Sunday, February 15, 2015

Before arrest sec.41 of Cr.P.C. Notice is mandatory in sec.498-A IPC Dowry cases.

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 (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 death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;”’
*[sub-clauses (a) and (b) substituted by Code of Criminal Procedure Amendment act, 2008]
**[Proviso to sub-clause (b) inserted by Code of Criminal Procedure Amendment Act, 2010]
*[(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 reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.” }
*[sub-clause (2) substituted by Code of Criminal Procedure Amendment act, 2008]

*[41A. Notice of appearance before 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 is of the opinion 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.”
*[Clause 41A Inserted by Code of Criminal Procedure Amendment act, 2008 and sub-clause (1) further modified by Code of Criminal Procedure Amendment act, 2010]
**[sub-clause (4) substituted by Code of Criminal Procedure Amendment act, 2010]

41B. Procedure of arrest and duties of officer making arrest Procedure of arrest and duties of officer making arrest. – Every police officer while making an arrest shall-
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;
(b) prepare a memorandum of arrest which shall be-
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.
*[Inserted by Code of Criminal Procedure Amendment act, 2008]

Thursday, July 3, 2014

No Arrest in sec.498-A IPC without permission of Magistrate-Supreme Court of India.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)
ARNESH KUMAR ….. APPELLANT
VERSUS
STATE OF BIHAR & ANR. …. RESPONDENTS
J U D G M E N T
Chandramauli Kr. Prasad
The petitioner apprehends his arrest in a case under Section 498-A of
the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of
the Dowry Prohibition Act, 1961. The maximum sentence provided under
Section 498-A IPC is imprisonment for a term which may extend to three
years and fine whereas the maximum sentence provided under Section 4 of the
Dowry Prohibition Act is two years and with fine.
Petitioner happens to be the husband of respondent no.2 Sweta Kiran.
The marriage between them was solemnized on 1st July, 2007. His attempt to
secure anticipatory bail has failed and hence he has knocked the door of
this Court by way of this Special Leave Petition.

Leave granted.

In sum and substance, allegation levelled by the wife against the
appellant is that demand of Rupees eight lacs, a maruti car, an
air-conditioner, television set etc. was made by her mother-in-law and
father-in-law and when this fact was brought to the appellant’s notice, he
supported his mother and threatened to marry another woman. It has been
alleged that she was driven out of the matrimonial home due to non-
fulfilment of the demand of dowry.

Denying these allegations, the appellant preferred an application for
anticipatory bail which was earlier rejected by the learned Sessions Judge
and thereafter by the High Court.

There is phenomenal increase in matrimonial disputes in recent years.
The institution of marriage is greatly revered in this country. Section
498-A of the IPC was introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and his relatives. The
fact that Section 498-A is a cognizable and non-bailable offence 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. In a
quite number of cases, bed-ridden grand-fathers and grand-mothers of the
husbands, their sisters living abroad for decades are arrested. “Crime in
India 2012 Statistics” published by National Crime Records Bureau,
Ministry of Home Affairs shows arrest of 1,97,762 persons all over India
during the year 2012 for offence under Section 498-A of the IPC, 9.4% more
than the year 2011. Nearly a quarter of those arrested under this
provision in 2012 were women i.e. 47,951 which depicts that mothers and
sisters of the husbands were liberally included in their arrest net. Its
share is 6% out of the total persons arrested under the crimes committed
under Indian Penal Code. It accounts for 4.5% of total crimes committed
under different sections of penal code, more than any other crimes
excepting theft and hurt. The rate of charge-sheeting in cases under
Section 498A, IPC is as high as 93.6%, while the conviction rate is only
15%, which is lowest across all heads. As many as 3,72,706 cases are
pending trial of which on current estimate, nearly 3,17,000 are likely to
result in acquittal.

