Rahul Chaturvedi,J. - (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 of Dowry Prohibition Act and Section 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 , 2020 3 ADJ 575and 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 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. ;