# Ivan Masood & Ors v. State of U.P. & Anr

- **Citation:** (2021) 10 ILRA 13
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-10
- **Case number:** Bail U/S 438 CR.P.C. No. 12714 of 2021
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ivan-masood-ors-v-state-of-u-p-anr-46215
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973-Section 438 & Indian Penal
Code,1860-Sections 498-A, 307, 504, 506 &
Dowry Prohibition Act, 1961-Section 3⁄4 &
Muslim Women(Protection of Rights on
Marriage)Act, 2019-Section 3⁄4-applicationallowed-FIR lodged by wife after receiving
notice of Talaq-e-Ahsan from the applicantFIR was a counterblast to the alleged first
notice of talaq-no injuries on the record
attracting
section
307-relationship
was
already sour, after lodging FIR it became
bad to worse-in order to save parties from
permanent and irrevocable damage, in the
interest
of
justice
applicant
granted
bail.(Para 1 to 11)

The application is allowed. (E-6)

List of Cases cited:

## Text

10 All. Ivan Masood & Ors. Vs. State of U.P. & Anr.
13
was in custody for more than five years.
The learned counsel for the applicant has
also relied upon a decision of coordinate
Bench of this Court in the case of Vijay
Kumar Vs. State of U.P. in Bail
Application No. 11815 of 2019 decided on
09.08.2021 wherein the coordinate Bench
of this Court by relying upon the case of
Satya Brat Gain (Supra) and Paras Nath
Vishnoi (Supra), in the facts of the
aforesaid case had enlarged the accused on
bail.

32. Having considered the aforesaid
decisions, it would be clear that the said
decisions are distinguishable on facts and
in light of the decision of the Apex Court in
the Case of Harjit Singh (Supra) and for
the
reasons
already
incorporated
hereinabove, this Court is of the considered
view that it is not a fit case to grant bail to
the applicant which is accordingly rejected,
however, the Trial Court is directed to
expedite the trial and shall proceed without
granting any unnecessary adjournments to
either of the parties and an endevour be
made that the trial is completed within a
period of six months from the date, a
certified copy of this order is placed before
the Court concerned.

33. It is made clear that this order
shall not be construed as an expression of
opinion on merits of the case and shall in
no manner affect the trial as it has been
made
only
for
the
purposes
of
consideration of the bail application.

34. Accordingly, the bail application
is rejected.
----------
(2021)10ILR A13
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.08.2021
BEFORE

THE HON'BLE RAHUL CHATURVEDI, J

Bail U/S 438 CR.P.C. No. 12714 of 2021

Ivan Masood & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ashok Nath Tripathi

Counsel for the Opposite Parties:
G.A.,Sri Rajiv Lochan Shukla

A.
Criminal
Law
-
Code
of
Criminal
Procedure, 1973-Section 438 & Indian Penal
Code,1860-Sections 498-A, 307, 504, 506 &
Dowry Prohibition Act, 1961-Section 3⁄4 &
Muslim Women(Protection of Rights on
Marriage)Act, 2019-Section 3⁄4-applicationallowed-FIR lodged by wife after receiving
notice of Talaq-e-Ahsan from the applicantFIR was a counterblast to the alleged first
notice of talaq-no injuries on the record
attracting
section
307-relationship
was
already sour, after lodging FIR it became
bad to worse-in order to save parties from
permanent and irrevocable damage, in the
interest
of
justice
applicant
granted
bail.(Para 1 to 11)

The application is allowed. (E-6)

List of Cases cited:

1. Ankit Bharti & ors. Vs St. of U.P. & anr.
(2020) 3 ADJ 575

2. Arnesh Kumar Vs St. of Bih. & anr. (2014) 8
SCC 273 Joginder Kumar Vs St. of U.P.& ors.
(1994) 4 SCC 260 Sanaul Haque Vs St. of U.P.
& anr. (2008) Cri L J 1998

(Delivered by Hon'ble Rahul
Chaturvedi, J.)

