28 Jun 2023 10:30 AM GMT
The Chhattisgarh High Court recently denied anticipatory bail to a Muslim man accused of pronouncing ‘talaq-e-biddat’ to his wife for ending their marriage. A case was registered against the accused under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which prescribes punishment for pronouncing triple talaq.Anticipating his arrest, the accused approached the...
The Chhattisgarh High Court recently denied anticipatory bail to a Muslim man accused of pronouncing ‘talaq-e-biddat’ to his wife for ending their marriage.
A case was registered against the accused under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which prescribes punishment for pronouncing triple talaq.
Anticipating his arrest, the accused approached the High Court for grant of an anticipatory bail, which was denied by the Court. Therefore, he filed this second successive application for anticipatory bail.
It was submitted for the accused-applicant that some facts were hidden by the opposite party at the time of hearing of first bail application. Further, it was contended that statements of witnesses could have been recorded by the investigating agency and from their statement, genuineness of FIR could have been judged.
It was also argued that ‘khula talaq’ was sent by the accused from the Islamic Court of Nagpur and no ‘talaq-e-biddat’ was pronounced against the complainant-wife.
On the other hand, the State opposed the prayer and submitted that anticipatory bail is not a right under Article 21 of the Constitution. Thus, successive pleas are not maintainable.
Reliance was placed upon the judgment of the Supreme Court in Mohd. Shamim Khan v. State of Jharkhand and judgment of the Allahabad High Court in Raj Bahadur Singh v. State of U.P., 2022 LiveLaw (AB) 493.
The Apex Court in Mohd. Shamim Khan had deprecated the practice of filing second anticipatory bail application after the first application is rejected. The Court also stressed on the following observation of the Allahabad High Court in Raj Bahadur Singh,
“If bail application of the accused under Section 439 is dismissed once, he can move second and successive bail application on the ground of substantial change in factual situation between the earlier bail application and the subsequent one, but filing of second and successive bail applications on the basis of new argument and new twists on the same facts cannot be encouraged…Section 439 relates to Constitutional right of the accused whereas Section 438 to his statutory right. The provisions of Section 438 should not be put to abuse at the instance of unscrupulous accused.”
Taking into consideration the above position of law and also observing that there is no change of circumstances and as the first anticipatory bail application was dismissed on merits, the Court dismissed the second anticipatory bail application as non-maintainable.
Case Title: Mohammed Husham v. State of Chhattisgarh
Citation: 2023 LiveLaw (Chh) 19
Case No.: MCRCA No. 652 of 2023
Order Dated: June 16, 2023
Counsel for the Applicant: Mr. Uttam Pandey, Advocate
Counsel for the State: Mr. Gagan Tiwari, Deputy Govt. Advocate
Click Here To Read/Download Order