. Thus, after careful consideration of the whole issue, we
consider it fit to give following directions :-
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 in 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 be given to the Authority by whom the complaint is referred to it
latest within one month from the date of receipt of complaint.
(f) The committee may
give its brief report about the factual aspects and its opinion in the matter.
(g) Till 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 officer may be required to undergo
training for such duration (not less than one week) as may be considered
appropriate. The 18 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, 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 appearance by video conferencing without adversely affecting progress
of the trial.
viii) These
directions will not apply to the offences involving tangible physical injuries
or death.
After seeing the
working of the above arrangement for six months but latest by March 31, 2018,
National Legal Services 20 Authority may give a report about need for any
change in above directions or for any further directions. The matter may be
listed for consideration by the Court in April, 2018. 21. Copies of this order
be sent to National Legal Services Authority, Director General of Police of all
the States and the Registrars of all the High Courts for further appropriate
action. 22. It will be open to the parties in the present case to approach the
concerned trial or other court for further orders in the light of the above
directions
1 REPORTABLE
IN THE SUPREME COURT
OF INDIA
CRIMINAL APPELLATE
JURISDICTION
CRIMINAL APPEAL NO.
1265 OF 2017
[Arising out of Special Leave Petition (Crl.) No.2013 of
2017]
Rajesh Sharma & ors. …Appellants Versus State of U.P.
& Anr. …Respondents
J U D G M E N T
Adarsh Kumar Goel, J
Leave granted.
2. The question which
has arisen in this appeal is whether any directions are called for to prevent
the misuse of Section 498A, as acknowledged in certain studies and decisions.
The Court requested Shri A.S. Nadkarni, learned ASG and Shri V.V. Giri, learned
senior counsel to assist the Court as amicus. We place on record our gratitude
for the assistance rendered by learned ASG Shri Nadkarni and learned senior
counsel Shri Giri who in turn was 2 ably assisted by advocates Ms. Uttara
Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker.
3. Proceedings have
arisen from complaint dated 2nd December, 2013 filed by respondent No.2 wife of
appellant No.1. Appellants 2 to 5 are the parents and siblings of appellant
No.1. The complainant alleged that she was married to appellant No.1 on 28th
November, 2012. Her father gave dowry as per his capacity but the appellants
were not happy with the extent of the dowry. They started abusing the
complainant. They made a demand of dowry of Rs.3,00,000/- and a car which the
family could not arrange. On 10th November, 2013, appellant No.1 dropped the
complainant at her matrimonial home. She was pregnant and suffered pain in the
process and her pregnancy was terminated. On the said version, and further
version that her stridhan was retained, appellant No.1 was summoned under
Section 498A and Section 323 IPC. Appellants 2 to 5 were not summoned. Order
dated 14th July, 2014 read as follows:
“After perusal of the
file and the document brought on record. It is clear that the husband Shri
Rajesh Sharma demanded car and three lacs rupees and in not meeting the demand.
It appears that he has tortured the complainant. 3
So far as torture and
retaining of the stri dhan and demanding 50,000 and a gold chain and in not
meeting the demand the torture is attributable against Shri Rajesh Sharma.
Rajesh Sharma appears to be main accused. In the circumstances, rest of the
accused Vijay Sharma, Jaywati Sharma, Praveen Sharma and Priyanka Sharma have
not committed any crime and they have not participated in commission of the
crime. Whereas, it appears that Rajesh Sharma has committed an offence under
Section 498A, 323 IPC and read with section 3 / 4 DP act appears to have prima
facie made out. Therefore, a summon be issued against him.”
4. Against the above
order, respondent No.2 preferred a revision petition and submitted that
appellants 2 to 5 should also have been summoned. The said petition was
accepted by the Additional Sessions Judge, Jaunpur vide order dated 3rd July,
2015. The trial court was directed to take a fresh decision in the matter.
Thereafter, the trial court vide order dated 18th August, 2015 summoned
appellants 2 to 5 also. The appellants approached the High Court under Section
482 CrPC against the order of summoning. Though the matter was referred to the
mediation centre, the mediation failed. Thereafter, the High Court found no
ground to interfere with the order of summoning and dismissed the petition.
