RAHNA JALAL versus STATE OF KERALA AND ANOTHER

[2020] 13 S.C.R. 621

RAHNA JALAL

STATE OF KERALA AND ANOTHER

(Criminal Appeal No. 883 of 2020)DECEMBER 17, 2020

[DR. DHANANJAYA Y CHANDRACHUD,INDU MALHOTRA AND INDIRA BANERJEE, JJ.]

Code of Criminal Procedure, 1973: s.438 – Grant ofanticipatory bail – Whether provisions of s.7(c) of the Muslim Women(Protection of Rights on Marriage) Act, 2019 would bar the grantof anticipatory bail under s.438 to the mother-in-law of the muslimwoman upon whom triple talaq was pronounced by her husband –Held: The provisions of s.7(c) of the Act, 2019 apply to the Muslimhusband – The offence which is created by s.3 of the Act, 2019 ison the pronouncement of talaq by Muslim husband upon hiswife – s.4 of the Act, 2019 makes such act of the Muslim husbandpunishable with imprisonment – The mother-in-law of the aggrievedwoman cannot be accused of the offence of pronouncement of tripletalaq under the Act as the offence can only be committed by Muslimman – Thus, in this situation, mother-in-law cannot be denied grantof anticipatory bail – Muslim Women (Protection of Rights onMarriage) Act, 2019 – s.7(c).

Code of Criminal Procedure, 1973: s.438 – FIR complainingof offence under provisions of s.498A IPC against the mother-in-law – Grant of anticipatory bail – Held: In view of vague and generalnature of allegations made in the FIR, bereft of details, appellant-mother-in-law should not be denied the benefit of grant ofanticipatory bail – Penal Code, 1860 – s.498A.

Muslim Women (Protection of Rights on Marriage) Act, 2019:s.7(c) – Whether s.7(c) of the Act, 2019 bars the power of the Courtto grant anticipatory bail under s.438 CrPC – Held: plainconstruction of s.7(c) would indicate that it does not impose fetteron the power of the Magistrate to grant bail, save and except, forthe stipulation that before doing so, the married Muslim woman,upon whom talaq is pronounced, must be heard and there shouldbe satisfaction of the Magistrate of the existence of reasonable

Agrounds for granting bail to the person – This implies that evenwhile entertaining an application for grant of anticipatory bail foran offence under the Act, the competent court must hear the marriedMuslim woman who has made the complaint, as prescribed unders.7(c) of the Act – Only after giving the married Muslim woman ahearing, can the competent court grant bail to the accused – ThisBinterpretation is fortified by the fact that the legislature has notexpressly barred the application of s.438, CrPC – Code of CriminalProcedure, 1973 – s.438.

Muslim Women (Protection of Rights on Marriage) Act, 2019:s.7 – Interpretation of – Held: Under clause (a) of s.7, the offenceCis cognizable, if the information is given by the married Muslimwoman or person related to her by blood or marriage to the officerin charge of police station of the commission of the offence –Under clause (b), the offence is compoundable at the instance ofthe married Muslim woman upon whom the talaq is pronounced –DHowever, in terms of clause (b), the permission of the Magistrate isrequired – The Magistrate can specify the terms and conditions forcompounding – Facially, clause (c) begins with the words “no personaccused of an offence punishable under this Act shall be releasedon bail” – But two conditions follow – One of them is in the realm ofprocedure while the second is substantive – The former requires aEhearing to be given to the married Muslim woman upon whom talaqhas been pronounced – The latter requires the court to be “satisfiedthat there are reasonable grounds for granting bail to such person”– This substantive condition is only recognition of something whichis implicit in the judicial power to grant bail – No court will grantFbail unless there are reasonable grounds to grant bail – All judicialdiscretion has to be exercised on reasonable grounds – Hence, thesubstantive condition in clause (c) does not deprive the court of itspower to grant bail – Parliament has not overridden the provisionsof s.438, CrPC – There is no specific provision in s.7(c), or elsewhere

in the Act, making s.438 inapplicable to an offence punishable underGthe Act.

