tag:blogger.com,1999:blog-89093605296238172462024-03-13T11:38:52.569-07:00misuse of section 498A IPC-Dowry Law in India.Understand the Laws regarding Dowry Cases in India,Our Blog is for common man who can read and understand the things,there is no solicitation from us.
Misuse of Dowry Law in India,498a Ipc is abuse process of Law,Dowry Law must be amended, Amendment in Dowry Law India,Mususe of 498a IPC,Misuse of Dowry Case says Supreme Court of India.V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-8909360529623817246.post-12647904491930726452017-07-27T22:32:00.000-07:002017-07-27T22:32:03.337-07:00Misuse of sec.498-A IPC Dowry Laws in India Supreme Court Judgments.<div dir="ltr" style="text-align: left;" trbidi="on">
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. Thus, after careful consideration of the whole issue, we
consider it fit to give following directions :- </div>
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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.</div>
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(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. </div>
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(c) The Committee
members will not be called as witnesses.</div>
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(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.</div>
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(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.</div>
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(f) The committee may
give its brief report about the factual aspects and its opinion in the matter.</div>
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(g) Till report of
the committee is received, no arrest should normally be effected. </div>
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(h) The report may be
then considered by the Investigating Officer or the Magistrate on its own
merit. </div>
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(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.</div>
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(j) The Members of
the committee may be given such honorarium as may be considered viable.</div>
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(k) It will be open
to the District and Sessions Judge to utilize the cost fund wherever considered
necessary and proper.</div>
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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;</div>
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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;</div>
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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; </div>
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v) In respect of
persons ordinarily residing out of India impounding of passports or issuance of
Red Corner Notice should not be a routine;</div>
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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</div>
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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.</div>
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viii) These
directions will not apply to the offences involving tangible physical injuries
or death.</div>
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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</div>
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1 REPORTABLE</div>
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IN THE SUPREME COURT
OF INDIA</div>
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CRIMINAL APPELLATE
JURISDICTION</div>
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CRIMINAL APPEAL NO.
1265 OF 2017 </div>
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[Arising out of Special Leave Petition (Crl.) No.2013 of
2017] </div>
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Rajesh Sharma & ors. …Appellants Versus State of U.P.
& Anr. …Respondents </div>
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J U D G M E N T</div>
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Adarsh Kumar Goel, J </div>
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Leave granted.</div>
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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.</div>
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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:</div>
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“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</div>
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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.”</div>
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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</div>
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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.</div>
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6. Learned counsel
for respondent No.2 supported the impugned order and the averments in the
complaint.</div>
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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: “</div>
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<i> 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.<o:p></o:p></i></div>
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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.</div>
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10. <i>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.</i></div>
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11. <i>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%.”<o:p></o:p></i></div>
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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.”</div>
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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.”</div>
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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.” </div>
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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.</div>
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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. </div>
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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.</div>
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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.</div>
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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.</div>
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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. </div>
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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.</div>
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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.</div>
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19. Thus, after
careful consideration of the whole issue, we consider it fit to give following
directions :- </div>
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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.</div>
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(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. </div>
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(c) The Committee
members will not be called as witnesses.</div>
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(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.</div>
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(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.</div>
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(f) The committee may
give its brief report about the factual aspects and its opinion in the matter.</div>
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(g) Till report of
the committee is received, no arrest should normally be effected. </div>
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(h) The report may be
then considered by the Investigating Officer or the Magistrate on its own
merit. </div>
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(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.</div>
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(j) The Members of
the committee may be given such honorarium as may be considered viable.</div>
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(k) It will be open
to the District and Sessions Judge to utilize the cost fund wherever considered
necessary and proper.</div>
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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;</div>
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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;</div>
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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; </div>
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v) In respect of
persons ordinarily residing out of India impounding of passports or issuance of
Red Corner Notice should not be a routine;</div>
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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</div>
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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.</div>
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viii) These
directions will not apply to the offences involving tangible physical injuries
or death.</div>
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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</div>
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<br /></div>
<div class="MsoNormal">
. …………………………………….J. (Adarsh Kumar Goel) </div>
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…………………………………….J. (Uday Umesh Lalit) </div>
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New Delhi;</div>
<br />
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<br /></div>
</div>
V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-8909360529623817246.post-51520880547476353202015-02-15T08:05:00.000-08:002015-02-15T08:05:56.269-08:00Before arrest sec.41 of Cr.P.C. Notice is mandatory in sec.498-A IPC Dowry cases.<div dir="ltr" style="text-align: left;" trbidi="on">