Hence this appeal. 4
5. Main contention
raised in support of this appeal is that there is need to check the tendency to
rope in all family members to settle a matrimonial dispute. Omnibus allegations
against all relatives of the husband cannot be taken at face value when in
normal course it may only be the husband or at best his parents who may be
accused of demanding dowry or causing cruelty. To check abuse of over
implication, clear supporting material is needed to proceed against other
relatives of a husband. It is stated that respondent No.2 herself left the
matrimonial home. Appellant No.2, father of appellant No.1, is a retired
government employee. Appellant No.3 is a house wife. Appellant No.4 is
unmarried brother and appellant No.5 is unmarried sister who is a government
employee. Appellants 2 to 5 had no interest in making any demand of dowry.
6. Learned counsel
for respondent No.2 supported the impugned order and the averments in the
complaint.
7. Learned ASG
submitted that Section 498A was enacted to check unconscionable demands by
greedy husbands and their 5 families which at times result in cruelty to women
and also suicides. He, however, accepted that there is a growing tendency to
abuse the said provision to rope in all the relatives including parents of
advanced age, minor children, siblings, grand-parents and uncles on the
strength of vague and exaggerated allegations without there being any verifiable
evidence of physical or mental harm or injury. At times, this results in
harassment and even arrest of innocent family members, including women and
senior citizens. This may hamper any possible reconciliation and reunion of a
couple. Reference has been made to the statistics from the Crime Records Bureau
(CRB) as follows: “
That according to Reports of National Crime
Record Bureau in 2005, for a total 58,319 cases reported under Section 498A
IPC, a total of 1,27,560 people were arrested, and 6,141 cases were declared
false on account of mistake of fact or law.
While in 2009 for a
total 89,546 cases reported, a total of 1,74,395 people were arrested and 8,352
cases were declared false on account of mistake of fact or law.
10. That according to Report of Crime in India,
2012 Statistics, National Crime Records Bureau, Ministry of Home Affairs showed
that for the year of 2012, a total of 197,762 people all across India were
arrested under Section 498A, Indian Penal Code. The Report further shows that
approximately a quarter of those arrested were women that is 47,951 of the
total were perhaps mother or sisters of the husband. However 6 most
surprisingly the rate of charge-sheet filing for the year 2012, under Section
498A IPC was at an exponential height of 93.6% while the conviction rate was at
a staggering low at 14.4% only. The Report stated that as many as 3,72,706
cases were pending trial of which 3,17,000 were projected to be acquitted.
11. That according to Report of Crime in India,
2013, the National Crime Records Bureau further pointed out that of 4,66,079
cases that were pending in the start of 2013, only 7,258 were convicted while
38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases
registered under Section 498A IPC was also a staggering low at 15.6%.”
8. Referring to
Sushil Kumar Sharma versus Union of India1 , Preeti Gupta versus State of
Jharkhand2 , Ramgopal versus State of Madhya Pradesh3 , Savitri Devi versus
Ramesh Chand4 , it was submitted that misuse of the provision is judicially
acknowledged and there is need to adopt measures to prevent such misuse. The
Madras High Court in M.P. No.1 of 2008 in Cr. O.P. No.1089 of 2008 dated 4th
August, 2008 directed issuance of following guidelines: “It must also be borne in
mind that the object behind the enactment of Section 498-A IPC and the Dowry
Prohibition 1 (2005) 6 SCC 281 2 (2010) 7 SCC 667 3 (2010) 13 SCC 540 4 ILR
(2003) I Delhi 484 7 Act is to check and curb the menace of dowry and at the
same time, to save the matrimonial homes from destruction. Our experience shows
that, apart from the husband, all family members are implicated and dragged to
the police stations. Though arrest of those persons is not at all necessary, in
a number of cases, such harassment is made simply to satisfy the ego and anger
of the complainant. By suitably dealing with such matters, the injury to
innocents could be avoided to a considerable extent by the Magistrates, but, if
the Magistrates themselves accede to the bare requests of the police without
examining the actual state of affairs, it would create negative effects
thereby, the very purpose of the legislation would be defeated and the doors of
conciliation would be closed forever. The husband and his family members may
have difference of opinion in the dispute, for which, arrest and judicial
remand are not the answers. The ultimate object of every legal system is to
punish the guilty and protect the innocents.”
