Karnataka High Court
Mohammed Haneef S/O Goususab Samshi vs The State Of Karnataka on 7 December, 2022
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 103432 OF 2022
BETWEEN:
1. MOHAMMED HANEEF S/O. GOUSUSAB SAMSHI
AGE. 30 YEARS, OCC. NIL,
R/O. KARADAGI VILLAGE,
TQ. SAVANUR, DIST. HAVERI,
PIN-581126.
2. GOUSUSAB S/O. AJEEJSAB SAMSHI
AGE. 65 YEARS, OCC. NIL,
R/O. KARADAGI VILLAGE,
TQ SAVANUR, DIST. HAVERI,
PIN-581126.
3. DAVALSAB S/O. GOUSUSAB SAMSHI
AGE. 32 YEARS, OCC. NIL,
R/O. KARADAGI VILLGE,
TQ. SAVANUR, DIST. HAVERI,
PIN-581126.
4. AMEERASAB @ AMMERAMJA
S/O. GOUSUSAB SAMSHI
AGE. 28 YEARS, OCC. NIL,
R/O. KARADAGI VILLGE,
TQ. SAVANUR, DIST. HAVERI,
PIN-581126.
5. SADIQ @ MOHAMMED SADIQ
S/O. GOUSUSAB SAMSHI
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CRL.P No. 103432 of 2022
AGE. 26 YEARS, OCC. NIL,
R/O. KARADAGI VILLGE,
TQ. SAVANUR, DIST. HAVERI,
PIN-581126.
6. MOULALI S/O. GOUSUSAB SAMSHI,
AGE. 25 YEARS, OCC. NIL,
R/O. KARADAGI VILLGE,
TQ. SAVANUR, DIST. HAVERI,
PIN-581126.
...PETITIONERS
(BY SRI. SADIK KANVI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY SAVANUR P.S., DIST. HAVERI,
REPRESENTED BY THE SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD-580011.
2. BIBIJAN W/O. MOHAMADHANIF SAMSHI
AGE. 30 YEARS,
OCC. TAILOR, BEEDI WORKS,
R/O. KARADAGI VILLGE,
TQ. SAVANUR, DIST. HAVERI,
PIN-581126.
NOW RESIDING AT KHADAR BAGH ONI,
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CRL.P No. 103432 of 2022
SAVANUR, TQ. SAVANUR,
DIST. HAVERI-581118.
...RESPONDENTS
(BY SRI. PRASHANTH V. MOGALI, HCGP FOR R1;
R2 - PRESENT PHYSICALLY)
THIS CRIMINAL PETITION IS FILED U/S 439 (1) (b) OF
CR.P.C., SEEKING TO RELAX OR MODIFY THE CONDITION NO.8
I.E., THE PETITIONERS SHALL APPEAR BEFORE THE
CONCERNED MAGISTRATE COURT WITHIN 15 DAYS FROM
DATE OF THIS ORDER WITHOUT FAIL. FURTHER THE
MAGISTRATE SHALL HAVE TO COMPLY SECTION 7 OF THE
MUSLIM WOMEN (PROTECTION OF RIGHT ON MARRIAGE) ACT,
2019 BEFORE GRANTING BAIL. NOT WITH STANDING THIS
ORDER OF ANTICIPATORY BAIL, THE I.O, IS AT LIBERTY TO
TAKE THE PETITIONERS INTO CUSTODY WITH PRIOR
PERMISSION OF THE CONCERNED COURT, IF THE
PETITIONERS ARE ABSOLUTELY REQUIRED FOR FURTHER
CUSTODIAL INTERROGATION AND CONSEQUENTIAL RECOVERY
IF ANY, IN CRL.MISC.NO.160/2022 DATED 23.03.2022 BY
IMPOSED BY THE 1 ST ADDITIONAL DISTRICT AND SESSIONS
JUDGE, HAVERI.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS TH IS DAY, THE COURT MADE THE
FOLLOWING:
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CRL.P No. 103432 of 2022
ORDER
Accused Nos.1 to 6 have filed this petition under Section 439(1)(b) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking relaxation of condition No.8 and un-numbered condition imposed in order dated 23.03.2022 passed in Criminal Miscellaneous No.160/2022 by learned I Additional District and Sessions Judge, Haveri.
