498A INTRODUCTION

(THE MOST CONTROVERSIAL SECTION IN THE INDIAN PENAL CODE)

What was the backdrop of 498A IPC?

Before 1983, the offence of cruelty and harassment inflicted on a married woman were dealt with by general provisions of the Indian Penal Code as there was no specific provision in the Indian Penal Code to deal with such offences. Therefore in the year 1983, the criminal law amendment was brought by the Govt. of India, and according to that, Section 498-A was brought into the statute book in the year 1983. The objects and reasons for introducing Section 498-A IPC can be gathered from the Statement of Objects and Reasons of Criminal Law (Second Amendment) Act of 1983 which reads as under:- "The increasing number of Dowry Deaths is a matter of serious concern. The extent of evil has been commented upon by the Joint Committee of the Houses constituted to examine the working of the Dowry Prohibition Act, 1961. Cases of cruelty by the husband and the relatives of the husband which culminate in suicide by, or murder of the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is, therefore proposed to amend the Indian Penal Code, Code of Criminal Procedure, and the Indian Evidence Act suitably to deal effectively not only with cases of Dowry Death but also cruelty to a married woman by their in-laws. The following are the changes that are proposed to be made:- (i) The Indian Penal Code is proposed to be amended to make cruelty to a woman by her husband or any relative of her husband punishable with imprisonment for a term which may extend to three years and also with fine. Willful conduct of such a nature by the husband or any other relative of the husband as is likely to drive the woman to commit suicide or cause grave physical or mental injury to her, and harassment of a woman by her husband or by any relative of her husband to coerce her or any of her relatives to meet any unlawful demand for the property would be punishable as cruelty, the offence will cognizable if information relating to the commission of the offence is given to the officer in charge of a Police Station by the victim of the offence or a relative of the victim of the offence or, in the absence of any such relative, by any public servant authorized in this behalf by the State Government. It is also being provided that no court shall take cognizance of the offence except upon a Police Report or complaint made by the victim of the offence or by her father, mother, brother, sister or by her father's or mother's brother or sister or with the leave of the court by any other person related to her by blood, marriage or adoption (vide Clauses 2, 5 and 6 of the Bill.) (ii) Provision is being made for an inquest by Executive Magistrates and for postmortem in all cases where a woman has, within seven years of her marriage, committed suicide or died in circumstances raising a reasonable suspicion that some other person has committed an offence. A post-mortem is also being provided for in all cases where a married woman has died within seven years of her marriage and a relative of such woman has requested on this behalf (vide Clauses 3 and 4 of the Bill) (iii)The Indian Evidence Act, 1872 is being amended to provide that where a woman has committed suicide within a period of seven years from the date of her marriage and it is shown that her husband or any relative of her husband and subjected her to cruelty, the court may presume that such suicide had been abetted by her husband or by such relative of her husband (vide Clause 7 of the Bill).

The objective of 498A IPC:-

As mentioned above a new section i.e 498 A was inserted in the Indian Penal code under chapter XX-A with an object to curb the menace of “Cruelty against a married woman” which often led to dowry death. It has been presumed a very important amendment in the Indian Panel Code to safeguard the married woman from any type of physical brutality or harassment for dowry demand. The foremost objective behind this amendment was to protect married women from any type of harassment by her husband or relatives of the husband for want of dowry or any article etc. Offence under 498A IPC is cognizable, non-compoundable, and non-bailable meaning thereby the Police is duty-bound to register an FIR against the persons involved in the offence on receiving of the complaint from an aggrieved woman or her family members. Since offence of 498a IPC is cognizable and is non-bailable, the police is empowered to arrest the person involved in the case, and the only remedy left to the person involved to approach the competent court for anticipatory bail under Section 438 Cr. P.C.

Definition of section 498A of Indian Penal Code:-

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For this section, “cruelty” means— (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

The constitutional validity of 498A IPC:-

Regarding the constitutionality of Section 498-A IPC, in Sushil Kumar Sharma v. Union of India and others (2005) 6 SCC 281: AIR 2005 SC 3100, it was held by the Supreme Court:- "Provision of S. 498A of Penal Code is not an unconstitutional and ultra virus. The mere possibility of abuse of a provision of law does not per se invalidate legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is the prevention of the dowry menace. But many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases, the acquittal of the accused does not in all cases wipe out the ignominy suffered during and before trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra virus, does not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work." The Court also observes that complaint under section 498A of the Indian Penal Code were being filed on the basis of personal vendetta. Court further observed that by misusing the provision, new legal terrorism can be unleashed.