(1) Heard Shri Ashok Nath Tripathi,
learned counsel for the applicants; Shri
Rajiv Lochan Shukla, learned counsel for
14 INDIAN LAW REPORTS ALLAHABAD SERIES
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 3⁄4
of Dowry Prohibition Act and Section 3⁄4 of
Muslim Women (Protection of Rights on
Marriage) Act, 2019, P.S.-Karaili, DistrictPrayagraj.

(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
reported in 2020 (3) ADJ 575 and 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 3⁄4 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.

(4) Let us examine these two
initial objections raised by the learned
counsel for the opposite party no.2 one by
one:-

(I) So far as approaching this
Court directly u/s 438 Cr.P.C. is concerned,
as to the maintainability of present
anticipatory
bail
application,
without
exhausting the first ladder i.e. approaching
to the Court of Sessions, without spelling
out that special and extraordinary situation
which prompted the applicants to approach
this Court directly. In this regard, Shri
Ashok Nath Tripathi, learned counsel for
the applicants has drawn attention of this
10 All. Ivan Masood & Ors. Vs. State of U.P. & Anr.
15
Court to Clause 7 of Section 438 Cr.P.C.
(U.P. Act No.4 of 2019), which states :

"(7) If an application under this
section has been made by any person to
the High Court, no application by the
same person shall be entertained by the
Court of Session."

On the plain reading of above
clause, as argued by learned counsel for the
applicants, it is explicit and self-contained,
that the High Court and the Court of
Sessions, both have been given concurrent
powers to deal and decide the anticipatory
bail, with only one rider that, if a person
approaches the High Court at the first
instance without exhausting his earlier
remedy i.e. approaching to the Court of
Sessions, then he would not be relegated
back to approach the Court of Sessions
after loosing this case from the High Court.

Shri Tripathi, learned counsel for
the applicants further submits for applying
Lord Wensleydale's Golden Rules of
Interpretation for any statute. [According to
him "Interpretation is the method by which
the true sense or meaning of the world is
understood. 'The meaning of an ordinary
word of the English language is not a
question of law. The proper construction of a
statute is a question of law. The purpose of
the interpretation of the statute is to unlock
the locks put by the legislature. For such
unlocking, keys are to be found out. These
keys may be termed as aids of interpretation
and the principles of interpretation. ..............'

It is a very useful rule in the
construction of a statute to adhere to
ordinary meaning of the words used, and to
the grammatical construction unless that is
at
variance
with
intention
of
the
Legislature to be collected from the statute
itself, or leads to any manifest absurdity or
repugnance, in which case the language
may be varied or modified so as to avoid
such inconvenience, but no further."]

Learned
counsel
for
the
applicants argued that, with the help and
aid of above Golden Rules of Interpretation
for knowing the true import of Clause (7)
of Section 438 Cr.P.C. (U.P. Act No.4 of
2019), it is explicit that the statute nowhere
speaks
about
the
"exceptional
or
extraordinary circumstance" which was
hammered and pointed out by Shri Shukla,
learned counsel for opposite party no.2 in
his preliminary objections.

Learned counsel for the opposite
party no.2 strenuously backed his argument
after deriving strength from the latest Full
Bench Court judgment; Ankit Bharti and
others vs State of U.P. and another, 2020
(3) ADJ 575 . Learned counsel has
emphasized upon paragraphs 16 and 18 of
said judgment, which are quoted herein
below:

"16. We, therefore, hold that the
conclusions as recorded in Vinod Kumar
on the meaning to be ascribed to
exceptional or special circumstances needs
no reconsideration. It must, as was noted
there, be left to the concerned Judge to
exercise the discretion as vested in him by
the statute dependent upon the facts
obtaining in a particular case.

"18. Viewed in that backdrop it is
manifest that it was open for the learned
Judge to assess the facts of each case to
form
an
opinion
whether
special
circumstances existed or not entitling the
applicant there to approach the High Court
directly. Considered from the aforesaid
perspective, it is manifest that Question (i)
as framed by the learned Judge is really
unwarranted. If the learned Judge was of
the opinion that the averments made in
support
of
the
existence
of
special
circumstances were "not appealing" [as he
chooses to describe it] or unconvincing,
nothing hindered the Court from holding
so."
16 INDIAN LAW REPORTS ALLAHABAD SERIES

On this, it has been argued by the
counsel for the opposite party no.2, that no
special circumstances has been mentioned
by the counsel for the applicants in his
pleadings.