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<strong style="border: 0px; box-sizing: border-box; margin: 0px; padding: 0px; vertical-align: baseline;">41. When police may arrest without warrant .- </strong>(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—<br />
*[(a) who commits, in the presence of a police officer, a cognizable offence;</div>
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(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:-</div>
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(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;</div>
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(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.</div>
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**[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.]</div>
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(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;”’</div>
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*[sub-clauses (a) and (b) substituted by Code of Criminal Procedure Amendment act, 2008]</div>
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**[Proviso to sub-clause (b) inserted by Code of Criminal Procedure Amendment Act, 2010]</div>
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*[(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.” }</div>
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*[sub-clause (2) substituted by Code of Criminal Procedure Amendment act, 2008]</div>
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<br /></div>
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<strong style="border: 0px; box-sizing: border-box; margin: 0px; padding: 0px; vertical-align: baseline;">*[41A. Notice of appearance before police officer. – </strong>(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.</div>
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(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.</div>
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(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.</div>
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**[(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.”</div>
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*[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]</div>
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**[sub-clause (4) substituted by Code of Criminal Procedure Amendment act, 2010]</div>
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<br /></div>
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<strong style="border: 0px; box-sizing: border-box; margin: 0px; padding: 0px; vertical-align: baseline;">41B. Procedure of arrest and duties of officer making arrest Procedure of arrest and duties of officer making arrest. – </strong>Every police officer while making an arrest shall-</div>
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(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;</div>
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(b) prepare a memorandum of arrest which shall be-</div>
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(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;</div>
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(ii) countersigned by the person arrested; and</div>
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(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.</div>
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*[Inserted by Code of Criminal Procedure Amendment act, 2008]</div>
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V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-8909360529623817246.post-86471743238705175612014-07-03T09:44:00.003-07:002014-07-03T09:44:57.553-07:00No Arrest in sec.498-A IPC without permission of Magistrate-Supreme Court of India.<div dir="ltr" style="text-align: left;" trbidi="on">
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REPORTABLE<br style="line-height: inherit;" />IN THE SUPREME COURT OF INDIA<br style="line-height: inherit;" />CRIMINAL APPELLATE JURISDICTION</div>
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CRIMINAL APPEAL NO. 1277 OF 2014<br style="line-height: inherit;" />(@SPECIAL LEAVE PETITION (CRL.) <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">No.9127</span> of 2013)<br style="line-height: inherit;" />ARNESH KUMAR ….. APPELLANT</div>
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VERSUS</div>
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STATE OF BIHAR & ANR. …. RESPONDENTS<br style="line-height: inherit;" />J U D G M E N T<br style="line-height: inherit;" />Chandramauli Kr. Prasad</div>
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The petitioner apprehends his arrest in a case under Section 498-A of<br style="line-height: inherit;" />the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of<br style="line-height: inherit;" />the Dowry Prohibition Act, 1961. The maximum sentence provided under<br style="line-height: inherit;" />Section 498-A IPC is imprisonment for a term which may extend to three<br style="line-height: inherit;" />years and fine whereas the maximum sentence provided under Section 4 of the<br style="line-height: inherit;" />Dowry Prohibition Act is two years and with fine.</div>
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Petitioner happens to be the husband of respondent no.2 Sweta Kiran.<br style="line-height: inherit;" />The marriage between them was solemnized on 1st July, 2007. His attempt to<br style="line-height: inherit;" />secure anticipatory bail has failed and hence he has knocked the door of<br style="line-height: inherit;" />this Court by way of this Special Leave Petition.</div>
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Leave granted.</div>
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In sum and substance, allegation levelled by the wife against the<br style="line-height: inherit;" />appellant is that demand of Rupees eight lacs, a maruti car, an<br style="line-height: inherit;" />air-conditioner, television set etc. was made by her mother-in-law and<br style="line-height: inherit;" />father-in-law and when this fact was brought to the appellant’s notice, he<br style="line-height: inherit;" />supported his mother and threatened to marry another woman. It has been<br style="line-height: inherit;" />alleged that she was driven out of the matrimonial home due to non-<br style="line-height: inherit;" />fulfilment of the demand of dowry.</div>
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Denying these allegations, the appellant preferred an application for<br style="line-height: inherit;" />anticipatory bail which was earlier rejected by the learned Sessions Judge<br style="line-height: inherit;" />and thereafter by the High Court.</div>
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<br /></div>
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There is phenomenal increase in matrimonial disputes in recent years.<br style="line-height: inherit;" />The institution of marriage is greatly revered in this country. Section<br style="line-height: inherit;" />498-A of the IPC was introduced with avowed object to combat the menace of<br style="line-height: inherit;" />harassment to a woman at the hands of her husband and his relatives. The<br style="line-height: inherit;" />fact that Section 498-A is a cognizable and non-bailable offence has lent<br style="line-height: inherit;" />it a dubious place of pride amongst the provisions that are used as weapons<br style="line-height: inherit;" />rather than shield by disgruntled wives. The simplest way to harass is to<br style="line-height: inherit;" />get the husband and his relatives arrested under this provision. In a<br style="line-height: inherit;" />quite number of cases, bed-ridden grand-fathers and grand-mothers of the<br style="line-height: inherit;" />husbands, their sisters living abroad for decades are arrested. “Crime in<br style="line-height: inherit;" />India 2012 Statistics” published by National Crime Records Bureau,<br style="line-height: inherit;" />Ministry of Home Affairs shows arrest of 1,97,762 persons all over India<br style="line-height: inherit;" />during the year 2012 for offence under Section 498-A of the IPC, 9.4% more<br style="line-height: inherit;" />than the year 2011. Nearly a quarter of those arrested under this<br style="line-height: inherit;" />provision in 2012 were women i.e. 47,951 which depicts that mothers and<br style="line-height: inherit;" />sisters of the husbands were liberally included in their arrest net. Its<br style="line-height: inherit;" />share is 6% out of the total persons arrested under the crimes committed<br style="line-height: inherit;" />under Indian Penal Code. It accounts for 4.5% of total crimes committed<br style="line-height: inherit;" />under different sections of penal code, more than any other crimes<br style="line-height: inherit;" />excepting theft and hurt. The rate of charge-sheeting in cases under<br style="line-height: inherit;" />Section 498A, IPC is as high as 93.6%, while the conviction rate is only<br style="line-height: inherit;" />15%, which is lowest across all heads. As many as 3,72,706 cases are<br style="line-height: inherit;" />pending trial of which on current estimate, nearly 3,17,000 are likely to<br style="line-height: inherit;" />result in acquittal.</div>
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Arrest brings humiliation, curtails freedom and cast scars forever.<br style="line-height: inherit;" />Law makers know it so also the police. There is a battle between the law<br style="line-height: inherit;" />makers and the police and it seems that police has not learnt its lesson;<br style="line-height: inherit;" />the lesson implicit and embodied in the <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span>. It has not come out of its<br style="line-height: inherit;" />colonial image despite six decades of independence, it is largely<br style="line-height: inherit;" />considered as a tool of harassment, oppression and surely not considered a<br style="line-height: inherit;" />friend of public. The need for caution in exercising the drastic power of<br style="line-height: inherit;" />arrest has been emphasized time and again by Courts but has not yielded<br style="line-height: inherit;" />desired result. Power to arrest greatly contributes to its arrogance so<br style="line-height: inherit;" />also the failure of the Magistracy to check it. Not only this, the power<br style="line-height: inherit;" />of arrest is one of the lucrative sources of police corruption. The<br style="line-height: inherit;" />attitude to arrest first and then proceed with the rest is despicable. It<br style="line-height: inherit;" />has become a handy tool to the police officers who lack sensitivity or act<br style="line-height: inherit;" />with oblique motive.</div>