In the Case of “Chandra Bhan Vs. State (2008) The Delhi High Court came to the conclusion that there is no iota of doubt that most of the complaints are filed in the heat of the moment over trifling fights and ego clashes. It is also a matter of common knowledge that in their tussle and ongoing hostility, the hapless children are the worst victims

 In the case of “ B.S. Joshi and others v. the State of Haryana and another (2003) 4 SCC 675: AIR 2003 SC 1386 “The Supreme Court observed that  "There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy the unlawful demands of dowry. The hyper-technical view would be counterproductive and would act against the interests of women and against the object for which this provision was added. There is every likelihood that no exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of the Indian Penal Code.

In the case of " Brij Lal v. Prem Chand and another (1989) 2 SCR 612, the Supreme Court ruled thus:- “It would not be out of place for us to refer here to the addition of Sections 113-A and 113-B to the Indian Evidence Act and Sections 498-A and 304-B to the Indian Penal Code by subsequent amendments. Section 113-A Evidence Act and 498-A Indian Penal Code have been introduced in the respective enactments by the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983), and Section 113-B of the Evidence Act and 304-B Indian Penal Code have been introduced by Act No. 43 of 1986. The degradation of society due to the pernicious system of dowry and the unconscionable demands made by greedy and unscrupulous husbands and their parents and relatives resulting in an alarming number of suicidal and dowry deaths by women has shocked the Legislative conscience to such an extent that the Legislature has deemed it necessary to provide additional provisions of law, procedural as well as substantive, to combat the evil and has consequently introduced Sections 113-A and 113-B in the Indian Evidence Act and Sections 498-A and 304-B in the Indian Penal Code. Because of Section 113-A, the Courts can presume that the commission of suicide by a woman has been abetted by her husband or relation if two factors are present viz. (1) that the woman had committed suicide within a period of seven years from her marriage, and (2) that the husband or relation had subjected her to cruelty. We are referring to these provisions only to show that the Legislature has realized the need to provide for additional provisions in the Indian Penal Code and the Indian Evidence Act to check the growing menace of dowry deaths...”

MISUSE OF SECTION 498A OF IPC: -

Since the very inception of 498a IPC, we have seen that Sec.498A IPC became a more controversial section in the IPC as 498A IPC was misusing at a very high scale. Misuse of 498a IPC was also noticed by the many High Courts and also by the Supreme Court and time and again various High Courts and Supreme Court has observed in their respective judgments about the misuse of Section 498a IPC and also recommended the Law Commission of India to bring suitable change in the law to prevent misuse of sec.498a IPC. It seems that the rise of education, financial security, modernization, independence, and radical feminism have also made Section 498A of IPC, a weapon in her hands than a shield. Because of which many helpless husbands and their relatives have become the victims in the hand of revengeful daughters-in-law. In many cases where Sec 498A was invoked, they turn out to be false cases as they turn out to be mere blackmailing attempts by the wife or her close relatives when marriages failed for some other reason. Because of which in most of the cases the Section 498A complaint is generally followed by the demand of a huge amount of money to settle the case outside the Court or under the terms of settlement which involved a hefty amount. In such a scenario, the court often observed specifically that there are misuse and exploitation under the provision of 498A IPC to such an extent that it was hitting the very foundation of marriage itself and which ultimately led to not a good sign for the welfare of the society for the public at large. The similar observation of the misuse of laws vehemently is even ascertained by the other concerned authorities, such as the police (investigating agency), NGOs, and even judges of the various Courts. Similar views were also expressed by the former Judge of the Supreme Court justice KT Thomas in his article, even the Malimath Committee report on reforms in the criminal justice system also depicted the high misuse of Sec. 498A IPC. The law commission has recommended that the offence under section 498A IPC should be made compoundable offence with the permission of the court. Justice Malimath Committee also recommended that it should be made compoundable as well as bailable. The Union Home Ministry had also asked all State Governments to be judicious in slapping Section 498A IPC in the matrimonial disputes cases as the provision may be used as weapons rather than shields by disgruntled wives. In an advisory to the States and Union Territories, the ministry has asked them to instruct their Police officers not to automatically arrest a person when a case under section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameter laid down flowing from Section 41.Cr.P.C. however, it failed to provide any data regarding how frequently the section is subject to misuse. As per the reports of the National Crime Records Bureau (NCRB) 2016 total cases were registered under section 498A IPC 110378. Out of 110378 cases, the conviction ratio was 12.2%. It means other cases either proved as false or has been withdrawn on settlements. That is why this provision has always been in the news with allegations of false complaints and a very low conviction rate. The Men’s rights activists insist that the law is not serving its purpose and being misused by women to harass their husbands and their relatives. There are many instances where the woman has filed the complaint with a mala fide intention of causing harassment to her husband and in-laws. In such cases, even though the husband and his relatives get acquitted or discharged even then, they suffer from immense mental and economic distress. The media coverage further hampers the reputation of the accused. Not only above it has also been noticed that whenever marriages failed for some other reason, the wife has filed a case of 498A IPC against the husband and his family members and also distant relative who has nothing to do with the matrimonial affairs of the parties and even they are living in different cities for decades. In such cases, most of the cases culminate through compromise in huge amounts in the form of the full and final settlement.

