Case Name: NAHAS V. STATE OF KERALA
Judgement Date: 03/07/2020
Judges: Justice PV Kunhikrishnan
Under this case, the accused battled that on the off chance that he filed a Bail Application under the Magistrate Court under Section 7(c), there is each opportunity to remand him by the Magistrate in light of the fact that the Magistrate can consider the Bail Application simply in the wake of giving notification to the de-facto complainant.
He presented an application under Section 438 Cr.PC. is the main cure accessible to him. The issue considered by the Court was whether an accused associated with an offense under the Act, 2019 can record a request under Section 438 Cr.PC. without recording a Bail Application under Section 7(c) of the Act, 2019 before the Magistrate court concerned.
Refer to the provisions of the Act, the court noticed that there is no such prohibitory Section in the Act, 2019 (not at all like that in SC-ST Act) limiting the court in engaging an application under Section 438 Cr.PC.
The court noticed that a Magistrate can engage an application under Section 437(1) Cr.PC. just if the denounced is captured or kept without warrant by an official accountable for the police headquarters or the charged shows up under the court or the accused is brought under the court.
“Be that as it may, it is to be noticed that the three pre-conditions to consider a Bail Application under Section 437(1) Cr.PC. isn’t there in Section 7(c) of the Act, 2019.”, the judge said.
The Kerala High Court has held that Anticipatory Bail application under Section 438 Cr.PC. banned for a situation in which an offense under the provisions of Muslim Women (Protection of Rights on Marriage) Act, 2019 is claimed.
In any case, if an accused wants to avail under Section 438 Cr.PC., he ought to explicitly plead in an application under Section 438 Cr.PC. about the explanations behind not moving toward the Magistrate under Section 7(c) of the Act, 2019.
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