Allowing the appeal, the Court

HELD: 1. Under Section 3, pronouncement of talaq by aMuslim husband upon his wife has been rendered void and illegal.HUnder Section 4, Muslim husband who pronounces talaq upon

his wife, as referred to in Section 3, is punishable withimprisonment for term, which may extend to three years. Theprohibition in Sections 3 and 4 is evidently one which operates inrelation to Muslim husband alone. This is supported by theStatement of Objects and Reasons accompanying the MuslimWomen (Protection of Rights on Marriage) Bill 2019, when itwas introduced in the Parliament. The reasons for the introductionof the bill specifically stated that the bill was to give effect to theruling of this court in *Shayara Bano and to ‘liberate’ Muslimwomen from the customary practice of talaq-e-biddat (divorce bytriple talaq) by Muslim men. [Para 8][627-D-E]

*Shayara Bano v. Union of India (2017) 9 SCC

1:[2017] 9 SCR 797 – relied on.

2. The provisions of Section 7(c) apply to the Muslimhusband. The offence which is created by Section 3 is on thepronouncement of talaq by Muslim husband upon his wife.Section 3 renders the pronouncement of talaq void and illegal.Section 4 makes the Act of the Muslim husband punishable withimprisonment. Thus, on preliminary analysis, it is clear that theappellant as the mother-in-law of the second respondent cannotbe accused of the offence of pronouncement of triple talaq underthe Act as the offence can only be committed by Muslim man.Under clause (c) of Section 7, Parliament has provided that noperson who is accused of an offence punishable under the Actshall be released on bail unless the Magistrate, on an applicationfiled by the accused and after hearing the married Muslim womanupon whom the talaq is pronounced, is satisfied that there arereasonable grounds for granting bail. [Paras 8, 9][628-C-F]

3. Section 7 begins with non-obstante clause, whichoperates “notwithstanding anything contained” in the CrPC.However, it is equally necessary to emphasize that the non-obstante clause operates only in the area covered by clauses (a),(b) and (c). Under clause (a), the offence is cognizable if theinformation is given by the married Muslim woman or personrelated to her by blood or marriage to the officer in charge of apolice station of the commission of the offence. Under clause (b),

Athe offence is compoundable at the instance of the married Muslimwoman upon whom the talaq is pronounced. However, in clause(b), the permission of the Magistrate is required. The Magistratecan specify the terms and conditions for compounding. Facially,clause (c) begins with the words “no person accused of an offencepunishable under this Act shall be released on bail”. But whatBfollows is equally important, because it conditions what precedesit. Two conditions follow. One of them is in the realm of procedurewhile the second is substantive. The former requires hearingto be given to the married Muslim woman upon whom talaq hasbeen pronounced. The latter requires the court to be “satisfiedCthat there are reasonable grounds for granting bail to suchperson”. This substantive condition is only recognition ofsomething which is implicit in the judicial power to grant bail. Nocourt will grant bail unless there are reasonable grounds to grantbail. All judicial discretion has to be exercised on reasonablegrounds. Hence, the substantive condition in clause (c) does notDdeprive the court of its power to grant bail. Parliament has notoverridden the provisions of Section 438 of the CrPC. There isno specific provision in Section 7(c), or elsewhere in the Act,making Section 438 inapplicable to an offence punishable underthe Act. Thus, on true and harmonious construction of SectionE438 of CrPC and Section 7(c) of the Act, there is no bar on grantinganticipatory bail for an offence committed under the Act, providedthat the competent court must hear the married Muslim womanwho has made the complaint before granting the anticipatory bail.It would be at the discretion of the court to grant ad-interim reliefto the accused during the pendency of the anticipatory bailFapplication, having issued notice to the married Muslim woman.[Paras 10, 18][628-F-H; 629-A-D; 634-A-B]

Hema Mishra v. State of U.P. (2014) 4 SCC 453: [2014]1 SCR 465; Balchand Jain v. State of Madhya Pradesh(1976) 4 SCC 572: [1977] 2 SCR 52; Prathvi RajGChauhan v. Union of India and Others (2020) 4 SCC727 – relied on

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 883 of 2020.

From the Judgment and Order dated 02.11.2020 of the High Courtof Kerala at Ernakulam in Bail Application No.6981 of 2020.

Haris Beeran, Radha Shyam Jena, Advs. for the Appellant.

V. Chitambaresh, Sr. Adv., Harshad V. Hameed, GovindVenugopal, Dileep Poolakkot, Ms. Priyanka Prakash, Ms. Beena Prakash,G. Prakash, Advs. for the respondents.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. This appeal arises from judgment of learned Single Judgeof the High Court of Kerala, rejecting the application for anticipatorybail under Section 438 of the Code of Criminal Procedure 1973[1].Originally, the Special Leave Petition under Article 136 of the Constitutionwas filed by two petitioners. The first petitioner is the spouse of thesecond respondent, who has filed the complaint leading to the registrationof the first information report. The second petitioner is the mother of thefirst petitioner. By an order of this Court dated 3 December 2020, theSpecial Leave Petition was not entertained at the behest of the firstpetitioner and he was granted time to surrender before the competentcourt of jurisdiction and apply for regular bail.

