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Crl.Misc.No.7946/2023
KABC010219652023
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
PRESENT:
Sri Manjunatha, B.A., LL.B.,
XLV Addl. City Civil & Sessions Judge, Bengaluru.
CRL.MISC. No.7946/2023
Petitioners
1.Abdul Azeez
S/o Mohammed Fayaz,
a/a 31 Yrs.,
2.Mudasira Banu
D/o Mohammad Fayaz,
a/a 26 Yrs.,
both are r/a No.23/81,
9th B Cross, Nagawara Main
Road, near HKBK Engineering
College, Kuppuswamy Layout,
Arabic College Post,
Bangalore-560 045.
3.nadeem Shaikh @ Nadeem
Pasha
S/o Sardar, a/a 32 Yrs.,
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Crl.Misc.No.7946/2023
R/a No.12, 4th Cross, near Salam
Hotel, Mangammanapalya,
Bommanahalli Post, Bangalore560 045.
4.Mohammed Fayaz
S/o Mohammad Nizam Uddin,
a/a 44 Yrs.,
5.Zohra
D/o Mohammad Fayaz, a/a 23
Yrs.,
both are r/a no.12, 4th Cross,
Near Salam Hotel,
Mangammanapalya,
bommanahalli Post,
Bangalore-560 045.
(By Sri N. V. Abhishek, adv.,)
AND
Respondent
State by HAL P.S., Bengaluru.
(By the learned Public
Prosecutor)
2.Smt. Afreen Kausar.L,
D/o Liyakath Ali, a/a 25 Yrs.,
r/a No.12, 4th Cross,
Near Salam Hotel,
Mangammanapalya,
Bommanahalli Post,
Bangalore-560 045.

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Crl.Misc.No.7946/2023
ORDER ON BAIL PETITION FILED U/S.438 OF Cr.P.C.
The learned counsel for the petitioners has filed bail
petition U/s.438 of Cr.P.C., to grant anticipatory bail in favour of
the petitioners and also direct the respondent police to release
them on bail in the event of their arrest in their Crime
No.166/2023 in the interest of justice.
2. The brief facts of the bail petition is that on the basis of
the information of Smt.Afreen Kousar, a/a 24 Yrs., W/o first
petitioner, the Respondent Police have registered a case in
Crime No.166/2023 against the Petitioners for an offences
punishable U/s.498A of IPC and Sec.3 and 4 of DP Act and
Sec.4 of the Muslim Women(Protection of Rights on Marriage)
Act, 2019. The Petitioner being accused persons apprehending
their arrest by the Respondent Police and constrained to file
this petition to grant bail.
3. The learned Public Prosecutor has filed objection in
detail by reiterating the contents of the complaint and
contended that this bail petition is not maintainable in law or on
facts of the case since the investigation of the case is in
progress. Further, she has reiterated the contents of Complaint
and also contended that if Petitioners is granted bail then they
again will involve in causing mental and physical harassment to
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Crl.Misc.No.7946/2023
the Complainant and also chance of destroying the evidence,
tamper
the
prosecution
witnesses
and
hamper
the
investigation. Accordingly, prayed for dismissal of the bail
petition.
4.Heard the arguments of both sides and perused
materials on record. The defacto complainant i.e., respondent
No.2 appeared through her counsel and filed application
U/s.301(2) of Cr.P.C., and objection to the bail petition of
accused persons, and prayed for dismissal of the same.
5.The points that arises for consideration of this Court are
as under:
1.Whether the petitioner has made out
sufficient grounds for granting anticipatory bail
in his favour in Cr.No.166/2023 of Bandepalya
P.S., at this stage as sought for?
2. What order?
6.This Court has answered the above points are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
for the following:
REASONS
7. Point No.1: On considering the papers on record, it is
evident to note that the respondent police have registered case
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Crl.Misc.No.7946/2023
against the petitioners for the offences punishable U/s.498A of
IPC and Sec.3 and 4 of DP Act and Sec.4 of the Muslim
Women(Protection of Rights on Marriage) Act, 2019. The fact
that the petitioner No.1 is the husband of the complainantSmt.Afreen Kousar, and petitioners No.2 to 5 are the relatives
of the husband of the defacto complainant-Smt. Afreen Kousar,
which is not in dispute.
8.It is alleged that the marriage of complainant was
solemnized with accused No.1 on 4.7.2020, and at the time of
marriage on demand the accused persons have received cash
of Rs.1,00,000/- gold articles, watch etc., as dowry from the
parents of complainant. And after the marriage complainant
started to reside along with family members of accused No.1,
the accused persons subjected her to physical and mental
cruelty in demanding additional dowry by abusing and
assaulting her. The accused persons have also demanded for
gold articles at the time of naming ceremony of the child, after
the advise of police also the accused No.1 has not changed his
attitude, continued to harass the complainant in demanding
Rs.3,00,000/- and after receipt of the same, the accused No.1
again continued to harass the complainant, and unable to
tolerate the harassment of accused persons, on 22.07.2023 left
the matrimonial house, and on 8.8.2003 the sent a trple talaq
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Crl.Misc.No.7946/2023
notice through the advocate. Unable to bear the harassment of
accused persons, complainant constrained to file complaint
against the petitioners before respondent police.
9. It is submitted on behalf of the petitioners that they
have not committed alleged offences, as contended by the
complainant. The complainant had filed false complaint, with
intention to cause mental harassment to the petitioners. The
petitioners hail from a respectable family having deep roots in
the society without having any criminal antecedents. It is further
submitted they are ready to furnish surety to the satisfaction of
the Court on their release. Hence, they prayed to allow this
petition.
10. As against this the Learned Public Prosecutor filed a
detailed objections and during the course of her arguments
submitted that the investigation is still in progress and if they
are granted anticipatory bail at this stage there is every chance
of petitioners to abscond from the jurisdiction of this court,
intimidate the complainant, and witnesses, tamper the evidence
and hamper the investigation. Hence, submitted that the
petitioners are not entitled to be released on bail.
11.On the basis of arguments of learned counsel for
petitioners and the learned Prosecutor, verified the FIR and
relevant case papers.