9. Delhi High Court
vide order dated 4th August, 2008 in Chander Bhan versus State5 in Bail
Application No.1627/2008 directed issuance of following guidelines : “2. Police
Authorities: (a) Pursuant to directions given by the Apex Court, the
Commissioner of Police, Delhi vide Standing Order No.330/2007 had already
issued guidelines for arrest in the dowry cases registered under Sections
498-A/406 IPC and the said guidelines should be followed by the Delhi Police
strictly and scrupulously. (i) No case under Section 498-A/406 IPC should be
registered without the prior approval of DCP/Addl.DCP. (ii) Arrest of main
accused should be made only after thorough investigation has been conducted and
with the prior approval of the ACP/DCP. 5 (2008) 151 DLT 691 8 (iii) Arrest of
the collateral accused such as father-in-law, mother-in-law, brother-in-law or
sister-in-law etc. should only be made after prior approval of DCP on file. (b)
Police should also depute a well trained and a well behaved staff in all the
crime against women cells especially the lady officers, all well equipped with
the abilities of perseverance, persuasion, patience and forbearance. (c) FIR in
such cases should not be registered in a routine manner. (d) The endavour of
the Police should be to scrutinize complaints very carefully and then register
FIR. (e) The FIR should be registered only against those persons against whom
there are strong allegations of causing any kind of physical or mental cruelty
as well as breach of trust. (f) All possible efforts should be made, before
recommending registration of any FIR, for reconciliation and in case it is
found that there is no possibility of settlement, then necessary steps in the
first instance be taken to ensure return of stridhan and dowry articles etc. by
the accused party to the complainant.”
10. In Arnesh Kumar
versus State of Bihar6 , this Court directed as follows : “11.1All 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; 11.2 All police officers be provided with a check list
containing specified sub-clauses under Section 41(1)(b)(ii); 6 (2014) 8 SCC 273
9 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 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; 11.7 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. 11.8 Authorising detention
without recording reasons as aforesaid by the judicial Magistrate concerned
shall be liable for departmental action by the appropriate High Court.”
11. Learned ASG
suggested that there must be some preliminary inquiry on the lines of
observations in Lalita Kumari versus Government of Uttar Pradesh7 . Arrest of a
relative other than husband could only be after permission from the concerned
Magistrate. There should be no arrest of relatives aged above 70 years. Power
of the police to straight away arrest must be prohibited. While granting
permission, the court must ascertain that there is prima facie material of the
accused having done some overt and covert act. The offence should be made
compoundable and bailable. The role of each accused must be specified in the
complaint and the complaint must be accompanied by a signed affidavit. The copy
of the preliminary enquiry report should be furnished to the accused.
12. Shri V. Giri,
learned senior counsel assisted by advocates Ms. Uttara Babbar, Ms. Pragya
Baghel and Ms. Svadha Shanker submitted that arrest in an offence under Section
498A should be only after recording reasons and express approval from the
Superintendent of Police. In respect of relatives who are ordinarily residing
outside India, the matter should proceed only if 7 (2014) 2 SCC 1 11 the IO is
convinced that arrest is necessary for fair investigation. In such cases
impounding of passport or issuance of red corner notice should be avoided.
Procedure under Section 14 of the Protection of Women from Domestic Violence
Act, 2005, of counseling should be made mandatory before registration of a case
under Section 498A.
13. We have given serious consideration to the rival
submissions as well as suggestions made by learned ASG and Shri V. Giri, Senior
Advocate assisted by Advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms.
Svadha Shanker. We have also perused 243rd Law Commission Report (August,
2012), 140th Report of the Rajya Sabha Committee on Petition (September, 2011)
as well as several decisions to which our attention has been invited.