3. The issue which survives in the present appeal is whether theHigh Court was justified in declining the prayer for anticipatory bail movedby the appellant (the second petitioner in the Special Leave Petition as itwas originally filed). The marriage between the second respondent andthe appellant’s son was solemnized on 14 May 2016. They have child

1 CrPC

Awho was born in May 2017. On 27 August 2020, the second respondentlodged first information report, complaining of offences under theprovisions of Section 498-A read with Section 34 of the Indian PenalCode[2]and the Muslim Women (Protection of Rights on Marriage) Act2019[3]. On 27 August 2020, the first information report, being FIR No908, was lodged at North Parur Police Station, District Ernakulam Rural.BInsofar as is material to the controversy in the present appeal, the FIRcontains an allegation that on 5 December 2019, at about 2.30pm, theappellant’s son pronounced talaq three times at their house. Followingthis, it has been stated, the appellant’s son entered into second marriage.

4. The Kerala High Court was moved with an application forCanticipatory bail by both petitioners. The first application was withdrawn[4],apparently due to lack of proper pleadings. The second application, ithas been recorded by the High Court,[5]was not pressed since there wasa chance of settlement between the complainant and her spouse. Sinceno settlement occurred, the High Court was moved for grant ofDanticipatory bail.[6]The Single Judge of the High Court, on 02 November2020, while declining to grant anticipatory bail observed:

“If the prosecution case is correct, the 1[st ]petitioner is now enjoyingwith his second wife when the matrimonial relationship with thede facto complainant is in existence.”

EThe order of the High Court contains no reason why the appellantwas being denied anticipatory bail.

5. We have heard Mr Haris Beeran, learned counsel on behalf ofthe appellant. Mr. V. Chitambaresh, learned senior counsel with Mr.Harshad V. Hameed, learned counsel for the second respondent; andFMr. G. Prakash, learned counsel for the State of Kerala.

6. Mr. V. Chitambaresh, learned senior counsel has submittedthat the power of the court to grant anticipatory bail under Section 438of the CrPC has been taken away by the provisions of Section 7(c) ofthe Act. Opposing this submission, Mr. Haris Beeran has argued thatGSection 7(c) of the Act provides no express prohibition on the exercise

2 IPC

3 Act

4 B.A. No. 5748 of 2020, order dated 14.09.2020 (Kerala High Court)

5 B.A. No. 5944 of 2020, order dated 09.10.2020 (Kerala High Court)H6 B.A. No. 6981 of 2020

of the power of the court to grant anticipatory bail.[7]This submissionneeds close scrutiny for the court to deduce as to whether the provisionsof Section 7(c) would bar the grant of anticipatory bail under Section438 of the CrPC.

7. Sections 3 and 4 of the Act provide as follows:

“3. Talaq to be void and illegal: Any pronouncement of talaqby Muslim husband upon his wife, by words, either spoken orwritten or in electronic form or in any other manner whatsoever,shall be void and illegal.

4. Punishment for pronouncing talaq: Any Muslim husbandwho pronounces talaq referred to in Section 3 upon his wife shallbe punished with imprisonment for term which may extend tothree years, and shall also be liable to fine.”

8. Under Section 3, pronouncement of talaq by Muslimhusband upon his wife has been rendered void and illegal. UnderSection 4, Muslim husband who pronounces talaq upon his wife,as referred to in Section 3, is punishable with imprisonment for term,which may extend to three years. The prohibition in Sections 3 and 4 isevidently one which operates in relation to Muslim husband alone.This is supported by the Statement of Objects and Reasonsaccompanying the Muslim Women (Protection of Rights on Marriage)Bill 2019, when it was introduced in the Parliament. The reasons for theintroduction of the bill specifically stated that the bill was to give effectto the ruling of this court in Shayara Bano v. Union of India [(2017) 9SCC 1], and to „liberate Muslim women from the customary practice oftalaq-e-biddat (divorce by triple talaq) by Muslim men. It is in thiscontext 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 CriminalProcedure, 1973, -

(a) an offence punishable under this Act shall be cognizable, ifinformation relating to the commission of the offence is given toan officer in charge of police station by the married Muslim

7 We note that the appellant’s counsel has placed reliance on the judgment and orderof the Kerala High Court dated 3 August 2020 in the case of Nahas v. State of Kerala,B.A. No. 9163 of 2019 to support their submission.