IMPORTANT JUDGEMENTS PASSED BY THE SUPREME COURT COMMENDING ILLEGAL ARREST:-

In the case of “ Joginder Kumar v. State of U.P and others (1994) 4 SCC 260”  Supreme Court has issued certain Guidelines to prevent illegal arrest which are as under:-

 “No arrest can be made routinely on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even to the need to effect an arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer affecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to the person to attend the Station House and not to leave the Station without permission would do.” 

Again, the Court in Joginder Kumar case (supra), while voicing its concern regarding complaints of human rights pre and after the arrest, observed thus:- “ A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties, and privileges, on the one hand, and individual duties, obligations, and responsibilities on the other; of weighing and balancing the rights, liberties, and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first—the criminal or society, the law violator or the law abider”

 In the case of D.K. Basu v. the State of W.B.(1997) 1 SCC 416, after referring to the authorities in Joginder Kumar (supra), Nilabati Behera v. State of Orissa and others(1993) 2 SCC 746  and State of M.P. v. Shyamsunder Trivedi and others (1995) 4 SCC 262, the Court laid down certain guidelines which reproduce the same:- “(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up shall be entitled to have one friend or relative or other person known to him or having an interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest, and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest, and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to a medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by the Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest, and at the police control room it should be displayed on a conspicuous notice board.”

 In the case of 

Lalita Kumari v. Government of Uttar Pradesh and others (2014) 2 SCC 127, the Constitution Bench, referring to various provisions of Cr. P.C, adverted to the issue of conducting a preliminary inquiry. Eventually, the Court opined that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offense and, thereafter, proceeded to state thus:- “ As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offenses (c) Medical negligence cases (d) Corruption cases (e) Cases where there is an abnormal delay in initiating criminal prosecution, for example, over 3 months‟ delay in reporting the matter without satisfactorily explaining the reasons for the delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.”

GUIDELINES ISSUED BY THE SUPREME COURT IN THE CASE OF “ARNESH KUMAR V. STATE OF BIHAR AND ANOTHER (2014) 8 SCC 273” TO REGULATE ILLEGAL ARREST IN THE CASES RELATED TO 498A IPC:-

The Supreme Court in the case of Arnesh Kumar v. State of Bihar and Anr. has observed that the offence under section 498A IPC is cognizable and non-bailable has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. The Court has taken note of the statistics under “Crime in India 2012 Statistics” published by the National Crime Records Bureau, Ministry of Home Affairs which shows arrest of 1,97,762 persons all over India during the year 2012 for the offence under Section 498-A. Showing concern, the Court held that arrest brings humiliation, curtails freedom, and casts scars forever and the police had not learned its lesson which is implicit and embodied in the Criminal Procedure Code. Commenting on the police, the Court said:- “It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by the courts but has not yielded the desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool for the police officers who lack sensitivity or act with oblique motive.” 