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Law Commissions, Police Commissions and this Court in a large number<br style="line-height: inherit;" />of judgments emphasized the need to maintain a balance between individual<br style="line-height: inherit;" />liberty and societal order while exercising the power of arrest. Police<br style="line-height: inherit;" />officers make arrest as they believe that they possess the power to do so.<br style="line-height: inherit;" />As the arrest curtails freedom, brings humiliation and casts scars forever,<br style="line-height: inherit;" />we feel differently. We believe that no arrest should be made only<br style="line-height: inherit;" />because the offence is non-bailable and cognizable and therefore, lawful<br style="line-height: inherit;" />for the police officers to do so. The existence of the power to arrest is<br style="line-height: inherit;" />one thing, the justification for the exercise of it is quite another. Apart<br style="line-height: inherit;" />from power to arrest, the police officers must be able to justify the<br style="line-height: inherit;" />reasons thereof. No arrest can be made in a routine manner on a mere<br style="line-height: inherit;" />allegation of commission of an offence made against a person. It would be<br style="line-height: inherit;" />prudent and wise for a police officer that no arrest is made without a<br style="line-height: inherit;" />reasonable satisfaction reached after some investigation as to the<br style="line-height: inherit;" />genuineness of the allegation. Despite this legal position, the Legislature<br style="line-height: inherit;" />did not find any improvement. Numbers of arrest have not decreased.<br style="line-height: inherit;" />Ultimately, the Parliament had to intervene and on the recommendation of<br style="line-height: inherit;" />the 177th Report of the Law Commission submitted in the year 2001, Section<br style="line-height: inherit;" />41 of the Code of Criminal Procedure (for short ‘<span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span>), in the present<br style="line-height: inherit;" />form came to be enacted. It is interesting to note that such a<br style="line-height: inherit;" />recommendation was made by the Law Commission in its 152nd and 154th Report<br style="line-height: inherit;" />submitted as back in the year 1994. The value of the proportionality<br style="line-height: inherit;" />permeates the amendment relating to arrest. As the offence with which we<br style="line-height: inherit;" />are concerned in the present appeal, provides for a maximum punishment of<br style="line-height: inherit;" />imprisonment which may extend to seven years and fine, Section 41(1)(b),<br style="line-height: inherit;" /><span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span> which is relevant for the purpose reads as follows:</div>
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“41. When police may arrest without warrant.-(1) Any police officer may<br style="line-height: inherit;" />without an order from a Magistrate and without a warrant, arrest any person<br style="line-height: inherit;" />–</div>
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(a)x x x x x x</div>
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(b)against whom a reasonable complaint has been made, or credible<br style="line-height: inherit;" />information has been received, or a reasonable suspicion exists that he has<br style="line-height: inherit;" />committed a cognizable offence punishable with imprisonment for a term<br style="line-height: inherit;" />which may be less than seven years or which may extend to seven years<br style="line-height: inherit;" />whether with or without fine, if the following conditions are satisfied,<br style="line-height: inherit;" />namely :-</div>
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(i) x x x x x</div>
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(ii) the police officer is satisfied that such arrest is necessary –</div>
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to prevent such person from committing any further offence; or</div>
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for proper investigation of the offence; or</div>
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to prevent such person from causing the evidence of the offence to<br style="line-height: inherit;" />disappear or tampering with such evidence in any manner; or</div>
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to prevent such person from making any inducement, threat or promise to any<br style="line-height: inherit;" />person acquainted with the facts of the case so as to dissuade him from<br style="line-height: inherit;" />disclosing such facts to the Court or to the police officer; or</div>
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as unless such person is arrested, his presence in the Court whenever<br style="line-height: inherit;" />required cannot be ensured,</div>
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and the police officer shall record while making such arrest, his reasons<br style="line-height: inherit;" />in writing:</div>
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Provided that a police officer shall, in all cases where the arrest of a<br style="line-height: inherit;" />person is not required under the provisions of this sub-section, record the<br style="line-height: inherit;" />reasons in writing for not making the arrest.</div>
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X x x x x x</div>
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From a plain reading of the aforesaid provision, it is evident that a<br style="line-height: inherit;" />person accused of offence punishable with imprisonment for a term which may<br style="line-height: inherit;" />be less than seven years or which may extend to seven years with or without<br style="line-height: inherit;" />fine, cannot be arrested by the police officer only on its satisfaction<br style="line-height: inherit;" />that such person had committed the offence punishable as aforesaid. Police<br style="line-height: inherit;" />officer before arrest, in such cases has to be further satisfied that such<br style="line-height: inherit;" />arrest is necessary to prevent such person from committing any further<br style="line-height: inherit;" />offence; or for proper investigation of the case; or to prevent the accused<br style="line-height: inherit;" />from causing the evidence of the offence to disappear; or tampering with<br style="line-height: inherit;" />such evidence in any manner; or to prevent such person from making any<br style="line-height: inherit;" />inducement, threat or promise to a witness so as to dissuade him from<br style="line-height: inherit;" />disclosing such facts to the Court or the police officer; or unless such<br style="line-height: inherit;" />accused person is arrested, his presence in the court whenever required<br style="line-height: inherit;" />cannot be ensured. These are the conclusions, which one may reach based on<br style="line-height: inherit;" />facts. Law mandates the police officer to state the facts and record the<br style="line-height: inherit;" />reasons in writing which led him to come to a conclusion covered by any of<br style="line-height: inherit;" />the provisions aforesaid, while making such arrest. Law further requires<br style="line-height: inherit;" />the police officers to record the reasons in writing for not making the<br style="line-height: inherit;" />arrest. In pith and core, the police office before arrest must put a<br style="line-height: inherit;" />question to himself, why arrest? Is it really required? What purpose it<br style="line-height: inherit;" />will serve? What object it will achieve? It is only after these questions<br style="line-height: inherit;" />are addressed and one or the other conditions as enumerated above is<br style="line-height: inherit;" />satisfied, the power of arrest needs to be exercised. In fine, before<br style="line-height: inherit;" />arrest first the police officers should have reason to believe on the basis<br style="line-height: inherit;" />of information and material that the accused has committed the offence.<br style="line-height: inherit;" />Apart from this, the police officer has to be satisfied further that the<br style="line-height: inherit;" />arrest is necessary for one or the more purposes envisaged by sub-clauses<br style="line-height: inherit;" />(a) to (e) of clause (1) of Section 41 of <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span>.</div>