Awoman upon whom talaq is pronounced or any person related toher by blood or marriage;

(b) an offence punishable under this Act shall be compoundable,at the instance of the married Muslim woman upon whom talaqis pronounced with the permission of the Magistrate, on such termsBand conditions as he may determine;

(c) no person accused of an offence punishable under this Actshall be released on bail unless the Magistrate, on an applicationfiled by the accused and after hearing the married Muslim womanupon whom talaq is pronounced, is satisfied that there areCreasonable grounds for granting bail to such person.”

The provisions of Section 7(c) apply to the Muslim husband. Theoffence which is created by Section 3 is on the pronouncement of atalaq by Muslim husband upon his wife. Section 3 renders thepronouncement of talaq void and illegal. Section 4 makes the Act of theMuslim husband punishable with imprisonment. Thus, on preliminaryDanalysis, it is clear that the appellant as the mother-in-law of the secondrespondent cannot be accused of the offence of pronouncement oftriple talaq under the Act as the offence can only be committed by aMuslim man.

9. Having said that, we shall now deal with the contention thatESection 7(c) of the Act bars the power of the court to grant anticipatorybail under Section 438 of the CrPC. Under clause (c) of Section 7,Parliament has provided that no person who is accused of an offencepunishable under the Act shall be released on bail unless the Magistrate,on an application filed by the accused and after hearing the marriedFMuslim woman upon whom the talaq is pronounced, is satisfied thatthere are reasonable grounds for granting bail.10. Section 7 begins with non-obstante clause, which operates“notwithstanding anything contained” in the CrPC. However, it is equallynecessary to emphasize that the non-obstante clause operates only inGthe area covered by clauses (a), (b) and (c). Under clause (a), the offenceis cognizable if the information is given by the married Muslim womanor person related to her by blood or marriage to the officer in charge ofa police station of the commission of the offence. Under clause (b), theoffence is compoundable at the instance of the married Muslim womanupon whom the talaq is pronounced. However, in clause (b), the permissionHof 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 Act shall bereleased on bail”. But what follows is equally important, because itconditions what precedes it. Two conditions follow. One of them is inthe realm of procedure while the second is substantive. The formerrequires hearing to be given to the married Muslim woman upon whomtalaq has been pronounced. The latter requires the court to be “satisfiedthat there are reasonable grounds for granting bail to such person”. Thissubstantive condition is only recognition of something which is implicitin the judicial power to grant bail. No court will grant bail unless thereare reasonable grounds to grant bail. All judicial discretion has to beexercised on reasonable grounds. Hence, the substantive condition inclause (c) does not deprive the court of its power to grant bail. Parliamenthas not overridden the provisions of Section 438 of the CrPC. There isno specific provision in Section 7(c), or elsewhere in the Act, makingSection 438 inapplicable to an offence punishable under the Act. Thepower of the court to grant bail is recognition of the presumption ofinnocence (where trial and conviction is yet to take place) and of thevalue of personal liberty in all cases. Liberty can, of course, be regulatedby law which is substantively and procedurally fair, just and reasonableunder Article 21. In Hema Mishra v. State of U.P. (2014) 4 SCC 453,this Court emphasized on the mandate of constitutional court to protectthe liberty of person from being put in jeopardy on account of baselesscharges. This Court held that writ court is even empowered to grantanticipatory bail inspite of statutory bar imposed against the grant ofsuch relief.

11. The statutory text indicates that Section 7(c) does not imposean absolute bar to the grant of bail. On the contrary, the Magistrate maygrant bail, if satisfied that “there are reasonable grounds for granting bailto such person” and upon complying with the requirement of hearing themarried Muslim woman upon whom talaq is pronounced. Hence, thoughSection 7 begins with non obstante clause which operates in relationto the CrPC, plain construction of Section 7(c) would indicate that itdoes not impose fetter on the power of the Magistrate to grant bail,save and except, for the stipulation that before doing so, the marriedMuslim woman, upon whom talaq is pronounced, must be heard andthere should be satisfaction of the Magistrate of the existence ofreasonable grounds for granting bail to the person. This implies that evenwhile entertaining an application for grant of anticipatory bail for anoffence under the Act, the competent court must hear the married Muslimwoman who has made the complaint, as prescribed under Section 7(c)

Aof the Act. Only after giving the married Muslim woman hearing, canthe competent court grant bail to the accused.