Arrest brings humiliation, curtails freedom and cast scars forever.
Law makers know it so also the police. There is a battle between the law
makers and the police and it seems that police has not learnt its lesson;
the lesson implicit and embodied in the Cr.PC. 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 Courts but has not yielded
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 to the police officers who lack sensitivity or act
with oblique motive.
Law Commissions, Police Commissions and this Court in a large number
of judgments emphasized the need to maintain a balance between individual
liberty and societal order while exercising the power of arrest. Police
officers make arrest as they believe that they possess the power to do so.
As the arrest curtails freedom, brings humiliation and casts scars forever,
we feel differently. We believe that no arrest should be made only
because the offence is non-bailable and cognizable and therefore, lawful
for the police officers to do so. The existence of the power to arrest is
one thing, the justification for the exercise of it is quite another. Apart
from power to arrest, the police officers must be able to justify the
reasons thereof. No arrest can be made in a routine manner on a mere
allegation of commission of an offence made against a person. It would be
prudent and wise for a police officer that no arrest is made without a
reasonable satisfaction reached after some investigation as to the
genuineness of the allegation. Despite this legal position, the Legislature
did not find any improvement. Numbers of arrest have not decreased.
Ultimately, the Parliament had to intervene and on the recommendation of
the 177th Report of the Law Commission submitted in the year 2001, Section
41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present
form came to be enacted. It is interesting to note that such a
recommendation was made by the Law Commission in its 152nd and 154th Report
submitted as back in the year 1994. The value of the proportionality
permeates the amendment relating to arrest. As the offence with which we
are concerned in the present appeal, provides for a maximum punishment of
imprisonment which may extend to seven years and fine, Section 41(1)(b),
Cr.PC which is relevant for the purpose 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)x x x x x x
(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) x x x x x
(ii) the police officer is satisfied that such arrest is necessary –
to prevent such person from committing any further offence; or
for proper investigation of the offence; or
to prevent such person 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 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
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.

X x x x x x

From a plain reading of the aforesaid provision, it is evident that a
person accused of 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 its satisfaction
that such person had committed the offence punishable as aforesaid. Police
officer before 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 so as 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. Law mandates the police officer to state the facts and record the
reasons in writing which led him to come to a conclusion covered by any of
the provisions aforesaid, while making such arrest. Law further requires
the police officers to record the reasons in writing for not making the
arrest. In pith and core, the police office 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 on the basis
of 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 of Cr.PC.

An accused arrested without warrant by the police has the
constitutional right under Article 22(2) of the Constitution of India and
Section 57, Cr.PC to be produced before the Magistrate without unnecessary
delay and in no circumstances beyond 24 hours excluding the time necessary
for the journey. During the course of investigation of a case, an accused
can be kept in detention beyond a period of 24 hours only when it is
authorised by the Magistrate in exercise of power under Section 167 Cr.PC.
The power to authorise detention is a very solemn function. It affects the
liberty and freedom of citizens and needs to be exercised with great care
and caution. Our experience tells us that it is not exercised with the
seriousness it deserves. In many of the cases, detention is authorised in a
routine, casual and cavalier manner. Before a Magistrate authorises
detention under Section 167, Cr.PC, he has to be first satisfied that the
arrest made is legal and in accordance with law and all the constitutional
rights of the person arrested is satisfied. If the arrest effected by the
police officer does not satisfy the requirements of Section 41 of the Code,
Magistrate is duty bound not to authorise his further detention and release
the accused. In other words, when an accused is produced before the
Magistrate, the police officer effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its conclusions for arrest and
the Magistrate in turn is to be satisfied that condition precedent for
arrest under Section 41 Cr.PC has been satisfied and it is only thereafter
that he will authorise the detention of an accused. The Magistrate before
authorising detention will record its own satisfaction, may be in brief but
the said satisfaction must reflect from its order. It shall never be
based upon the ipse dixit of the police officer, for example, in case the
police officer considers the arrest necessary to prevent such person from
committing any further offence or for proper investigation of the case or
for preventing an accused from tampering with evidence or making inducement
etc., the police officer shall furnish to the Magistrate the facts, the
reasons and materials on the basis of which the police officer had reached
its conclusion. Those shall be perused by the Magistrate while authorising
the detention and only after recording its satisfaction in writing that the
Magistrate will authorise the detention of the accused. In fine, when a
suspect is arrested and produced before a Magistrate for authorising
detention, the Magistrate has to address the question whether specific
reasons have been recorded for arrest and if so, prima facie those reasons
are relevant and secondly a reasonable conclusion could at all be reached
by the police officer that one or the other conditions stated above are
attracted. To this limited extent the Magistrate will make judicial
scrutiny.

Another provision i.e. Section 41A Cr.PC aimed to avoid
unnecessary arrest or threat of arrest looming large on accused requires to
be vitalised. Section 41A as inserted by Section 6 of the Code of
Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant
in the context reads as follows:
“41A. Notice of appearance before 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 is of the opinion
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.”