The Court, thereafter, has distinguished between the power to arrest and justification for the exercise of it and analyzed Section 41 CrPC.

Section 41 stipulates when police may arrest without a warrant. The said provision reads as follows:- “41. When police may arrest without warrant.—(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person— (a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-- (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is necessary-- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or 19 (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing. Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with a death sentence and the police officer has reason to believe on the basis of the information that such person has committed the said offence. (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonable suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or a reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.”. Scrutinizing the said provision, the Court held as under:-

 “7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before the arrest, in such cases, has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear, or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first, the police officers should have reason to believe based on information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.” The learned Judges, thereafter, referred to Section 41-A CrPC which has been inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009). The said provision is to the following effect:-

 “41-A. Notice of appearance before a police officer.—(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer believes that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.” Explaining the said provision, it has been ruled:- “The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless, for reasons to be recorded, the police officer believes that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to have complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.” The Court further went on to say:- “10. We are of the opinion that if the provisions of Section 41 CrPC which authorizes the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasize that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 CrPC for effecting arrest be discouraged and discontinued.” The directions issued in the said case are worthy to note:-

“ Our Endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate does not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC; 11.2. All police officers are provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii); 11.3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest while forwarding/producing the accused before the Magistrate for further detention; 11.4. The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; 11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction. 11.8. Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”

GUIDELINES ISSUED BY THE SUPREME COURT IN THE CASE OF “RAJESH SHARMA AND ORS V. STATE OF U.P. AND ANR. AIR 2017 SC 3869: 2017 (8) SCALE 313”:

The Supreme Court in the case of Rajesh Sharma (supra) issued the following guidelines to prevent misuse of sec. 498A IPC:-

 i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/ wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

 (d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

 (e) Report of such committee is given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of the complaint.

(f) The committee may give its brief report about the factual aspects and its opinion on the matter.

(g) Till the report of the committee is received, no arrest should normally be effected.

 (h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

 (j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officers may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today; iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord. iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, the requirement of further arrest/ custody and interest of justice must be carefully weighed; v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine; vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted, and vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit the appearance by video conferencing without adversely affecting the progress of the trial. viii) These directions will not apply to the offences involving tangible physical injuries or death.

DIRECTION OF THE SUPREME COURT IN THE CASE OF “SOCIAL ACTION FORUM FOR MANAV ADHIKAR AND ANOTHER VS UNION OF INDIA MINISTRY OF LAW AND JUSTICE AND OTHERS W.P(C) NO.73 OF 2015”:-

After the Guidelines issued by the Supreme Court in the case of “Rajesh Sharma and Ors V. State of U.P. and Anr. AIR 2017 SC 3869 ” a writ petition has been filed by Social Action Forum for Manav Adhikar and another Vs Union of India Ministry of Law and Justice and others W.P(C) NO.73 of 2015” and finally the Supreme Court passed the judgment thereby certain directions issued in the case of Rajesh Sharma and Ors V. State of U.P. and Anr. AIR 2017 SC 3869: 2017 (8) SCALE 313” has been overruled. The operating part of the judgments is as under:-

“In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra), and Arnesh Kumar (supra). It will also be appropriate to direct the Director-General of Police of each State to ensure that investigating officers who are in charge of the investigation of cases of offences under Section 498-A IPC should be imparted rigorous training concerning the principles stated by this Court relating to arrest. Given the aforesaid premises, the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the direction given hereinabove. . Direction No. 19(iii) is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh (supra), shall dispose of the same. As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall be governed by what we have stated in paragraph 35. 35 42. With the aforesaid modifications in the directions issued in Rajesh Sharma (supra), the writ petitions and criminal appeal stand disposed of.

Now we can say that with the kind interventions of the Hon’ble Supreme Court, the misuse of section 498A IPC has been stopped to some extent and also prohibited illegal arrest in the cases related to 498A IPC and false Dowry demand case.

*The writer is a practicing Advocate of the Supreme Court of India. The views articulated in this article are based on the judgments passed by the Courts. The article is for general information and not for legal advice. Ph.No.7678593376 E-Mail: mktsupremecourt@gmail.com