12. The above interpretation is fortified by the fact that thelegislature has not expressly barred the application of Section 438 ofCrPC. In this context, it would be useful to refer to an earlier decision ofBthis Court in Balchand Jain v. State of Madhya Pradesh (1976) 4SCC 572. three judge Bench of this Court had to interpret Rule 184 ofthe Defence and Internal Security of India Rules, 1971, which providedas follows:

“Rule 184. Notwithstanding anything contained in the CrPC, 1898(V of 1898) no person accused or convicted of contravention ofCthese Rules or orders made thereunder shall, if in custody, bereleased on bail or his own bond unless-

(a) the prosecution has been given an opportunity to oppose theapplication for such release, and

(b) where the prosecution opposes the application and theDcontravention is of any such provision of these Rules or ordersmade thereunder as the Central Government or the StateGovernment may by notified order specify in this behalf, the Courtis satisfied that there are reasonable grounds for believing that heis not guilty of such contravention.”

EThe issue before this Court was whether an order of anticipatorybail can be made by Court of Session or High Court in the case of analleged offence falling under Rule 184. This Court speaking throughJustice P.N. Bhagwati (as he then was) held:

“3…It is not possible to read Rule 184 as laying down self-Fcontained code for grant of bail in case of person accused orconvicted of contravention of any rule or order made under theRules so that the power to grant bail in such case must be foundonly in Rule 184 and not in the Code of Criminal Procedure. Rule184 cannot be construed as displacing altogether the provisions ofthe CrPC in regard to bail in case of person accused or convictedGof contravention of any Rule or order made under the Rules. Theseprovisions of the CrPC must be read along with Rule 184 and fulleffect must be given to them except in so far as they are, byreason of the non obstante clause overridden by Rule 184.”

This Court, harmoniously constructed Rule 184 and Section 438of the CrPC and held:H

“4… Section 438 and Rule 184 thus operate at different stages,one prior to arrest and the other, after the arrest and there is nooverlapping between these two provisions so as to give rise to aconflict between them. And consequently, it must follow as anecessary corollary that Rule 184 does not stand in the way of aCourt of Session of High Court granting “anticipatory bail” underSection 438 to person apprehending arrest on an accusation ofhaving committed contravention of any rule or order made underthe Rules.

5. But even if Rule 184 does not apply in such case, the policybehind this rule would have to be borne in mind by the court whileexercising its power to grant “anticipatory bail” under Section438….When person apprehending arrest on accusation of havingcommitted contravention of any rule or order made under theRules applies to the court for direction under Section 438, thecourt should not ordinarily grant him “anticipatory bail” under thatsection unless notice has been issued to the prosecution giving it

an opportunity to oppose the application and in case thecontravention is of rule or order specially notified in this behalf,the court is satisfied that there are reasonable grounds for believingthat he is not guilty of such contravention..”

Justice Fazal Ali in his concurring opinion held that the aboveview is in consonance with the principles applicable to the interpretationof non obstante clauses in statutes. The learned judge observed:

“15….Now if the intention of the Legislature were that theprovisions of Section 438 should not be applicable in cases fallingwithin Rule 184, it is difficult to see why the Legislature shouldnot have expressly saved Rule 184 which was already there whenthe new Code of 1973 was enacted and excepted Rule 184 out ofthe ambit of Section 438. In other words, if the intention ofprovision of Rule 184 of the Rules were to override theprovisions of Section 438 of the Code, then the Legislatureshould have expressly stated in so many words that theprovisions of Section 438 of the Code shall not apply tooffences 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 bringabout harmonious construction of the two statutes so that the

632SUPREME COURT REPORTS

Atwo may work and stand together. This is also fully in consonancewith the principles laid down by this Court in construing the nonobstante clauses in the statutes…”

(emphasis added)

13. Certain other statutes expressly exclude the provisions ofBSection 438 of the CrPC. The provisions of Section 7(c) of the Act mustbe distinguished from provisions which are contained in such statutes.For instance, the Maharashtra Control of Organised Crime Act, 1999[8]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 toany case involving the arrest of any person on an accusation ofhaving committed an offence punishable under this Act.”

14. The Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act 1989 also contains similar provisions, which exclude theDapplication of Section 438 of CrPC. Sections 18 and 18-A provide asfollows:

“18. Section 438 of the Code not to apply to personscommitting an offence under the Act.— Nothing in Section438 of the Code shall apply in relation to any case involving theEarrest of any person on an accusation of having committed anoffence under this Act.