Aforesaid provision makes it clear that in all cases where the
arrest of a person is not required under Section 41(1), Cr.PC, 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 office is of the opinion that the arrest
is necessary. At this stage also, the condition precedent for arrest as
envisaged under Section 41 Cr.PC has to be complied and shall be subject to
the same scrutiny by the Magistrate as aforesaid.
We are of the opinion that if the provisions of Section 41,
Cr.PC which authorises 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 emphasise
that the practice of mechanically reproducing in the case diary all or most
of the reasons contained in Section 41 Cr.PC for effecting arrest be
discouraged and discontinued.
Our endeavour in this judgment is to ensure that police officers do not
arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed above,
we give the following direction:
All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPC is
registered but to satisfy themselves about the necessity for arrest under
the parameters laid down above flowing from Section 41, Cr.PC;
All police officers be provided with a check list containing specified sub-
clauses under Section 41(1)(b)(ii);
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;
The Magistrate while authorising 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 authorise detention;
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;
Notice of appearance in terms of Section 41A of Cr.PC 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;
Failure to comply with the directions aforesaid shall apart from rendering
the police officers concerned liable for departmental action, they shall
also be liable to be punished for contempt of court to be instituted before
High Court having territorial jurisdiction.
Authorising detention without recording reasons as aforesaid by the
judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the
cases under Section 498-A of the I.P.C. or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such cases where offence is
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.

We direct that a copy of this judgment be forwarded to the Chief
Secretaries as also the Director Generals of Police of all the State
Governments and the Union Territories and the Registrar General of all the
High Courts for onward transmission and ensuring its compliance.

By order dated 31st of October, 2013, this Court had granted
provisional bail to the appellant on certain conditions. We make this order
absolute.

In the result, we allow this appeal, making our aforesaid order dated 31st
October, 2013 absolute; with the directions aforesaid.

………………………………………………………………J
(CHANDRAMAULI KR. PRASAD)

………………………………………………………………J
(PINAKI CHANDRA GHOSE)

Sunday, November 18, 2012

Family Members of Husband should not be Implicated.



