Tag Archives: Section 438 CrPC

Triple Talaq – Grant of Anticipatory Bail

The statutory text indicates that Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019 does not impose an absolute bar on grant of bail. On the contrary, the Magistrate may grant bail, if satisfied that “there are reasonable grounds for granting bail to such person” and upon complying with the requirement of hearing the married Muslim woman upon whom talaq is pronounced. Hence, though Section 7 begins with a non obstante clause which operates in relation to the CrPC, a plain construction of Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019 would indicate that it does not impose a fetter on the power of the Magistrate to grant bail, save and except, for the stipulation that before doing so, the married Muslim Woman, upon whom talaq is pronounced, must be heard and there should be a satisfaction of the Magistrate of the existence of reasonable grounds for granting bail to the person. This implies that even while entertaining an application for grant of anticipatory bail for an offence under the Act, the competent court must hear the married muslim woman who has made the complaint, as prescribed under Section 7(c) of the Act. Only after giving the married Muslim woman a hearing, can the competent court grant bail to the accused. Rahna Jalal v. State of Kerala, (2021) 1 SCC 733.

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Juvenile Justice Act – Exclusion of Provision of Anticipatory Bail

The implied exclusion of Section 438 essentially flows from Section 1(4) of the 2015 Act that confers on the provisions made therein in respect of arrest and detention the character of preeminence. The section is a clear manifestation of the legislative intent that the provisions of the 2015 Act dealing with arrest and detention must necessarily prevail over any other law for the time being in force. The 2015 Act represents an all encompassing and self contained code laying in place a separate and distinct procedure liable to be followed in case of arrest or detention of a child in conflict with law. It places significant and special safeguards in respect of the apprehension of a child in conflict with law. It is in that sense not an incarceration or detention by the police as normally understood. The extension of the provisions of Section 438 of the Criminal Procedure Code would clearly interfere with and disrupt the statutory process that is otherwise liable to be followed upon apprehension of a child. It must consequently be held that once a first information is registered or information otherwise recorded by the SJPU or the CWPO with regard to a child in conflict with law, the provisions of Section 438 stand impliedly excluded. In such a situation it is the provisions made in Sections 10 and 12 of the 2015 Act which alone must be permitted to operate and recognised in law to be applicable.  The only limited window in which Section 438 can be held to apply is the pre recordal of information stage with regard to an offense allegedly committed by a child. As noticed above, Section 10 comes into play only once information in respect of an offense comes to be recorded. Prior to that a child apprehending detention or deprivation of liberty is accorded no protection or avenue of redress under the 2015 Act. It is within this narrow confine alone that his right to invoke the jurisdiction of the Court of Sessions or the High Court must be recognised to exist and preserved. Shahaab Ali v. State of U.P., Cri. Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No. 597 of 2020 decided on 20.01.2020.

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Filed under Anticipatory Bail, Juvenile Justice Act