2. Heard learned counsel appearing for the petitioners/accused Nos.1 to 6 and learned High Court Government Pleader for respondent No.1- State. Respondent No.2 was present on the previous date and she prays to reject the petition.
3. A case came to be registered against the petitioners in Savanur Police Station in Crime No.70/2021 for the offences punishable under -5- CRL.P No. 103432 of 2022 Sections 143, 147, 323, 114, 498A, 504 read with Section 149 of The Indian Penal Code (hereinafter referred to as 'IPC', for brevity) and Section 4 of The Muslim Women (Protection of Rights on Marriage) Act, 2019 (hereinafter referred to as 'the Act of 2019', for brevity). The petitioners apprehending their arrest filed Criminal Miscellaneous No.160/2022 seeking anticipatory bail and the same came to be allowed by order dated 23.03.2022 by learned I Additional District and Sessions Judge, Haveri, by imposing the following conditions:
"1. The petitioners shall not hamper the further investigation of the case and tamper the prosecution witnesses in any manner.
2. The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the -6- CRL.P No. 103432 of 2022 facts of the case so as to dissuade him/her from disclosing such facts to the Court.
3. The petitioners shall make themselves available for interrogation by the I.O. as and when required till the final report is filed. Further they shall assist the I.O. in further investigation of the case.
4. The petitioners shall appear before the I.O. once in a week commencing from 31 s t March 2022 between 10.00 a.m. to 5.00 p.m. till the completion of investigation or filing of charge sheet whichever is earlier.
5. The petitioners shall surrender before the I.O. within 31 s t March 2022 days from the date of order without fail.-7- CRL.P No. 103432 of 2022
6. The petitioners shall furnish their permanent and present residential address proof before the I.O.
7. The petitioners shall not indulge in any criminal activities.
8. The petitioners shall appear before the concerned Magistrate Court within 15 days from the date of this order without fail. Further the Magistrate shall have to comply Section 7 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 before granting bail.
Not withstanding this order of anticipatory bail, the I.O. is at liberty to take the petitioners into custody with prior permission of the concerned court, if the petitioners are absolutely required for further custodial interrogation and consequential recovery if any."-8- CRL.P No. 103432 of 2022
4. The petitioners filed Criminal Miscellaneous No.587/2022 seeking relaxation of condition No.8 and un-numbered condition imposed in order dated 23.03.2022 before the learned I Additional District and Sessions Judge, Haveri and the same came to be rejected by order dated 19.08.2022. Therefore, the petitioners have filed the present petition seeking relaxation of the above said conditions.
5. The accusation against the petitioners is that petitioner No.1 married with the complainant, after five years petitioner/accused No.1 being her husband, accused No.2 being her father-in-law, accused No.3 to 6 being her brother-in-laws started torturing her alleging that she is having illicit relationship with one Askarali and gave physical and mental harassment. When she was residing along with her husband separately, on -9- CRL.P No. 103432 of 2022 01.08.2020 at about 11.30 p.m. her husband along with her in-laws forcibly brought Askarali to the house where the complainant and her husband were living and assaulted him. When she questioned her husband and in-laws they assaulted her and locked her and said Askarali in the house and called Jamat leaders. The Jamat leaders enquired them and advised not to go for Talaq and solve the matter. But accused Nos.2 to 5 forcibly given Talaq from accused No.1 and got signature of the complainant on Talaq paper and performed marriage of the complainant with Askarali and ousted them from the house.
6. Learned counsel for the petitioner would contend that the offence punishable under Section 4 of the Act of 2019 does not attract against the petitioner Nos.2 to 6 and at the most it is attracted against petitioner No.1 who is husband of
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CRL.P No. 103432 of 2022 the complainant. It is his further submission that even Section 4 of the Act of 2019 is not attracted against her husband since the Talaq given by petitioner No.1 is not Talaq which is defined under Section 2(c) of the Act of 2019 which is void and illegal as per the Section 3 of the Act of 2019. The said provisions read as under:
"2 definition: XXXX
(a).XXXX
(b).XXXX
(c). "talaq" means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.
