NAHAS Vs. STATE OF KERALA

JUDGEMENT

(1.) The above Bail Application is filed by the accused in Crime No.1303 of 2019 of Fort Kochi Police Station under Section 438 of the Code of Criminal Procedure (Cr.P.C.). This case is registered against the petitioner alleging offence punishable under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act , 2019 (For short, the Act, 2019).

(2.) The prosecution case is that the defacto complainant married the petitioner on 3.5.2015 as per religious rituals, and they were living as husband and wife. Subsequently, the petitioner with an intention to end the marital relationship with the defacto complainant sent a registered letter on 4.11.2019, pronouncing triple talaq to the complainant. Hence it is alleged that the petitioner committed the offence under Section 4 of the Act, 2019.

(3.) When this Bail Application came up for consideration, through Video Conference, this court informed the counsel for the petitioner that, when there is a specific provision regarding grant of bail in the Act 2019, it is always better for the petitioner to approach the Magistrate Court concerned under Section 7 (c) of the Act, 2019 before filing an application under Section 438 Cr.P.C. But, the counsel submitted that if the petitioner files a Bail Application before the Magistrate Court under Section 7(c) , there is every chance to remand the petitioner by the learned Magistrate because the learned Magistrate can consider the Bail Application only after issuing notice to the defacto complainant. Therefore, the counsel submitted that the petitioner would be in remand till Bail Application is considered by the learned Magistrate under Section 7(c) of the Act, 2019. The counsel also submitted that it would be an injustice to the petitioner, if he is remanded by the learned Magistrate before considering the Bail Application on merit under Section 7(c) of the Act, 2019. Therefore, the counsel submitted that an application under Section 438 Cr.P.C. is the only remedy to the petitioner.