The Full Bench decision of this
Court explicitly clear in this regard, as it
casts the burden upon the Judge concerned
to assess the "Special Circumstance" and its
sufficiency or insufficiency to entertain the
anticipatory bail.

In this regard, learned counsel for
the applicants, in para 4 of his petition
mentioned the reason for approaching to
this Court straightaway, which reads thus:

"4. That this is First Anticipatory
Bail Application of the applicants before
this Hon'ble Court. The applicants have
directly approached this Hon'ble Court
without
filing
any
Anticipatory
Bail
Application in the court below. It is
relevant to mention here that due to
pandemic Covid-19, applicants are unable
to approach the Court below and are
directly approaching to this Hon'ble Court
for consideration of their Anticipatory Bail
Application."

In
these
times
of
utter
uncertainty, where nobody can predict that
from when the district administration
would promulgate the lock-down on
account of recent pandemic and markets,
schools, institutions, offices are often
closed. It is highly unjust and risky to
adhere to the alleged self-created rider and
an additional technicality regarding the
forum entertaining anticipatory bail. On the
other hand, when the police personnel are
hotly chasing the applicants to any how nab
them in connection with above F.I.R., in
this time of utter confusion and uncertainty,
to ask the named accused to adhere with
self-created restrictions by the Courts
would be mockery of justice and the
system. In addition to this, the accusedapplicants consciously have given up their
one
remedy
available
to
them
and
approached the High Court directly, instead
of approaching to the Court of Sessions
with the risk, that if they loose their case
from the High Court, no second innings
would be available to them.

However, keeping in view the
judicial propriety, discipline and following
the conservative mode and the ratio laid
down in the Full Bench judgment, it is the
satisfaction of the judge concerned to
entertain any anticipatory bail application.
From Para-4 of the petition, quoted herein
above, I find that the reasons spelled out in
it are quite convincing and to my utmost
satisfaction. Thus, first objection raised by
learned counsel for opposite party no.2 is
hereby turned down.

(II) Now coming to the second
objection, that is, before deciding the
present anticipatory bail application on
behalf of applicants, it was argued by
learned counsel that keeping in view the
provisions of Section 7(c) of the Muslim
Women (Protection of Rights on Marriage)
Act, 2019, it is mandatory to give notice to
the victim of triple talaq and as such the
instant anticipatory bail application can not
be heard and decided in the absence of
victim or she being represented.

On this, it has been argued by
Shri Tripathi, learned counsel for the
applicants that the present F.I.R. is in
retaliation of the written notice for talaq
given by the Husband to his wife on
28.4.2021 (Annexure-2) and its service
upon opposite party no.2 on 11.5.2021.
Soon after the receipt of the first written
notice for talaq on 11.5.2021, the father of
the wife after due consultation with the
lawyers has managed to draft the present
F.I.R.
levelling
all
sorts
of
bogus
acquisitions
and
canards,
with
the
allegation of triple talaq upon her daughter
10 All. Ivan Masood & Ors. Vs. State of U.P. & Anr.
17
Sana Nasir. It is further contended by the
applicants' counsel, that had there been any
motive to adopt the procedure of Talaq-ebiddat
(having
instantaneous
and
irrevocable divorce), the husband would
not have given the first notice of talaq
dated 28.4.2021. All the allegations are
bogus, well-thought and after due legal
consultation to paste more serious and grim
look to entire episode.

It has been further argued by the
applicants' counsel that the Muslim Women
(Protection of Rights on Marriage) Act,
2019 provides a deterrent shield to those
muslim married ladies who suffer atrocities
from their husbands and are always on
tentacle hooks, who in fit of anger or
frustration adopt worst kind of Talaq i.e.
Talaq-e-Biddat. This type of talaq was
made punishable and strongly deprecated.
But it does not mean, that all forms of talaq
are prohibited by this enactment. As
mentioned above, that the husband had
chosen Talaq-e-Ahsan, an ideal way of
dissolving the muslim marriage, accepted
and acknowledged by Shariyat Law. This is
why, first written notice was given by the
husband. On this, it was argued that the
provisions of Muslim Women (Protection
of Rights on Marriage) Act, 2019 would
not apply in the facts of the present case.
Thus, there is no question of giving any
notice to the victim lady as per Section-7(c)
of this Act. Consequently, second objection
also goes to shambles.