The offence alleged against the
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Crl.Misc.No.7946/2023
petitioner is punishable U/s.498A of IPC and Sec.3 and 4 of DP
Act and Sec.4 of the Muslim Women(Protection of Rights on
Marriage) Act, 2019 and the said offences are not punishable
with death or imprisonment for life. But the offence U/s.498A of
IPC is though non-bailable, it is exclusively triable by the
Magistrate. This Court complied the provisions of Sec.7(c) of
The Muslim Women(Protection of Rights on marriage) Act, 2019
by giving sufficient opportunities to the defacto complainant to
submit her objections regarding talaq pronouncement.

By
analyzing the entire documents, it is found that there is a
matrimonial dispute between the complainant and petitioner
No.1.
12.In Criminal appeal No.883 of 2020(Arising out of SLP(Crl.)
No.5693 of 2020) Hon’ble Supreme Court held as follows:-
Sec.7 begins with a non-obstante clause, which operates
“notwithstanding anything contained” in the Cr.P.C., However, it
is equally necessary to emphasize that the non-obstante clause
operates only in the area covered by clauses(1), (b) and (c).
Under clause(1), the offence is cognizable if the information is
given by the married Muslim Woman or a person related to her
by blood or marriage to the office in charge of a police station of
the commission of the offence. Under clause(b), the offence is
compoundable at the instance of the married Muslim Woman
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Crl.Misc.No.7946/2023
upon whom the talaq is pronounced. However, in clause(b), the
permission of the Magistrate is required. the Magistrate can
specify the terms and conditions for compounding. Facially,
clause(c) begins with the words”no person accused of an
offence punishable under this Court 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
enquires 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 Cr.P.C., 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. Hence,
there is absolutely no reason to deny benefit of anticipatory bail
to the petitioners at this stage.