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An accused arrested without warrant by the police has the<br style="line-height: inherit;" />constitutional right under Article 22(2) of the Constitution of India and<br style="line-height: inherit;" />Section 57, <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span> to be produced before the Magistrate without unnecessary<br style="line-height: inherit;" />delay and in no circumstances beyond 24 hours excluding the time necessary<br style="line-height: inherit;" />for the journey. During the course of investigation of a case, an accused<br style="line-height: inherit;" />can be kept in detention beyond a period of 24 hours only when it is<br style="line-height: inherit;" />authorised by the Magistrate in exercise of power under Section 167 <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span>.<br style="line-height: inherit;" />The power to authorise detention is a very solemn function. It affects the<br style="line-height: inherit;" />liberty and freedom of citizens and needs to be exercised with great care<br style="line-height: inherit;" />and caution. Our experience tells us that it is not exercised with the<br style="line-height: inherit;" />seriousness it deserves. In many of the cases, detention is authorised in a<br style="line-height: inherit;" />routine, casual and cavalier manner. Before a Magistrate authorises<br style="line-height: inherit;" />detention under Section 167, <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span>, he has to be first satisfied that the<br style="line-height: inherit;" />arrest made is legal and in accordance with law and all the constitutional<br style="line-height: inherit;" />rights of the person arrested is satisfied. If the arrest effected by the<br style="line-height: inherit;" />police officer does not satisfy the requirements of Section 41 of the Code,<br style="line-height: inherit;" />Magistrate is duty bound not to authorise his further detention and release<br style="line-height: inherit;" />the accused. In other words, when an accused is produced before the<br style="line-height: inherit;" />Magistrate, the police officer effecting the arrest is required to furnish<br style="line-height: inherit;" />to the Magistrate, the facts, reasons and its conclusions for arrest and<br style="line-height: inherit;" />the Magistrate in turn is to be satisfied that condition precedent for<br style="line-height: inherit;" />arrest under Section 41 <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span> has been satisfied and it is only thereafter<br style="line-height: inherit;" />that he will authorise the detention of an accused. The Magistrate before<br style="line-height: inherit;" />authorising detention will record its own satisfaction, may be in brief but<br style="line-height: inherit;" />the said satisfaction must reflect from its order. It shall never be<br style="line-height: inherit;" />based upon the ipse dixit of the police officer, for example, in case the<br style="line-height: inherit;" />police officer considers the arrest necessary to prevent such person from<br style="line-height: inherit;" />committing any further offence or for proper investigation of the case or<br style="line-height: inherit;" />for preventing an accused from tampering with evidence or making inducement<br style="line-height: inherit;" />etc., the police officer shall furnish to the Magistrate the facts, the<br style="line-height: inherit;" />reasons and materials on the basis of which the police officer had reached<br style="line-height: inherit;" />its conclusion. Those shall be perused by the Magistrate while authorising<br style="line-height: inherit;" />the detention and only after recording its satisfaction in writing that the<br style="line-height: inherit;" />Magistrate will authorise the detention of the accused. In fine, when a<br style="line-height: inherit;" />suspect is arrested and produced before a Magistrate for authorising<br style="line-height: inherit;" />detention, the Magistrate has to address the question whether specific<br style="line-height: inherit;" />reasons have been recorded for arrest and if so, prima facie those reasons<br style="line-height: inherit;" />are relevant and secondly a reasonable conclusion could at all be reached<br style="line-height: inherit;" />by the police officer that one or the other conditions stated above are<br style="line-height: inherit;" />attracted. To this limited extent the Magistrate will make judicial<br style="line-height: inherit;" />scrutiny.</div>
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Another provision i.e. Section 41A <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span> aimed to avoid<br style="line-height: inherit;" />unnecessary arrest or threat of arrest looming large on accused requires to<br style="line-height: inherit;" />be vitalised. Section 41A as inserted by Section 6 of the Code of<br style="line-height: inherit;" />Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant<br style="line-height: inherit;" />in the context reads as follows:</div>
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“41A. Notice of appearance before police officer.-(1) The police officer<br style="line-height: inherit;" />shall, in all cases where the arrest of a person is not required under the<br style="line-height: inherit;" />provisions of sub-section (1) of Section 41, issue a notice directing the<br style="line-height: inherit;" />person against whom a reasonable complaint has been made, or credible<br style="line-height: inherit;" />information has been received, or a reasonable suspicion exists that he has<br style="line-height: inherit;" />committed a cognizable offence, to appear before him or at such other place<br style="line-height: inherit;" />as may be specified in the notice.</div>
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(2) Where such a notice is issued to any person, it shall be the duty of<br style="line-height: inherit;" />that person to comply with the terms of the notice.</div>
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(3) Where such person complies and continues to comply with the notice, he<br style="line-height: inherit;" />shall not be arrested in respect of the offence referred to in the notice<br style="line-height: inherit;" />unless, for reasons to be recorded, the police officer is of the opinion<br style="line-height: inherit;" />that he ought to be arrested.</div>
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(4) Where such person, at any time, fails to comply with the terms of the<br style="line-height: inherit;" />notice or is unwilling to identify himself, the police officer may, subject<br style="line-height: inherit;" />to such orders as may have been passed by a competent Court in this behalf,<br style="line-height: inherit;" />arrest him for the offence mentioned in the notice.”</div>
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Aforesaid provision makes it clear that in all cases where the<br style="line-height: inherit;" />arrest of a person is not required under Section 41(1), <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span>, the police<br style="line-height: inherit;" />officer is required to issue notice directing the accused to appear before<br style="line-height: inherit;" />him at a specified place and time. Law obliges such an accused to appear<br style="line-height: inherit;" />before the police officer and it further mandates that if such an accused<br style="line-height: inherit;" />complies with the terms of notice he shall not be arrested, unless for<br style="line-height: inherit;" />reasons to be recorded, the police office is of the opinion that the arrest<br style="line-height: inherit;" />is necessary. At this stage also, the condition precedent for arrest as<br style="line-height: inherit;" />envisaged under Section 41 <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span> has to be complied and shall be subject to<br style="line-height: inherit;" />the same scrutiny by the Magistrate as aforesaid.</div>
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We are of the opinion that if the provisions of Section 41,<br style="line-height: inherit;" /><span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span> which authorises the police officer to arrest an accused without an<br style="line-height: inherit;" />order from a Magistrate and without a warrant are scrupulously enforced,<br style="line-height: inherit;" />the wrong committed by the police officers intentionally or unwittingly<br style="line-height: inherit;" />would be reversed and the number of cases which come to the Court for grant<br style="line-height: inherit;" />of anticipatory bail will substantially reduce. We would like to emphasise<br style="line-height: inherit;" />that the practice of mechanically reproducing in the case diary all or most<br style="line-height: inherit;" />of the reasons contained in Section 41 <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span> for effecting arrest be<br style="line-height: inherit;" />discouraged and discontinued.</div>
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Our endeavour in this judgment is to ensure that police officers do not<br style="line-height: inherit;" />arrest accused unnecessarily and Magistrate do not authorise detention<br style="line-height: inherit;" />casually and mechanically. In order to ensure what we have observed above,<br style="line-height: inherit;" />we give the following direction:</div>
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All the State Governments to instruct its police officers not to<br style="line-height: inherit;" />automatically arrest when a case under Section 498-A of the IPC is<br style="line-height: inherit;" />registered but to satisfy themselves about the necessity for arrest under<br style="line-height: inherit;" />the parameters laid down above flowing from Section 41, <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span>;</div>
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All police officers be provided with a check list containing specified sub-<br style="line-height: inherit;" />clauses under Section 41(1)(b)(ii);</div>
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The police officer shall forward the check list duly filed and furnish the<br style="line-height: inherit;" />reasons and materials which necessitated the arrest, while<br style="line-height: inherit;" />forwarding/producing the accused before the Magistrate for further<br style="line-height: inherit;" />detention;</div>
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The Magistrate while authorising detention of the accused shall peruse the<br style="line-height: inherit;" />report furnished by the police officer in terms aforesaid and only after<br style="line-height: inherit;" />recording its satisfaction, the Magistrate will authorise detention;</div>
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The decision not to arrest an accused, be forwarded to the Magistrate<br style="line-height: inherit;" />within two weeks from the date of the institution of the case with a copy<br style="line-height: inherit;" />to the Magistrate which may be extended by the Superintendent of police of<br style="line-height: inherit;" />the district for the reasons to be recorded in writing;</div>
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Notice of appearance in terms of Section 41A of <span class="skimlinks-unlinked" style="background: transparent; border: 0px; line-height: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">Cr.PC</span> be served on the<br style="line-height: inherit;" />accused within two weeks from the date of institution of the case, which<br style="line-height: inherit;" />may be extended by the Superintendent of Police of the District for the<br style="line-height: inherit;" />reasons to be recorded in writing;</div>