Family members of a man should not be implicated in a dowry Cases




IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1674 OF 2012
(Arising out of SLP (Crl.) No. 10547/2010)
Geeta Mehrotra & Anr. ..Appellants
Versus
State of U.P. & Anr. . Respondents
J U D G M E N T
GYAN SUDHA MISRA, J.
1. This appeal by special leave in which we granted leave has been filed by the appellants against the order dated 6.9.2010 passed by the High Court of Judicature at Allahabad in Crl. Miscellaneous Application No.22714/2007 whereby the High Court had been pleased to dispose of the application moved by the appellants under Section 482 Cr.P.C. for quashing the order of the Magistrate taking cognizance against the appellants under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act with an observation that the question of territorial jurisdiction cannot be properly decided by the High Court under Section 482 Cr.P.C. for want of adequate facts. It was, therefore, left open to the appellants to move the trial court for dropping the proceedings on the ground of lack of territorial jurisdiction. The High Court however granted interim protection to the appellants by directing the authorities not to issue coercive process against the appellants until disposal of the application filed by the appellants with a further direction to the trial court to dispose of the application if moved by the appellants, within a period of two months from the date of moving the application. The application under Section 482 Cr.P.C. was thus disposed of by the High Court.
2. The appellants in spite of the liberty granted to them to move the trial court, have filed this appeal for quashing the proceedings which had been initiated on the basis of a case lodged by the respondent No.2 Smt. Shipra Mehrotra (earlier known as Shipra Seth) against her husband, father-in-law, mother-in-law, brother-in-law and sister-in-law. This appeal has been preferred by the sister-in- law, who is appellant No.1 and brother-in-law of the complainant, who is appellant No.2.
3. The case emerges out of the first information report lodged by respondent No.2 Smt. Shipra Mehrotra under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act bearing F.I.R.No. 52/2004. The F.I.R. was registered at Mahila Thana Daraganj, Allahabad wherein the complainant alleged that she was married to Shyamji Mehrotra s/o Balbir Saran who was living at Eros Garden, Charmswood Village, Faridabad, Suraj Kund Road at Faridabad Haryana as per the Hindu marriage rites and customs. Prior to marriage the complainant and her family members were told by Shyamji Mehrotra and his elder brother Ramji Mehrotra who is appellant No.2 herein and their mother Smt. Kamla Mehrotra and her sister Geeta Mehrotra who is appellant No.1 herein that Shyamji is employed as a Team Leader in a top I.T. Company in Chennai and is getting salary of Rs.45,000/- per month. After negotiation between the parents of the complainant and the accused parties, the marriage of the complainant Shipra Seth (later Shipra Mehrotra) and Shyamji Mehrotra was performed after which the respondent-complainant left for the house of her in- laws.
4. It was stated that the atmosphere in the house was peaceful for sometime but soon after the wedding, when all the relatives left, the maid who cooked meals was first of all paid-off by the aforesaid four persons who then told the complainant that from now onwards, the complainant will have to prepare food for the family. In addition, the above mentioned people started taunting and scolding her on trivial issues. The complainant also came to know that Shyamji was not employed anywhere and always stayed in the house. Shyamji gradually took away all the money which the complainant had with her and then told her that her father had not given dowry properly, therefore, she should get Rupees five lakhs from her father in order to enable him to start business, because he was not getting any job. When the complainant clearly declined and stated that she will not ask her parents for money, Shyamji, on instigation of other accused-family members, started beating her occasionally. To escape every day torture and financial status of the family, the complainant took up a job in a Call Centre at Convergys on 17.2.2003 where the complainant had to do night shifts due to which she used to come back home at around 3 a.m. in the morning. Just on her return from work, the household people started playing bhajan cassettes after which she had to getup at 7’o clock in the morning to prepare and serve food to all the members in the family. Often on falling asleep in the morning, Shyamji, Kamla Devi and Geeta Mehrotra tortured the complainant every day mentally and physically. Ramji Mehrotra often provoked the other three family members to torture and often used to make the complainant feel sad by making inappropriate statements about the complainant and her parents. Her husband Shyamji also took away the salary from the complainant.
5. After persistent efforts, Shyamji finally got a job in Chennai and he went to Chennai for the job in May, 2003. But, it is alleged that there was no change in his behaviour even after going to Chennai. The complainant often called him on phone to talk to him but he always did irrelevant conversation. He never spoke properly with the complainant whenever he visited home and often used to hurl filthy abuses. The complainant states that she often wept and tolerated the tortures of the accused persons for a long time but did not complain to her family members, as that would have made them feel sad. At last, when the complainant realized that even her life was in danger, she was compelled to tell everything to her father on phone who was very upset on hearing her woes. On 15.7.2003 complainant heard some conversation of her mother-in-law and sister-in-law from which it appeared to her that they want to kill the complainant in the night only. Thereupon the complainant apprised her father of the situation on phone to which her father replied that he will call back her father-in-law and she should go with him immediately and he will come in the morning. The father-in-law Satish Dhawan and his wife who were living in NOIDA thereafter came in the night and somehow took the complainant to their home who also came to know of everything. The complainant’s father and brother later went to her matrimonial home on 16.7.2003. On seeing her father and brother, Kamla Mehrotra and Geeta Mehrotra started speaking loudly and started saying that Shyamji would be coming by the evening and so he should come in the evening for talking to them. Her father and brother then went away from there. That very day, her husband Shyamji and brother-in-law Ramji also reached home. On reaching there, Shyamji abused her on phone and told her to send her father.