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Crl.Misc.No.7946/2023
13.It is well settled principle of law that the granting of bail
is discretionary power of the Court and every case should be
considered on the basis of facts of each case. The certified
copies of complaint and FIR produced by the petitioners
discloses that only after pronouncement of talaq, complaint has
been lodged by the complainant-Smt. Afreen Kousar, a/a 23
Yrs., who is the wife of petitioner No.1 at Bandepalya P.S., in
Crime No.166/2023 on 9.8.2023 at 18.00 hours for an offences
punishable U/s.498A of IPC and Sec.3 and 4 of DP Act and
Sec.4 of the Muslim Women(Protection of Rights on Marriage)
Act, 2019. The documents would discloses that there is a
matrimonial
dispute
between
the
petitioner
No.1
and
complainant. Admittedly, the petitioner No.1 is the husband of
the alleged complainant-Smt.Afreen Kousar, and petitioners
No.2 to 5 are the relatives of the husband of the complainantSmt. Afreen Kousar, against whom the filing of the complaint is
sufficient to draw apprehension in the minds of the petitioner
regarding his arrest in non-bailable offence.
14.Whether the petitioners have committed the alleged
offences as contended by the complainant is a matter, which
has to be decided only at the time of full-fledged trial. At this
juncture, when the petitioners are ready to abide by the terms
and conditions imposed by the court and when they are ready
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Crl.Misc.No.7946/2023
to offer due and adequate surety for their release on bail, then
this court is of the opinion that no purpose will be served by
allowing the respondent police to apprehend the petitioners and
to keep them in custody.

The petitioners are the permanent
residents as shown in the cause title and this fact has not been
disputed by the prosecution, as such the presence of petitioners
can be secured easily, hence, the question of absconding of the
petitioners does not arise at all. The objections raised by the
learned Public Prosecutor can be met by imposing stringent
conditions. Absolutely there is no grounds made out by the
prosecution to reject this bail petition. Hence, under these
circumstances, the petitioners have made out sufficient ground
for granting anticipatory bail in their favour at this stage as
prayed for as there exist reason to believe that they may be
arrested in non-bailable offences. Accordingly, I answer Point
No.1 in the affirmative.
15. Point No. 2: In view of answer of this Court on point
No.1, this court pass the following:ORDER
The bail petition filed by the petitioners U/s.438 of
Cr.P.C. is hereby allowed.
The petitioners are ordered to be released on bail
on their executing personal bond for Rs.1,00,000/-
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Crl.Misc.No.7946/2023
each with one surety for the like sum to the
satisfaction of the concerned I.O.,/Magistrate in the
event of their arrest in the case in Crime No.166/2022
of Bandepalya P.S., subject to following conditions:1.The Petitioners shall make themselves available for
interrogation by the I.O. as and when required till
the final report is filed. Further, they shall assist
the I.O. in further investigation of the case.
Further the Petitioner No.1 shall mark his
attendance once in a month i.e., first Sunday of
every month in between 10.00 a.m. and 2.00
p.m. before the I.O., till filing of final report or
further orders whichever is earlier.
2.The
Petitioners
shall
surrender
before
the
concerned Police within 30 days from the date of
this order without fail.

Further the Magistrate
shall has to comply Sec.7 of Muslim Women
(Protection of Rights on Marriage) Act, 2019
before granting bail.
3.They shall not directly or indirectly make any
inducement, threat or
promise to any person
acquainted with the facts of the case so as to
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Crl.Misc.No.7946/2023
dissuade him/ her from disclosing such facts to
the Court or to the concerned I.O.,
4.They shall not hamper further investigation of the
case and tamper with prosecution witnesses in
any
manner and
shall not
intimidate
the
complainant.
5.They shall not commit similar offences or any
offences in future.
6.They shall appear before the concerned Magistrate
Court as and when directed.
7.They shall not leave the jurisdiction of Bangalore
City without prior permission,
8.They shall not change their place of residence
outside the jurisdiction of Bangalore City without
prior intimation, and
9.They shall furnish the notarized copies of their
residential id address proof.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me
and then pronounced in open Court on this the 1st day of September, 2023)
(Manjunatha)
XLV Addl. CC & SJ, Bengaluru.

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Crl.Misc.No.7946/2023
Order pronounced in the open court
vide its separate order
ORDER
The bail petition filed by the petitioners
U/s.438 of Cr.P.C. is hereby allowed.
(Manjunatha)
XLV Addl. City Civil & Sessions Judge,
Bengaluru.