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Failure to comply with the directions aforesaid shall apart from rendering<br style="line-height: inherit;" />the police officers concerned liable for departmental action, they shall<br style="line-height: inherit;" />also be liable to be punished for contempt of court to be instituted before<br style="line-height: inherit;" />High Court having territorial jurisdiction.</div>
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Authorising detention without recording reasons as aforesaid by the<br style="line-height: inherit;" />judicial Magistrate concerned shall be liable for departmental action by<br style="line-height: inherit;" />the appropriate High Court.</div>
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We hasten to add that the directions aforesaid shall not only apply to the<br style="line-height: inherit;" />cases under Section 498-A of the I.P.C. or Section 4 of the Dowry<br style="line-height: inherit;" />Prohibition Act, the case in hand, but also such cases where offence is<br style="line-height: inherit;" />punishable with imprisonment for a term which may be less than seven years<br style="line-height: inherit;" />or which may extend to seven years; whether with or without fine.</div>
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We direct that a copy of this judgment be forwarded to the Chief<br style="line-height: inherit;" />Secretaries as also the Director Generals of Police of all the State<br style="line-height: inherit;" />Governments and the Union Territories and the Registrar General of all the<br style="line-height: inherit;" />High Courts for onward transmission and ensuring its compliance.</div>
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By order dated 31st of October, 2013, this Court had granted<br style="line-height: inherit;" />provisional bail to the appellant on certain conditions. We make this order<br style="line-height: inherit;" />absolute.</div>
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In the result, we allow this appeal, making our aforesaid order dated 31st<br style="line-height: inherit;" />October, 2013 absolute; with the directions aforesaid.</div>
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………………………………………………………………J</div>
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(CHANDRAMAULI KR. PRASAD)</div>
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………………………………………………………………J</div>
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(PINAKI CHANDRA GHOSE)</div>
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V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-8909360529623817246.post-1634538179425107522012-11-18T21:18:00.000-08:002012-12-15T01:56:42.118-08:00Family Members of Husband should not be Implicated.<div dir="ltr" style="text-align: left;" trbidi="on">
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<b><span style="background-color: white; color: #222222; font-family: arial, sans-serif; font-size: x-small; line-height: 16px;">Family members of a man should </span><em style="background-color: white; font-family: arial, sans-serif; font-size: small; font-style: normal; line-height: 16px;">not</em><span style="background-color: white; color: #222222; font-family: arial, sans-serif; font-size: x-small; line-height: 16px;"> be implicated in a dowry Cases</span></b><br />
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<div style="background: white; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">IN THE SUPREME COURT OF INDIA<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">CRIMINAL
APPELLATE JURISDICTION<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">CRIMINAL
APPEAL NO. 1674 OF 2012<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">(Arising
out of SLP (Crl.) No. 10547/2010)<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">Geeta
Mehrotra &amp; Anr. ..Appellants<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">Versus<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">State
of U.P. &amp; Anr. . Respondents<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">J U D
G M E N T<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">GYAN
SUDHA MISRA, J.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">15.
Under the facts and circumstance of similar nature in the case of<span class="apple-converted-space"> </span><a href="http://indiankanoon.org/doc/1084013/"><span style="color: #1100cc;">Ramesh
vs. State of Tamil Nadu</span></a><span class="apple-converted-space"> </span>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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">20.
It would be relevant at this stage to take note of an apt observation of this
Court recorded in the matter of<span class="apple-converted-space"> </span><a href="http://indiankanoon.org/doc/488394/"><span style="color: #1100cc;">G.V. Rao
vs. L.H.V. Prasad &</span></a>amp; 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:<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">“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.”<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">The
view taken by the judges in this matter was that the courts would not encourage
such disputes.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">21.
In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi
&amp; Ors. vs. State of Haryana &amp; 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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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<span class="apple-converted-space"> </span><a href="http://indiankanoon.org/doc/1084013/"><span style="color: #1100cc;">Ramesh
vs. State of Tamil Nadu</span></a><span class="apple-converted-space"> </span>(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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">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.<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">……………………………J<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">(T.S.
Thakur)<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">……………………………J<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">(Gyan
Sudha Misra)<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">New
Delhi,<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">October
17, 2012<o:p></o:p></span></div>
<div style="background-color: white; background-position: initial initial; background-repeat: initial initial; line-height: 18.25pt; text-align: justify;">
<span style="font-family: Georgia, serif;">-----------------------<o:p></o:p></span></div>
<div class="MsoNormal">
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</div>
V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-8909360529623817246.post-86385508794045162292011-05-29T08:53:00.000-07:002012-10-23T21:17:24.866-07:00498a IPC is Legal Terrorism in India498a IPC is a Legal Terrorism say supreme Court of India:<br /><br /><br /><br />In The Supreme court of India<br /><br />Original Jurisdiction<br /><br />Writ Petition no. 141 of 2005<br /><br />Sushil Kumar Sharma ... Petitioner<br /><br />Versus<br /><br />Union Of India & Ors. ... Respondents<br /><br />J U D G E M E N T<br /><br />ARIJIT PASAYAT. J.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />Section 498A appears in chapter XXA of IPC.<br /><br />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.<br /><br />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.<br /><br />Section 498A reads as follows:<br /><br />"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.<br /><br /> <br /><br />Explanation – For the purpose of this section ‘cruelty’ means –<br /><br /> <br /><br />(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<br /><br /> <br /><br />(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."<br /><br /> <br /><br />Section 113-B reads as follows:-<br /><br /> <br /><br />"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.<br /><br /> <br /><br />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)."<br /><br />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.<br /><br /> <br /><br />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.<br /><br /> <br /><br />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.<br /><br /> <br /><br />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}.<br /><br />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.<br /><br /> <br /><br />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.<br /><br /> <br /><br />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.<br /><br /> <br /><br />"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)<br /><br /> <br /><br />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.<br /><br /> <br /><br />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:<br /><br />"Heard learned counsel for the petitioner.<br /><br />Delay condoned.<br /><br />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.<br /><br />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."<br /><br />Above being the position we find no substance in the plea that section 498A has no legal or constitutional foundation.<br /><br /> <br /><br />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.<br /><br /> <br /><br /> <br /><br />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.<br /><br />The writ petition is accordingly disposed of.<br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br />.......................J<br /><br />(ARIJIT PASAYAT) .<br /><br /> <br /><br />.......................J<br /><br />(H. K. SEMA) .<br /><br /> <br /><br />New Delhi<br /><br />July 19. 2005<br /><br /><br />By :www.divorce-lawyers-india.comV.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-8909360529623817246.post-48100356911792091862011-05-04T22:22:00.000-07:002012-10-23T22:50:30.968-07:00Bail under 498a/406 IPC<strong>Anticipatory Bail/Bail in 498a/406/IPC
<br />
<br />"There was no basis for making the allegations. The appellant No.1 had left for USA after about six months of the marriage. Long thereafter on 6/2/2000, the complaint was filed. No explanation for the delayed lodging of the complaint was offered.