6. When father and brother of the complainant went home in the evening, they were also insulted by all the four and video camera and tape were played and in the end they were told that they should leave from here. Insulted, they came back from there and then came back to Allahabad with the complainant. For many days the complainant and her family members hoped that the situation would improve if the matter was resolved. Many times other people tried to persuade the in – laws but to no avail. Her brother went to their house to talk to her in – laws but it came to his knowledge that the in – laws had changed their house. After much effort, they came to know that the father-in- law and mother-in-law started living at B-39, Brahma cooperative group housing society, block 7, sector-7, Dwarka, Delhi. On 19.09.04 evening, her father talked to Kamla Mehrotra and Geeta Mehrotra regarding the complainant using bad words and it was said that if her daughter came there she will be kicked out. After some time Shyamji rang up at complainant’s home but on hearing the complainant’s voice, he told her abusively that now she should not come his way and she should tell her father not to phone him in future. At approximately 10:30 pm in the night Ramji’s phone came to the complainant’s home. He used bad words while talking to her father and in the end said that he had got papers prepared in his defence and he may do whatever he could but if he could afford to give Rs.10 lakhs then it should be conveyed after which he will reconsider the matter. If the girl was sent to his place without money, then even her dead body will not be found.
7. On hearing these talks of the accused, the complainant believed that her in-laws will not let the complainant enter their home without taking ten lakhs and if the complainant went there on her own, she will not be safe. Hence, she lodged the report wherein she prayed that the SHO Daraganj should be ordered to do the needful after registering the case against the accused Shyam Mehrotra, Ramji Mehrotra, Kamla Mehrotra and Geeta Mehrotra. Thus, in substance, the complainant related the bickering at her matrimonial home which made her life miserable in several ways and compelled her to leave her in- law’s place in order to live with her father where she lodged a police case as stated hereinbefore.
8. On the basis of the complaint, the investigating authorities at P.S. Daraganj, Allahabad started investigation of the case and thereafter the police submitted chargesheet against the appellants and other family members of the complainant’s husband.
9. Hence, the appellants who are sister and brother of the complainant’s husband filed petition under Section 482 Cr.P.C. for quashing of the chargesheet and the entire proceedings pending in the court of learned Judicial Magistrate, Court No.IV, Allahabad, inter- alia, on the ground that FIR has been lodged with mala fide intentions to harass the appellants and that no case was made out against the appellants as well as other family members. But the principal ground of challenge to the FIR was that the incident although was alleged to have taken place at Faridabad and the investigation should have been done there only, the complainant with mala fide intention in connivance with the father of the complainant, got the investigating officer to record the statements by visiting Ghaziabad which was beyond his territorial jurisdiction and cannot be construed as legal and proper investigation. It was also alleged that the father of the complainant got the arrest warrant issued through George Town Police Station, Allahabad, in spite of the cause of action having arisen at Allahabad.
10. This appeal has been preferred by Kumari Geeta Mehrotra i.e. the sister of the complainant’s husband and Ramji Mehrotra i.e. the elder brother of the complainant’s husband assailing the order of the High Court and it was submitted that the Hon’ble High Court ought to have appreciated that the complainant who had already obtained an ex-parte decree of divorce, is pursuing the present case through her father with the sole purpose to unnecessarily harass the appellants to extract money from them as all efforts of mediation had failed.
11. However, the grounds of challenge before this Court to the order of the High Court, inter alia is that the High Court had failed to appreciate that the investigation had been done by the authority without following due process of law which also lacked territorial jurisdiction. The relevant documents/parcha diary for deciding the territorial jurisdiction had been overlooked as the FIR has been lodged at Allahabad although the cause of action of the entire incident is alleged to have taken place at Faridabad (Haryana). It was, therefore, submitted that the investigating authorities of the Allahabad have traversed beyond the territorial limits which is clearly an abuse of the process of law and the High Court has failed to exercise its inherent powers under Section 482 Cr.P.C. in the facts and circumstances of this case and allowed the proceedings to go on before the trial court although it had no jurisdiction to adjudicate the same.
12. It was further averred that the High Court had failed to examine the facts of the FIR to see whether the facts stated in the FIR constitute any prima facie case making out an offence against the sister-in-law and brother-in-law of the complainant and whether there was at all any material to constitute an offence against the appellants and their family members. Attention of this Court was further invited to the contradictions in the statement of the complainant and her father which indicate material contradictions indicating that the complainant and her father have concocted the story to implicate the appellants as well as all their family members in a criminal case merely with a mala fide intention to settle her scores and extract money from the family of her ex-husband Shyamji Mehrotra and his family members.
13. On a perusal of the complaint and other materials on record as also analysis of the arguments advanced by the contesting parties in the light of the settled principles of law reflected in a catena of decisions, it is apparent that the High Court has not applied its mind on the question as to whether the case was fit to be quashed against the appellants and has merely disposed of the petition granting liberty to the appellants to move the trial court and raise contentions on the ground as to whether it has territorial jurisdiction to continue with the trial in the light of the averment that no part of the cause of action had arisen at Allahabad and the entire incident even as per the FIR had taken place at Faridabad.
14. The High Court further overlooked the fact that during the pendency of this case, the complainant-respondent No.2 has obtained an ex-parte decree of divorce against her husband Shyamji Mehrotra and the High Court failed to apply its mind whether any case could be held to have been made out against Kumari Geeta Mehrotra and Ramji Mehrotra, who are the unmarried sister and elder brother of the complainant’s ex-husband. Facts of the FIR even as it stands indicate that although a prima facie case against the husband Shyamji Mehrotra and some other accused persons may or may not be constituted, it surely appears to be a case where no ingredients making out a case against the unmarried sister of the accused Shyamji Mehrotra and his brother Ramji Mehrotra appear to be existing for even when the complainant came to her in-law’s house after her wedding, she has alleged physical and mental torture by stating in general that she had been ordered to do household activities of cooking meals for the whole family. But there appears to be no specific allegation against the sister and brother of the complainant’s husband as to how they could be implicated into the mutual bickering between the complainant and her husband Shyamji Mehrotra including his parents.
