to F.I.R. lodged by opposite party No.2 as Case Crime No.499 of 2021, u/s 498-A, 307, 504, 506 I.P.C., Section 3/4 of Dowry Prohibition Act and Section 3/4 of Muslim Women (Protection of Rights on Marriage) Act, 2019, P.S.-Karaili, District-Prayagraj.

3. From the records of the case, it is evident that the applicants have approached this Court directly without getting their anticipatory bail application rejected from the Court of Session, Prayagraj. Capitalizing this issue, Shri Rajiv Lochan Shukla, learned counsel for the opposite party no.2 has raised two fold preliminary objections with regard to the maintainability of the instant application itself. They are :

(a) That the applicants without exhausting the forum i.e. approaching the Court of Session at the first instance, have directly approached this Court in exercise of power u/s 438 Cr.P.C. (U.P. Act No.4 of 2019) and without specifying those “special and extraordinary circumstances” for this bye-pass, as propounded in the Full Bench judgment of this Court in Ankit Bharti and others vs. State of U.P. and another reported in 2020 (3) ADJ 575 and thus the instant Anticipatory Bail Application is liable to be dismissed on this score alone, in the light of above judgment.

(b) Secondly, it was argued by the learned counsel for the opposite party no.2 that since the F.I.R. among many other sections of I.P.C. and D.P. Act, is also under Section 3/4 of Muslim Women (Protection of Rights on Marriage) Act, 2019, thus, the provisions of Section 7(c) of the Act 2019 are also attracted in this case. For the sake of brevity, the above provisions of Section 7(c) are spelled out herein below :-

“7. Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-

(c) no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person.”

From the above provisions, it was argued that 'the Magistrate while entertaining bail application filed by the accused, shall have to give an opportunity of hearing to that married muslim woman upon whom talaq is pronounced before adjudging the bail application. Thus, a notice is required to be served upon the “triple talaq victim” before adjudicating the present anticipatory bail.

4. Let us examine these two initial objections raised by the learned counsel for the opposite party no.2 one by one:-

(I) So far as approaching this Court directly u/s 438 Cr.P.C. is concerned, as to the maintainability of present anticipatory bail application, without exhausting the first ladder i.e. approaching to the Court of Sessions, without spelling out that special and extraordinary situation which prompted the applicants to approach this Court directly. In this regard, Shri Ashok Nath Tripathi, learned counsel for the applicants has drawn attention of this Court to Clause 7 of Section 438 Cr.P.C. (U.P. Act No.4 of 2019), which states :

"(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session."

On the plain reading of above clause, as argued by learned counsel for the applicants, it is explicit and self-contained, that the High Court and the Court of Sessions, both have been given concurrent powers to deal and decide the anticipatory bail, with only one rider that, if a person approaches the High