<br />
<br />
<br />
<br />
<br />
<br />
<br />IN THE SUPREME COURT OF INDIA
<br />CRIMINAL APPELLATE JURISDICTION
<br />CRIMINAL APPEAL NO. 773 OF 2003
<br />Sundar Babu & Ors. ...Appellant(s)
<br />Versus
<br />State of Tamil Nadu ...Respondent(s)
<br />JUDGMENT
<br />Dr. ARIJIT PASAYAT, J.
<br />Challenge in this appeal is to the order passed by the learned single Judge of the Madras High Court rejecting the petition filed under Sec.482 of the Code of Criminal Procedure, 1973 (in short the `Code').
<br />Background facts in short are as follows:
<br />Sukanya (hereinafter referred to as `the complainant') was married with Sunder Babu-appellant No.1. Appellant No. 2-Mr. Venugopal and Mrs.Ramathilagam appellant No.3 are the parents of Sunder Babu. A.4-Rajinishree is his sister and Andalammal is his maternal grandmother. The marriage took place on 25/11/1998. The appellant No.1 left for USA on 1/7/1999. The complaint was filed on 6/2/2000 alleging commission of offence punishable under Sec.498A of the Indian Penal Code, 1860 (in short the `IPC') and Sec.4 of the Dowry Prohibition Act, 1961 (in short `D.P. Act').
<br />The complaint was treated as First Information Report and investigation was undertaken. On completion of investigation charge-sheet was filed on 8/6/2000. A divorce petition was filed by the complainant, which appears to have been granted ex parte on 12/7/2001. According to the appellants, complainant - Sukanya has remarried on 24/8/2002. It was a stand of the appellant that the complaint filed was nothing but an abuse of the process of law. The allegations were unfounded. There was no basis for making the allegations. The appellant No.1 had left for USA after about six months of the marriage. Long thereafter on 6/2/2000, the complaint was filed. No explanation for the delayed lodging of the complaint was offered. In essence, it was submitted that the continuance of the proceedings will be an abuse of the process of law. The prosecuting agency before the High Court contested the petition filed under Sec.482 Cr.P.C. taking the stand that a bare perusal of the complaint discloses commission of alleged offences and therefore it is not a case, which needed to be allowed. The High Court accepted the stand of the respondent-State and dismissed the application.
<br />In support of the appeal, learned counsel for the appellant submitted that the factual scenario indicated above and even a cursory glance of the complaint petition shows that the same was nothing but an attempt to falsely implicate the accused persons. Learned counsel for the respondent State supported the judgment.
<br />Though the scope for interference while exercising jurisdiction under Sec.482 Cr.P.C. is limited, but it can be made in cases as spelt out in the case of Bhajan Lal. The illustrative examples laid down therein are as follows:
<br />1 Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
<br />2 Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Sec.156(1) of the Code except under an order of a Magistrate within the purview of Sec.155(2) of the Code.
<br />3 Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
<br />4 Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec. 155 (2) of the Code.
<br />5 Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
<br />6 Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
<br />7 Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
<br />Even a cursory perusal of the complaint shows that the case at hand falls within the category (7) of the illustrative parameters highlighted in Bhajan Lal's case (supra).
<br />The parameters for exercise of power under Sec.482 have been laid down by this Court in several cases.
<br />The Section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances, under which the inherent jurisdiction may be exercised, namely,
<br />(i) to give effect to an order under the Code,
<br />(ii) to prevent abuse of the process of court, and
<br />(iii) to otherwise secure the ends of justice.
<br />It is neither possible nor desirable to lay down any inflexible rule, which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law, which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine, which finds expression in the section, which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent
<br />in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action, which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.
<br />As noted above, the powers possessed by the High Court under Sec.482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H.S. Chowdhary (1992 (4) SCC 305), Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC1 ) and Minu Kumari v. State of Bihar (2006 (4) SCC 359). (See (2008) 11 SCALE 20)
<br />Consequently, the appeal deserves to be allowed. The proceedings in Criminal Petition No. C.C.No. 385/2000 pending before the Judicial Magistrate, Palladam, are quashed.
<br />The appeal is allowed.
<br />J. (Dr. ARIJIT PASAYAT)
<br />J. (LOKESHWAR SINGH PANTA)
<br />J. (P. SATHASIVAM)
<br />New Delhi,
<br />February 19, 2009. </strong>
<br /></strong><strong></strong>
<br /><strong></strong>
<br />
<br />V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com1tag:blogger.com,1999:blog-8909360529623817246.post-90887261787141960052011-04-19T20:40:00.000-07:002012-10-23T22:52:07.835-07:00Quashing of FIR u/s 498A/406/34 IPC<span style="font-weight: bold;">Quashing Of FIR u/s 498a/406/34 ipc: Supreme Court of India</span><br /><br /><br /><br />Thought of Judgment<!--[if gte mso 9]><xml> <w:worddocument> <w:view>Normal</w:View> <w:zoom>0</w:Zoom> <w:punctuationkerning/> <w:validateagainstschemas/> <w:saveifxmlinvalid>false</w:SaveIfXMLInvalid> <w:ignoremixedcontent>false</w:IgnoreMixedContent> <w:alwaysshowplaceholdertext>false</w:AlwaysShowPlaceholderText> <w:compatibility> <w:breakwrappedtables/> <w:snaptogridincell/> <w:wraptextwithpunct/> <w:useasianbreakrules/> <w:dontgrowautofit/> </w:Compatibility> <w:browserlevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--><!--[if gte mso 9]><xml> <w:latentstyles deflockedstate="false" latentstylecount="156"> </w:LatentStyles> </xml><![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} </style> <![endif]--><span style=";font-family:";font-size:12pt;" lang="EN" >.<span style="color:red;"> Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.</span></span><br /><br /><br /><!--[if gte mso 9]><xml> <w:worddocument> <w:view>Normal</w:View> <w:zoom>0</w:Zoom> <w:punctuationkerning/> <w:validateagainstschemas/> <w:saveifxmlinvalid>false</w:SaveIfXMLInvalid> <w:ignoremixedcontent>false</w:IgnoreMixedContent> <w:alwaysshowplaceholdertext>false</w:AlwaysShowPlaceholderText> <w:compatibility> <w:breakwrappedtables/> <w:snaptogridincell/> <w:wraptextwithpunct/> <w:useasianbreakrules/> <w:dontgrowautofit/> </w:Compatibility> <w:browserlevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--><!--[if gte mso 9]><xml> <w:latentstyles deflockedstate="false" latentstylecount="156"> </w:LatentStyles> </xml><![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} </style> <![endif]--><span style=";font-family:";font-size:12pt;" lang="EN" >It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.<br /><br /><br /></span><!--[if gte mso 9]><xml> <w:worddocument> <w:view>Normal</w:View> <w:zoom>0</w:Zoom> <w:punctuationkerning/> <w:validateagainstschemas/> <w:saveifxmlinvalid>false</w:SaveIfXMLInvalid> <w:ignoremixedcontent>false</w:IgnoreMixedContent> <w:alwaysshowplaceholdertext>false</w:AlwaysShowPlaceholderText> <w:compatibility> <w:breakwrappedtables/> <w:snaptogridincell/> <w:wraptextwithpunct/> <w:useasianbreakrules/> <w:dontgrowautofit/> </w:Compatibility> <w:browserlevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--><!--[if gte mso 9]><xml> <w:latentstyles deflockedstate="false" latentstylecount="156"> </w:LatentStyles> </xml><![endif]--><!