15. Under the facts and circumstance of similar nature in the case of Ramesh vs. State of Tamil Nadu reported in (2005) SCC (Crl.) 735 at 738 allegations were made in a complaint against the husband, the in-laws, husband’s brother and sister who were all the petitioners before the High Court wherein after registration of the F.I.R. and investigation, the charge sheet was filed by the Inspector of Police in the court of Judicial Magistrate III, Trichy. Thereupon, the learned magistrate took cognizance of the offence and issued warrants against the appellants on 13.2.2002. Four of the accused-appellants were arrested and released on bail by the magistrate at Mumbai. The appellants had filed petition under Section 482, Cr.P.C. before the Madras High Court for quashing the proceedings in complaint case on the file of the Judicial Magistrate III, Trichy. The High Court by the impugned order dismissed the petition observing that the grounds raised by the petitioners were all subject matters to be heard by the trial court for better appreciation after conducting full trial as the High Court was of the view that it was only desirable to dismiss the criminal original petition and the same was also dismissed. However, the High Court had directed the Magistrate to dispense with the personal attendance of the appellants.
16. Aggrieved by the order of the Madras High Court dismissing the petition under Section 482 Cr.P.C., the special leave petition was filed in this Court giving rise to the appeals therein where threefold contentions were raised viz., (i) that the allegations are frivolous and without any basis; (ii) even according to the FIR, no incriminating acts were done within the jurisdiction of Trichy Police Station and the court at Trichy and, therefore, the learned magistrate lacked territorial jurisdiction to take cognizance of the offence and (iii) taking cognizance of the alleged offence at that stage was barred under Section 468(1) Cr.P.C. as it was beyond the period of limitation prescribed under Section 468(2) Cr.P.C. Apart from the subsequent two contentions, it was urged that the allegations under the FIR do not make out any offence of which cognizance could be taken.
17. Their Lordships of the Supreme Court in this matter had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet, none of the alleged offences under Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly not living with the family of the complainant’s husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.
18. In so far as the plea of territorial jurisdiction is concerned, it is no doubt true that the High Court was correct to the extent that the question of territorial jurisdiction could be decided by the trial court itself. But this ground was just one of the grounds to quash the proceedings initiated against the appellants under Section 482 Cr.P.C. wherein it was also alleged that no prima facie case was made out against the appellants for initiating the proceedings under the Dowry Prohibition Act and other provisions of the IPC. The High Court has failed to exercise its jurisdiction in so far as the consideration of the case of the appellants are concerned, who are only brother and sister of the complainant’s husband and are not alleged even by the complainant to have demanded dowry from her. The High Court, therefore, ought to have considered that even if the trial court at Allahabad had the jurisdiction to hold the trial, the question still remained as to whether the trial against the brother and sister of the husband was fit to be continued and whether that would amount to abuse of the process of the court.
19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.
20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:
“there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”
The view taken by the judges in this matter was that the courts would not encourage such disputes.
21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA 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 punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.
22. In the instant matter, when the complainant and her husband are divorced as the complainant-wife secured an ex-parte decree of divorce, the same could have weighed with the High Court to consider whether proceeding initiated prior to the divorce decree was fit to be pursued in spite of absence of specific allegations at least against the brother and sister of the complainant’s husband and whether continuing with this proceeding could not have amounted to abuse of the process of the court. The High Court, however, seems not to have examined these aspects carefully and have thus side- tracked all these considerations merely on the ground that the territorial jurisdiction could be raised only before the magistrate conducting the trial.
23. In the instant case, the question of territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the High Court to consider all these aspects. But in matters arising out of a criminal case, fresh consideration by remanding the same would further result into a protracted and vexatious proceeding which is unwarranted as was held by this Court in the case of Ramesh vs. State of Tamil Nadu (supra) that such a course of remand would be unnecessary and inexpedient as there was no need to prolong the controversy. The facts in this matter on this aspect was although somewhat different since the complainant had lodged the complaint after seven years of delay, yet in the instant matter the factual position remains that the complaint as it stands lacks ingredients constituting the offence under Section 498A and Section 3/4 Dowry Prohibition Act against the appellants who are sister and brother of the complainant’s husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them.
24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.
25. In the case at hand, when the brother and unmarried sister of the principal accused Shyamji Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498A,/323/504/506 including Sections 3/4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court.
26. The High Court in our considered opinion appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498A/323/504/506, IPC and Sections 3/4 of the Dowry Prohibition Act.
27. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant’s husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed.
……………………………J
(T.S. Thakur)
……………………………J
(Gyan Sudha Misra)
New Delhi,
October 17, 2012
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Sunday, May 29, 2011