Now coming to the merits of the case :

(5) It has been contended by the
learned counsel for the applicants that the
applicants have got no criminal antecedents
and
they
have
not
undergone
any
imprisonment after conviction by any court
of law in relation to any cognizable offence
previously.
An
assurance
was
also
advanced by learned counsel for the
applicants on behalf of the applicants that
they would render all requisite co-operation
and assistance in the process of law and
with the investigating agency and shall not
create any hindrance to reach to its logical
conclusion and shall not flee away from the
course of justice.

(6) Learned counsel for the applicants
has strenuously argued that the applicants
have been made target just to besmirch
their reputation and belittle him in the
public estimate by the informant. Number
of arguments were advanced by learned
counsel for the applicants to demonstrate
the falsity of the accusation made in the
FIR against the applicants by the informant.
Learned counsel for the applicants has also
relied upon the judgments in the cases of
Arnesh Kumar vs State of Bihar and
another, (2014) 8 SCC 273; Joginder
Kumar vs State of U.P. and others (1994)
4 SCC 260 and Sanaul Haque vs State of
U.P. and another, 2008 Cri. LJ 1998, to
buttress his contentions.

(7) In the case of Arnesh Kumar
(supra) Hon'ble Apex Court has opined that
the pith and core is that the police officer
before arrest must put questions to himself,
Why arrest?, Is it really required?, What
purpose it will serve? What object it will
achieve? If it is only after these questions
are addressed and one or other conditions,
as enumerated above, are satisfied, the
power of arrest needs to be exercised.
Before the arrest the police office should
have a reason to believe on the basis of
information and material that the accused
has committed the offence. Apart from this,
the police officer has to satisfy further that
the arrest is necessary for one or more
purposes envisaged in sub-clauses (a) to (e)
to Clause-1 of Section 438 Cr.P.C.
18 INDIAN LAW REPORTS ALLAHABAD SERIES

(8) In the background of said legal
proposition, it has been argued by learned
counsel for the applicant that the present
FIR was got registered by opposite party
no.2 under the aforesaid sections against
the husband (applicant no.1) and rest of the
accused persons who are his close related
family members. It is further contended by
the counsel for applicants that this F.I.R.
was lodged by the father of the victim on
2.6.2021
at
Police
Station
Kareili,
Prayagraj
only
after
receiving
a
letter/written notice of Talaq-e
 dated
28.4.2021/11.5.2021 received by Smt. Sana
Nasir w/o applicant no.1. It has been
argued by the counsel for the applicants
that the opposite party no.2 got infuriated
by this notice of husband and in retaliation
to it, the present F.I.R. was got registered
leveling an usual allegation prevailing nowa-days for alleged dowry demand and its
related harassment by the applicant no.1
and his family members. The applicant
no.1 got married with Sana Nasir on
14.9.2016. Nasir Zen, informant and father
of the lady is working at Saudi Arabia.
Initially Sana Nasir got her schooling from
Saudi Arabia and thereafter went to Canada
for her higher education. It is contended by
the learned counsel for the applicants that
after the marriage with applicant no.1 and
Sana Nasir, there were deep rooted
differences on account of their respective
attitude,
behavior,
temperament
etc
between them. This was resulted into
serious discord between them. It was quite
obvious, there was yawning differences in
their values, their family background, as it
is evident from their Whatsapp chatting,
ever low conversation between them.