--[if !mso]><object classid="clsid:38481807-CA0E-42D2-BF39-B33AF135CC4D" id="ieooui"></object> <style> st1\:*{behavior:url(#ieooui) } </style> <![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} </style> <![endif]--> <p class="MsoNormal"><span style="" lang="EN">Supreme Court of India</span></p> <p class="MsoNormal"><strong><span style="" lang="EN">Bench:</span></strong><span style="" lang="EN"> G Singhvi, A K Ganguly</span></p> <p><span style="" lang="EN">IN THE SUPREME COURT OF INDIA</span></p> <p><span style="" lang="EN">CRIMINAL APPELLATE JURISDICTION</span></p> <p><span style="" lang="EN">CRIMINAL APPEAL NO. 1512 OF 2010</span></p> <p><span style="" lang="EN">(Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another …Appellants Versus</span></p> <p><span style="" lang="EN">State of Jharkhand & Another ….Respondents JUDGMENT</span></p> <p><span style="" lang="EN">Dalveer Bhandari, J.</span></p> <p><span style="" lang="EN">1. Leave granted.</span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">2. This appeal has been filed by Preeti Gupta the married sister-in-law and a permanent resident of Navasari, Surat, Gujarat with her husband and Gaurav Poddar, a permanent resident of Goregaon, Maharashtra, who is the unmarried brother-in-law of the complainant, Manisha Poddar, against the impugned judgment of the High Court of Jharkhand at Ranchi, Jharkhand dated 27.4.2009 passed in Criminal Miscellaneous Petition Nos.304 of 2009.</span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">3. Brief facts which are necessary to dispose of this appeal are recapitulated as under:</span></p> <p><span style="" lang="EN">The Complainant Manisha was married to Kamal Poddar at Kanpur on 10.12.2006. Immediately after the marriage, the complainant who is respondent no.2 in this appeal left for Mumbai along with her husband Kamal Poddar who was working with the Tata Consultancy Services (for short “TCS”) and was permanently residing at Mumbai. The complainant also joined the TCS at Mumbai on 23.12.2006. Respondent no.2 visited Ranchi to participate in “Gangaur” festival (an important Hindu festival widely celebrated in Northern India) on 16.3.2007. After staying there for a week, she returned to Mumbai on 24.03.2007.</span></p> <p><span style="" lang="EN">4. Respondent no.2, Manisha Poddar filed a complaint on 08.07.2007 before the Chief Judicial Magistrate, Ranchi under sections 498-A, 406, 341, 323 and 120-B of the Indian Penal Code read with sections 3 and 4 of the Dowry Prohibition Act against all immediate relations of her husband, namely, Pyarelal Poddar (father-in-law), Kamal Poddar (husband), Sushila Devi (mother-in-law), Gaurav Poddar (unmarried brother-in-law) and Preeti Gupta @ Preeti Agrawal (married sister-in-law). The complaint was transferred to the court of the Judicial Magistrate, Ranchi. Statements of Respondent no.2 and other witnesses were recorded and on 10.10.2008 the Judicial Magistrate took cognizance and passed the summoning order of the appellants. The appellants are aggrieved by the said summoning order.</span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">5. In the criminal complaint, it was alleged that a luxury car was demanded by all the accused named in the complaint. It was also alleged that respondent no.2 was physically assaulted at Mumbai. According to the said allegations of the complainant, it appears that the alleged incidents had taken place either at Kanpur or Mumbai. According to the averments of the complaint, except for the demand of the luxury car no incident of harassment took place at Ranchi.</span></p> <p><span style="" lang="EN">6. According to the appellants, there was no specific allegation against both the appellants in the complaint. Appellant no.1 had been permanently residing with her husband at Navasari, Surat (Gujarat) for the last more than seven years. She had never visited Mumbai during the year 2007 and never stayed with respondent no.2 or her husband. Similarly, appellant no.2, unmarried brother-in-law of the complainant has also been permanently residing at Goregaon, Maharashtra.</span></p> <p><span style="" lang="EN">7. It was asserted that there is no specific allegation in the entire complaint against both the appellants. The statements of prosecution witnesses PW1 to PW4 were also recorded along with the statement of the complainant. None of the prosecution witnesses had stated anything against the appellants. These appellants had very clearly stated in this appeal that they had never visited Ranchi. The appellants also stated that they had never interfered with the internal affairs of the complainant and her husband. According to them, there was no question of any interference because the appellants had been living in different cities for a number of years.</span></p> <p><span style="" lang="EN">8. It was clearly alleged by the appellants that they had been falsely implicated in this case. It was further stated that the complaint against the appellants was totally without any basis or foundation. The appellants also asserted that even if all the allegations incorporated in the complaint were taken to be true, even then no offense could be made out against them.</span></p> <p><span style="" lang="EN">9. The appellants had submitted that the High Court ought to have quashed this complaint as far as both the appellants are concerned because there were no specific allegations against the appellants and they ought not have been summoned. In the impugned judgment, while declining to exercise its inherent powers, the High Court observed as under:</span></p> <p><span style="" lang="EN">“In this context, I may again reiterate that the acts relating to demand or subjecting to cruelty, as per the complaint petition, have been committed at the place where the complainant was living with her husband. However, the complainant in her statement made under solemn affirmation has stated that when she came to Ranchi on the occasion of Holi, all the accused persons came and passed sarcastic remarks which in absence of actual wordings, according to the learned counsel appearing for the petitioner could never be presumed to be an act constituting offence under section 498A of the Indian Penal Code.”</span></p> <p><span style="" lang="EN">10. In this appeal, both the appellants specifically asserted that they had never visited Ranchi, therefore, the allegations that they made any sarcastic remarks to the complainant had no basis or foundation as far as the appellants are concerned.</span></p> <p><span style="" lang="EN">11. The complainant could not dispute that appellant no.1 was a permanent resident living with her husband at Navasari, Surat, Gujarat for the last more than seven years and the appellant no.2 was permanent resident of Goregaon, Maharashtra. They had never spent any time with respondent no.2.</span></p> <p><span style="" lang="EN">12. According to the appellants, they are not the residents of Ranchi and if they are compelled to attend the Ranchi Court repeatedly then that would lead to insurmountable harassment and inconvenience to the appellants as well as to the complainant.</span></p> <p><span style="" lang="EN">13. The complaint in this case under section 498-A IPC has led to several other cases. It is mentioned that a divorce petition has been filed by the husband of respondent no.2. Both respondent no.2 and her husband are highly qualified and are working with reputed organization like Tata Consultancy Service. If because of temperamental incompatibility they cannot live with each other then it is proper that they should jointly get a decree of divorce by mutual consent. Both respondent no.2 and her husband are in such age group that if proper efforts are made, their re- settlement may not be impossible.</span></p> <p><span style="" lang="EN">14. The main question which falls for consideration in this case is whether the High Court was justified in not exercising its inherent powers under section 482 of the Code of Criminal Procedure in the facts and circumstances of this case?</span></p> <p><span style="" lang="EN">15. This court in a number of cases has laid down the scope and ambit of courts’ powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice.</span></p> <p><span style="" lang="EN">16. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions [1964] AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [1977] AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court’s power to prevent such abuse is of great constitutional importance and should be jealously preserved.</span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">17. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court’s failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.</span></p> <p><span style="" lang="EN">18. This court had occasion to examine the legal position in a large number of cases. <a href="http://indiankanoon.org/doc/173865/">In R.P. Kapur v. State of Punjab AIR</a> 1960 SC 866, this court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:</span></p> <p><span style="" lang="EN">(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;</span></p> <p><span style="" lang="EN">(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;</span></p> <p><span style="" lang="EN">(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.</span></p> <p><span style="" lang="EN">19. This court in <a href="http://indiankanoon.org/doc/548497/">State of Karnataka v. L. Muniswamy &</a>amp; Others (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts.</span></p> <p><span style="" lang="EN">20. <a href="http://indiankanoon.org/doc/646292/">In Madhu Limaye v. The State of Maharashtra</a> (1977) 4 SCC 551, a three-Judge Bench of this court held as under:- “…..In case the impugned order clearly brings out a situation which is an abuse of the process of the court, or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. The present case would undoubtedly fall for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, that the invoking of the revisional power of the High Court is impermissible.”</span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">21. This court in Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in para 7 as under:</span></p> <p><span style="" lang="EN">“7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”</span></p> <p><span style="" lang="EN">22. In State of Haryana & Others v. Bhajan Lal & Others 1992 Supp. (1) SCC 335, this court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure (for short, Cr.P.C.) under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:</span></p> <p><span style="" lang="EN">“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.</span></p> <p><span style="" lang="EN">(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.</span></p> <p><span style="" lang="EN">(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.</span></p> <p><span style="" lang="EN">(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.</span></p> <p><span style="" lang="EN">(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.</span></p> <p><span style="" lang="EN">(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.</span></p> <p><span style="" lang="EN">(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”</span></p> <p><span style="" lang="EN">23. In G. Sagar Suri & Another v. State of UP & Others (2000) 2 SCC 636, this court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil nature.</span></p> <p><span style="" lang="EN">24. This court in Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:-</span></p> <p><span style="" lang="EN">“It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”</span></p> <p><span style="" lang="EN">25. A three-Judge Bench (of which one of us, Bhandari, J. was the author of the judgment) of this Court in <a href="http://indiankanoon.org/doc/693610/">Inder Mohan Goswami and Another v. State of Uttaranchal &</a>amp; Others (2007) 12 SCC 1 comprehensively examined the legal position. The court came to a definite conclusion and the relevant observations of the court are reproduced in para 24 of the said judgment as under:-</span></p> <p><span style="" lang="EN">“Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.”</span></p> <p><span style="" lang="EN">26. We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.</span></p> <p><span style="" lang="EN">27. Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband.<span style="color:red;"> Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.</span></span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.</span></p> <p><span style="" lang="EN">29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:-</span></p> <p><span style="" lang="EN">“498-A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.–For the purposes of this section, `cruelty’ means:-</span></p> <p><span style="" lang="EN">(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or</span></p> <p><span style="" lang="EN">(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”</span></p> <p><span style="" lang="EN">30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.</span></p> <p><span style="" lang="EN">31. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.</span></p> <p><span style="" lang="EN">32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.</span></p> <p><span style="" lang="EN">33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.</span></p> <p><span style="" lang="EN"> </span></p> <p><span style="" lang="EN">34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.</span></p> <p><span style="" lang="EN">35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. <span style="color:red;">It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.</span></span></p> <p><span style="" lang="EN">36. When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants. As a result, the impugned judgment of the High Court is set aside. Consequently, this appeal is allowed.</span></p> <p><span style="" lang="EN">……………………………J.</span></p> <p><span style="" lang="EN">(Dalveer Bhandari)</span></p> <p><span style="" lang="EN">……………………………J.</span></p> <p><span style="" lang="EN">(K.S. Radhakrishnan)</span></p> <p><span style="" lang="EN">New Delhi</span><span style="" lang="EN">;</span></p> <p><span style="" lang="EN">August 13, 2010</span></p> <p class="MsoNormal"> </p><p class="MsoNormal">www.divorce-lawyers-india.com</p><p class="MsoNormal">Email: info@divorce-lawyers-india.com</p><p class="MsoNormal">Phone : +91-11-22022079<br /></p> <span style=";font-family:";font-size:12pt;" lang="EN" ><br /><br /><br /><br /><br /><br /><br /><br /><br /></span>V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-8909360529623817246.post-58406176605951795602010-08-17T21:38:00.001-07:002012-03-23T11:36:45.109-07:00misuse of section 498A of indian penal code(cruelty against women)<strong>Misuse of section 498A IPC<br /></strong>498A of indian penal code(amend dowry law to stop missues )<br /><br />Amend dowry law to stop its missues,say supremecourt of India.<br />The Hon”ble supremecourt of india has painly told the goverment to take a relook at the anti-dowry law-section 498A of indian penal code-the hon”ble court said that it has been misused by women to lodge false or ex-aggerated complaints against husbands and their relatives accusing them of cruel behaviour.<br />such is the level of exaggeration of cruel behaviour on the part of husbands and their relatives that “to find out of truth is a Herculean task in a majority of these complaints”<br />The bench comprising Justice dalveer Bhandari and K.S.Radhakrishnan.<br />The bench further said concerned at the rise in complaints under section 498A ipc .The bench further said “we come across a large number of such complaints which are not even bonafide and are filed with oblique motives.”<br />The Hon”ble court observed:-<br />1.large number of cases /complaints filed under the anti-dowry law are either fals or exaggerated .<br />2.At times,even after conclusion of the criminal trial,its is difficult to ascertain the truth,<br />3.Ask govt.to heed ground realties and make suitable changes to the law.<br />Leges Divorce Juris<br /><a href="http://divorce-lawyers-india.com/">http://divorce-lawyers-india.com</a><br /><a href="mailto:india.divorce.lawyers@gmail.com">india.divorce.lawyers@gmail.com</a><br />91-011-22022079V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0