498a IPC is Legal Terrorism in India

498a IPC is a Legal Terrorism say supreme Court of India:



In The Supreme court of India

Original Jurisdiction

Writ Petition no. 141 of 2005

Sushil Kumar Sharma ... Petitioner

Versus

Union Of India & Ors. ... Respondents

J U D G E M E N T

ARIJIT PASAYAT. J.

By this petition purported to have been filed under article 32 of the constitution of India, 1950 (In short ‘The Constitution’) prayer is to declare the Section 498A of Indian Penal Code, 1860 (in Short ‘The IPC’) to be unconstitutional and ultra virus in the alternative to formulate guidelines so that innocent persons are not victimized by unscrupulous persons making false accusations.

Further prayer is made that whenever, any court comes to the conclusion that the allegations made regarding commission of offence under section 498A IPC are unfounded, stringent actions should be taken against person making the allegations. This, according to petitioner, would discourage persons from coming go courts with unclean hands and ulterior motives. Several instances have been highlighted to show as to how commission of the offence punishable under section 498A IPC has been made with oblique motives and with a view to harass the husband, in-laws and relatives.

According to the petitioner there is no prosecution in these cases but persecution. Reliance has also placed on a decision rendered by learned Single Judge of Delhi High Court wherein concern was shown about the increase in number of false and frivolous allegations made. It was pointed out that accusers are more at fault than the accused. Persons try to take undue advantage of the sympathies exhibited by the courts in matters relating to alleged dowry torture.

Section 498A appears in chapter XXA of IPC.

Substantive Section 498A IPC and Presumptive Section 113-B of the Indian Evidence Act. 1972 (ins short ‘Evidence Act’) have been inserted in the respective statutes by criminal law (Section Amendment) Act. 1983.

Section 498A IPC and Section 113-B of the Evidence Act Include in their amplitude past events of cruelty. Period of operation of Section 113-B of the evidence act is seven years, presumption arises when a women committed suicide within a period of seven years from the date of marriage.

Section 498A reads as follows:

"498A: Husband or relative of husband of a women 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 of a term which may extend to three years and shall also be liable to fine.



Explanation – For the purpose of 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 (whatever 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 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."



Section 113-B reads as follows:-



"113-B: Presumption as to dowry death – When the question is weather a person has committed the dowry death of a women and it is shown that soon before her death such woman has been subjected by such person to cruelty of harassment for, or in connection with, any demand of dowry, the court shall presume that such person had caused the dowry death.



Explanation – For the purpose of this section ‘dowry death’ shall have the same meaning as section 304-B of the Indian Penal Code (45 of 1860)."

Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger of life, limb or health, weather mental or physical of the woman is required to be established in order to bring home the application of section 498A IPC. Cruelty has been defined in the explanation for the purpose of section 498A. It is to be noted that section 304-B and 498A, Ipc can not be held to be mutually inclusive. these provisions deal with tow distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The explanation to section 498A gives the meaning of ‘cruelty’. In Section 304-B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to be taken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation of section 498A under which ‘cruelty’ by itself amounts to an offence.



The object for which section 498A IPC was introduced is amply reflected in the Statement of Objects and reason while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the houses to examine the work of the Dowry Prohibition Act. 1961. In some cases, cruelty of the husband and the relatives of the husband which culminates in suicide by or murder of the helpless women concerned, which constitutes only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC< the code of Criminal Procedure 1973 (in short ‘the CR. P. C.’) and the Evidence Act suitably to deal effectively not only with the cases of dowry death but also the cases of cruelty of married women by the husband, in-laws and relatives. The avowed object it to combat the menace of dowry death and cruelty.