First
notice
of
talaq
dated
28.4.2021 is self explanatory about the
quantum
of
differences
and
discord
between them, besides the Whatsapp
conversations. From the F.I.R. it is clear
that the informant Nasir Zen met with
S.H.O. Kareli on 22.5.2021 and the
concerned S.H.O. has rendered his good
offices to settle down the issue. Exercising
his power, the S.H.O. has summoned the
applicant no.1 and his parent to the police
station and it was decided that the applicant
would take her wife along with him. This
calling by S.H.O. to the police station
might have flared up the tempers of the
applicant against opposite party no.2. From
the text of the F.I.R., it is evident that the
relationship between the husband and wife,
which was already sour, but the things have
gone bad to worse after lodging the instant
F.I.R. Learned counsel for the applicants
has argued that there would be further
irrevocable and permanent damage in the
relationship, if the applicants are sent to
jail. Undercurrent of the F.I.R. is a
matrimonial discord between the husband
and wife. No useful purpose would be
served, if the applicants are sent to jail. It
has been further submitted by the counsel
that the present F.I.R. is a counterblast to
the alleged first notice of talaq. There is no
injuries on the record attracting Section 307
I.P.C. as alleged in the F.I.R. It has been
urged by the counsel that in order to save
the parties from the permanent and
irrevocable damage, in the interest of
justice the present anticipatory bail should
be allowed.

(9) Per contra, learned counsel for
opposite party no.2 and learned A.G.A.
vehemently opposed the anticipatory bail
application by mentioning that though the
applicants have got no criminal antecedents
but there is nothing on record to satisfy that
the police personnel are after the applicants
to arrest them. The alleged apprehension on
behalf of applicants is imaginary and
unfounded one. Learned A.G.A. has also
10 All. Kamlesh Yadav & Anr. Vs. State of U.P.
19
submitted that in view of the seriousness of
the allegations made in the F.I.R., the
applicants
are
not
entitled
for
any
relaxation from this Court.

(10) After considering the record of the
case as available before the Court, in the light of
rival submissions made at the Bar and keeping
in view the nature and gravity of the accusation,
antecedents of the applicants, their undertaking
to make themselves available to the authorities
whenever required, the Court feels satisfied that
it would be expedient to grant an order of
anticipatory bail in favour of the applicants.
Thus
instant
Anticipatory
Bail
stands
ALLOWED.

(11) Without expressing any opinion
upon ultimate merits of the case either
ways which may be adversely affect the
investigation and subsequent stage of the
case, the Court directs that in the event of
arrest of the applicants in aforesaid case
crime, they shall be released on bail on
furnishing a personal bond of Rs. 50,000/-
with two sureties each in the like amount to
the satisfaction of the Arresting Officer till
the submission of report u/s 173 (2) Cr.P.C.
by the I.O., with the conditions that :

(i) The applicants shall make
themselves available for the interrogation
by the police as and when required. The
Investigating Officer of the case would give
48 hours prior notice or telephonically
inform the concerned accused-applicant to
remain available to him for the purposes of
interrogation and the accused-applicants
are obliged to abide by such directions.

(ii) The applicants shall not
directly or indirectly make any inducement,
threats or comments to any person
acquainted with the facts of the case so as
to dissuade him from disclosing the correct
facts to the court or to the police officer.

(iii) The Investigating Officer of
the case would make all necessary
endeavour to gear up the investigation in
utmost transparent and professional way
and would try to conclude the same within
a maximum period of 90 days. During this
period the accused-applicants would not
leave the State of Uttar Pradesh without
informing the Investigating Officer of the
case and sharing his contact number.

(iv) In the event the applicants
are having their passports, they will have
to surrender the same before the concerned
SP/SSP of the District till the submission of
report u/s 173(2) Cr.P.C.

(12) In the event, the applicants
breach or attempt to breach any of the
aforesaid conditions or willfully violate
above conditions or abstains themselves
from the investigation, it would be open for
the Investigating Officer or the concerned
authority to apply before the court of
Session for cancellation of bail and the
Court of Session has every liberty and
freedom to revoke the anticipatory bail
after recording the reasons for the same.
----------

(2021)10ILR A19
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2021

BEFORE

THE HON'BLE SAMIT GOPAL, J

Criminal Misc. Bail Application No. 24591 of
2021

Kamlesh Yadav & Anr. ...Applicants
Versus
State of U.P. ...Opposite Party

Counsel for the Applicants:
Sri Aditya Narayan Singh