18-A. No enquiry or approval required.—(1) For the purposesof this Act—

(a) preliminary enquiry shall not be required for registration of aFfirst information report against any person; or

(b) the investigating officer shall not require approval for the arrest,if necessary, of any person, against whom an accusation of havingcommitted an offence under this Act has been made, and noprocedure other than that provided under this Act or the CodeGshall apply.(2) The provisions of Section 438 of the Code shall not apply to acase under this Act, notwithstanding any judgment or order ordirection of any Court.”

H8 MCOCA

15. Section 18 explicitly excludes the application of Section 438of the CrPC in relation to any case involving the arrest of any person onan accusation of having committed an offence under the Act. Sub-section(2) of Section 18-A specifically excludes the application of the provisionsof Section 438 of the CrPC, notwithstanding any judgment, order ordirection of court. The provisions of Section 18 and 18A have beeninterpreted by three Judge Bench of this Court in Prathvi Raj Chauhanv. Union of India and Others (2020) 4 SCC 727 (“Chauhan”). JusticeArun Mishra speaking for himself and Justice Vineet Saran, whileconstruing these provisions, observed that:“11. Concerning the applicability of provisions of Section 438 CrPC,it shall not apply to the cases under the 1989 Act. However, if thecomplaint does not make out prima facie case for applicabilityof the provisions of the 1989 Act, the bar created by Sections 18and 18-A(i) shall not apply. We have clarified this aspect whiledeciding the review petitions.”

16. The same view has been taken in the concurring judgment ofJustice S Ravindra Bhat, in the following observations:

“32. As far as the provision of Section 18-A and anticipatory bailis concerned, the judgment of Mishra, J. has stated that in caseswhere no prima facie materials exist warranting arrest in acomplaint, the court has the inherent power to direct pre-arrestbail.”

17. Thus, even in the context of legislation, such as the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act 1989, wherea bar is interposed by the provisions of Section 18 and Sub-section (2) ofSection 18-A on the application of Section 438 of the CrPC, this Courthas held that the bar will not apply where the complaint does not makeout “a prima facie case” for the applicability of the provisions of theAct. statutory exclusion of the right to access remedies for bail isconstrued strictly, for purpose. Excluding access to bail as remedy,impinges upon human liberty. Hence, the decision in Chauhan (supra)held that the exclusion will not be attracted where the complaint doesnot prima facie indicate case attracting the applicability of the provisionsof the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act 1989.

18. For the above reasons, we have come to the conclusion that

Aon true and harmonious construction of Section 438 of CrPC and Section7(c) of the Act, there is no bar on granting anticipatory bail for an offencecommitted under the Act, provided that the competent court must hearthe married Muslim woman who has made the complaint before grantingthe anticipatory bail. It would be at the discretion of the court to grantad-interim relief to the accused during the pendency of the anticipatoryBbail application, having issued notice to the married Muslim woman.

19. By the order of this Court dated 3 December 2020, interimprotection from arrest has been granted to the appellant. The primaryallegation which is pressed in aid to deny anticipatory bail is thepronouncement of triple talaq by the spouse of the second respondent.CIn the preceding paragraphs we have observed that an offence underthe Act is by the Muslim man who has pronounced talaq upon his spouse,and not the appellant, who is the mother-in-law of the second respondent.Though, Mr. G. Prakash, learned counsel appearing on behalf of theState of Kerala has adverted to the allegations under Section 498A ofDthe CrPC to oppose the grant of bail, we are of the view that havingregard to the vague and general nature of those allegations in the FIR,bereft of details, the appellant (whose son is in marital relationshipwith the second respondent) should not be denied the benefit of thegrant of anticipatory bail. It must also be noted that the JudicialMagistrate First Class-I, North Parur, by an order dated 23 OctoberE2020, while deciding the second respondent’s application[9]under Section23 of the Protection of Women from Domestic Violence Act, 2005 didnot find any substance in the allegations against the appellant.

20. We accordingly order and direct that in the event of the arrestof the appellant, she shall be released on bail by the competent court,Fsubject to her filing personal bond of Rs 25,000. The appellant shallcooperate in the course of the investigation by the Investigating Officer.

21. The appeal is allowed in the above terms.

22. Pending applications, if any, stand disposed of.

Devika Gujral

Appeal allowed