3. Talaq to be void and illegal - Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.
4. Punishment for pronouncing talaq -
Any Muslim husband who pronounces talaq referred to in Section 3 upon his wife shall
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CRL.P No. 103432 of 2022 be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.
7.Offence to be cognizable, compoundable, etc. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974),
(a) an offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage;
(b) an offence punishable under this Act shall be compoundable, at the instance of the married Muslim woma n upon whom talaq is pronounced with the permission of the Magistrate, o n such terms and conditions as he may determine;
(c) no person accused of an offence punishable under this Act shall be
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CRL.P No. 103432 of 2022 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."
7. As per the averments of the complaint it is alleged that the accused persons forcibly took the signature of the complainant on Talaq papers and performed her marriage with Askarali and sent them out of the house. Whether the said allegation attracts Talaq as defined under Section 2(c), is a matter of trial.
8. Earlier on the complaint filed by one Bashasab (father of Askarali), a case came to be registered in Crime No.175/2020 against the petitioners and the charge sheet came to be filed in the said crime for the offences punishable under Sections 143, 147, 323, 302, 120B read with
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CRL.P No. 103432 of 2022 Section 149 of IPC and Section 4 of the Act of 2019. The said case is pending for trial on the file of the Principal District and Sessions Court, Haveri in S.C. No.57/2021 and charges have been framed against the petitioners. In the said S.C. No.57/2021 the petitioners who are accused Nos.1 to 6 are on bail. The complainant is cited as CW-6 in the said charge sheet filed in Crime No.175/2020. Subsequently, she filed the complaint before police station and they gave an endorsement dated 15.03.2021 intimating her that a case is already registered against the said petitioners in Crime No.175/2020 which includes the offence punishable under Section 4 of the Act of 2019. Thereafter, the said Bibijan has filed the complaint which came to be registered in Crime No.70/2021 against these petitioners for the offences punishable under Sections 143, 147, 114, 323, 498A, 504 read with Section 149 of IPC and
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CRL.P No. 103432 of 2022 Section 4 of the Act of 2019. The petitioners are already facing trial for the offence punishable under Section 4 of the Act of 2019 in S.C. No.57/2021. In the present case also i.e. in Crime No.70/2021 on the complaint filed by Bibijan, after the investigation charge sheet has been filed against these petitioners for the offences punishable under Sections 143, 147, 114, 323, 498A, 504 read with Section 149 of IPC and Section 4 of the Act of 2019. The petitioners are already facing trial for the said offence punishable under Section 4 of the Act of 2019 in S.C. No.57/2021. In view of the petitioners facing trial for the offence punishable under Section 4 of the Act of 2019 in S.C. No.57/2021, compliance of Section 7 of the Act of 2019 does not arise. Even Section 7 of the Act of 2019 does not specifically states whether its compliance is necessary in respect of grant of anticipatory bail. Therefore,
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CRL.P No. 103432 of 2022 the condition No.8 imposed in order dated 23.03.2022 passed in Criminal Miscellaneous No.160/2022 is not at all necessary. In the said order dated 23.03.2022 there is another un- numbered condition giving liberty to the Investigating Officer to take the petitioners into custody with prior permission of the concern Court for further custodial interrogation and consequential enquiry if any, the said condition imposed will limit the life of anticipatory bail. Without that condition also the Investigating Officer is at liberty to make any investigation by securing the presence of the petitioners, without taking them into custody. Therefore, the said condition is also not necessary to be imposed.
9. In view of the above, the petition deserves to be allowed. Hence, the following:
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ORDER The petition filed under Section 439(1)(b) of Cr.P.C. is allowed.
The condition No.8 and un-numbered condition imposed in order dated 23.03.2022 passed in Criminal Miscellaneous No.160/2022 by learned I Additional District and Sessions Judge, Haveri, are relaxed.
The petitioner shall appear before the Jurisdictional Magistrate within fifteen days from this day.
Sd/-
JUDGE SMM