One other provision which is relevant to be noted is section-306 IPC. The basic difference between the two Sections i.e. Section 306 and section 498A is that of intention. Under the latter, cruelty committed by the husband or his relatives drag the woman concerned to commit suicide, while under the former provision suicide is abetted and intended.



It is well settled that more possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done "not with an evil eye and unequal hand" {(SEE: A.Thangal Kunju Musaliar v. M. Venkatachalam Potti. Authorized Officer and Income-Tax Officer and another) AIR 1956 SC 246}.

In Budhan Choudhry and others v. State of Bihar ( AIR 1955 SC 191) a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled that contention holding that on the possibility of abuse of provision by the authority, the legislation may be held arbitrary or discriminatory and violative of Article 14 of the constitution.



From the decided cases in India as well as United States of America, the principles appeaser to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, more possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, "action" and not the "section" may be vulnerable. If it is so the court by upholding the provision of law, may still set aside the action, order of decision and grant appropriate relief to the person aggrieved.



In Mafatlal Industries Ltd. And Ors. V. Union of India and Ors. (1997 (5) SCC 536), a Bench of 9 Judges observed that mere possibility of abuse of provision by those in charge of administrating it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v Nathella Sampathu Chetty (1962 (3) SCR 786) this court observed.



"The possibility of abuse of a statue otherwise valid does not impart to it any element of invalidity." It was said in State of Rejesthan v. Union of India (1977 (3) SCC 592) "it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief." (Also see: Commissioner H.R.F v. Sri Lakshmindra Thirtha Swamir of Sri Shirur Meth (1954 SCR 1005)



As observed in Maulavi Hussain Haji Abrahem Umarji v. State of Gujarat (2004 (6) SCC 672). Unique Butle Tube Industries (P) Ltd. V. U. P. Financial Corporation and Ors. 2003 (2) SCC 455) and Padam Sundara Rago (dead) and Ors. V. State of T and Ors (2002 (3) SCC 533). While interpreting a provision, the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislatures to amend, modify or repeal it, if deemed necessary.



The Judgement of the Delhi High Court on which reliance was made was rendered in the case of Savitri Devi v. Ramesh Chand & Ors. In that case while holding that the allegations are regarding commission of offence punishable under section 498A IPC were not made out. Certain observation in general terms were made about the need for legislative changes. The complainant had moved this Court against the Judgement on merits in SPL(CRL)...... of 2003 entitled Savitri Devi vs. Ramesh Chand & Ors. By order dated 28.11.2003 this court observed as follows:

"Heard learned counsel for the petitioner.

Delay condoned.

We do not see any merit in the challenge made to the order of High Court in the Criminal revision No. 462 of 2002, on the facts of the case. The special leave petition is therefore dismissed.

At the same time, we express our disapproval of some of the generalized views expressed in the paragraphs 23 to 32 of the judgement of the High Court by the learned single Judge. The learned Judge ought to have seen that such observations, thought may be appropriate for seminars of workshops, should have been avoided being incorporated as part of the court judgement. Some of the views also touch upon legislative measures and wisdom of the legislative police in substance which according to the learned judge need to be taken into account. There was no scope for considering all such matters in the case which was before the learned judge. It is therefore, appropriate that such generalized observations or views should meticulously avoided by the Courts in the judgements."

Above being the position we find no substance in the plea that section 498A has no legal or constitutional foundation.



The object of provision is prevention of the dowry menace. But as has been rightly contented by the petitioner, many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignomy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent the abuse of well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a license to unscrupulous person 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 framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism cam be unleashed. The provision is intended to be used as a shield and not as an assassin's weapon. If cry of wolf is made too often as a prank assistance and protection may not be available when the actual wolf appears. There is no question of investigation agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and courts start with the presumption that accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the courts have t ace on circumstantial evidence while dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.





Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the 'CBI') in certain matters where the petitioner is arrayed as an accused. we do not find any substance in this plea. It the petitioner wants to prove his innocence, he can do so in the trial, if held.

The writ petition is accordingly disposed of.









.......................J

(ARIJIT PASAYAT) .



.......................J

(H. K. SEMA) .



New Delhi

July 19. 2005


By :www.divorce-lawyers-india.com