14. Section 498A was
inserted in the statute with the laudable object of punishing cruelty at the
hands of husband or his relatives against a wife particularly when such cruelty
had potential to result in suicide or murder of a woman as mentioned in the
Statement of Objects and Reasons of the Act 46 of 1983. 12 The expression
‘cruelty’ in Section 498A covers conduct which may drive the women to commit
suicide or cause grave injury (mental or physical) or danger to life or
harassment with a view to coerce her to meet unlawful demand.8 It is a matter
of serious concern that large number of cases continue to be filed under
Section 498A alleging harassment of married women. We have already referred to
some of the statistics from the Crime Records Bureau. This Court had earlier
noticed the fact that most of such complaints are filed in the heat of the
moment over trivial issues. Many of such complaints are not bona fide. At the
time of filing of the complaint, implications and consequences are not
visualized. At times such complaints lead to uncalled for harassment not only
to the accused but also to the complainant. Uncalled for arrest may ruin the
chances of settlement. This Court had earlier observed that a serious review of
the provision was warranted9 . The matter also appears to have been considered
by the Law Commission, the Malimath Committee, the Committee on Petitions in
the Rajya Sabha, the Home Ministry, which have been referred to in the earlier
part of the Judgment. The abuse of the 8 Explanation to Section 498A 9 Preeti
Gupta (supra) 13 provision was also noted in the judgments of this Court
referred to earlier. Some High Courts have issued directions to check such
abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled
for arrests. Recommendation has also been made by the Law Commission to make
the offence compoundable.
15. Following areas appear to require remedial steps
:- i) Uncalled for implication of husband and his relatives and arrest. ii)
Continuation of proceedings in spite of settlement between the parties since
the offence is non-compoundable and uncalled for hardship to parties on that
account.
16. Function of this
Court is not to legislate but only to interpret the law. No doubt in doing so
laying down of norms is sometimes unavoidable.10 Just and fair procedure being
part of fundamental right to life,11 interpretation is required to be placed on
a penal provision so that its working is not unjust, unfair or unreasonable.
The court has incidental power to quash even a 10 Sahara India Real Estate
Corporation Limited v. Securities and Exchange Board of India (2012) 10 SCC
603- para 52, SCBA v. Union of India (1998) 4 SCC 409- para 47, Union of India
vs. Raghubir Singh (d) by Lrs. (1989) 2 SCC 754- para 7, Dayaram vs. Sudhir
Batham (2012) 1 SCC 333 11 State of Punjab vs. Dalbir Singh (2012) 3 SCC 346-
para 46,52 & 85, (2014) 4 SCC 453- para-21 14 non-compoundable case of
private nature, if continuing the proceedings is found to be oppressive.12
While stifling a legitimate prosecution is against public policy, if the
proceedings in an offence of private nature are found to be oppressive, power
of quashing is exercised.
17. We have considered the background of the issue and also
taken into account the 243rd Report of the Law Commission dated 30th August,
2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011)
and earlier decisions of this Court. We are conscious of the object for which
the provision was brought into the statute. At the same time, violation of
human rights of innocent cannot be brushed aside. Certain safeguards against
uncalled for arrest or insensitive investigation have been addressed by this
Court. Still, the problem continues to a great extent.
18. To remedy the
situation, we are of the view that involvement of civil society in the aid of
administration of justice can be one of the steps, apart from the investigating
officers and the concerned 12 Gian Singh vs. State of Punjab (2012) 10 SCC 303-
para-61, (2014) 5 SCC 364- para -14 15 trial courts being sensitized. It is
also necessary to facilitate closure of proceedings where a genuine settlement
has been reached instead of parties being required to move High Court only for
that purpose.
19. Thus, after
careful consideration of the whole issue, we consider it fit to give following
directions :-
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 in 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 be given to the Authority by whom the complaint is referred to it
latest within one month from the date of receipt of complaint.
(f) The committee may
give its brief report about the factual aspects and its opinion in the matter.
(g) Till 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 officer may be required to undergo
training for such duration (not less than one week) as may be considered
appropriate. The 18 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, 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 appearance by video conferencing without adversely affecting progress
of the trial.
viii) These
directions will not apply to the offences involving tangible physical injuries
or death.
20. After seeing the
working of the above arrangement for six months but latest by March 31, 2018,
National Legal Services 20 Authority may give a report about need for any
change in above directions or for any further directions. The matter may be
listed for consideration by the Court in April, 2018. 21. Copies of this order
be sent to National Legal Services Authority, Director General of Police of all
the States and the Registrars of all the High Courts for further appropriate
action. 22. It will be open to the parties in the present case to approach the
concerned trial or other court for further orders in the light of the above
directions
. …………………………………….J. (Adarsh Kumar Goel)
…………………………………….J. (Uday Umesh Lalit)
New Delhi;
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