Indian Penal Code, 1860 - Section 498A -
Directions pertaining to Family Welfare Committee and
its constitution by the District Legal Services Authority and the power
conferred on the Committee is impermissible.
Indian Penal Code, 1860 - Section 498A - Director
General of Police of each State to ensure that investigating officers who are
in charge of investigation of cases of offences under Section 498-A IPC should
be imparted rigorous training with regard to the principles relating to arrest.
Indian Penal Code, 1860 - Section 498A - If a
settlement is arrived at, the parties can approach the High Court under Section
482 of the Code of Criminal Procedure and the High Court, keeping in view the
law laid down in Gian Singh, shall dispose of the same.
IN THE SUPREME COURT
OF INDIA
CIVIL ORIGINAL
JURISDICTION
(Dipak Misra, CJI) (A.M. Khanwilkar, J)
(Dr. D.Y. Chandrachud, J)
September 14 , 2018.
WRIT PETITION (CIVIL)
NO. 73 OF 2015
Social Action Forum
for Manav Adhikar and another...Petitioner(s)
VERSUS
Union of India Ministry
of Law and Justice and others …Respondent(s)
WITH
CRIMINAL APPEAL NO.
1265 OF 2017
WRIT PETITION
(CRIMINAL) NO. 156 of 2017
J U D G M E N T
Dipak Misra, CJI
Law, especially the criminal law,
intends to control, if not altogether remove, the malady that gets into the
spine of the society and gradually corrodes the marrows of the vertebrae of a
large section of the society. A situation arises and the legislature,
expressing its concern and responsibility, adds a new penal provision with the
intention to achieve the requisite result. When a sensitive legal provision is
brought into the statute book, the victims of the crime feel adequately safe,
and if the said provision pertains to matrimonial sphere, both the parties,
namely, wife and husband or any one from the side of the husband is booked for
the offence and both the sides play the victim card. The accused persons, while
asserting as victims, exposit grave concern and the situation of harassment is
built with enormous anxiety and accentuated vigour. It is propounded in a court
of law that the penal provision is abused to an unimaginable extent, for in a
cruel, ruthless and totally revengeful manner, the young, old and relatives
residing at distant places having no involvement with the incident, if any, are
roped in. Thus, the abuse of the penal provision has vertically risen. When the
implementation of law is abused by the law enforcing agency, the legislature
introduces a protective provision as regards arrest. Needless to say, the
courts have ample power to grant pre-arrest bail or popularly called
anticipatory bail and even to quash the criminal proceeding totally to
stabilize the lawful balance because no court of law remotely conceives of a
war between the two sexes. The courts remain constantly alive to the situation
that though no war takes place, yet neither anger nor vendetta of the aggrieved
section should take an advantage of the legal provision and harass the other
side with influence or espousing the principle of sympathy. The role of the law
enforcing agency or the prosecuting agency is sometimes coloured with
superlative empathy being totally oblivious of the sensation to make maladroit
efforts to compete with the game of super sensitivity. Such a situation brings
in a social disaster that has the potentiality to vertically divide the
society. The sense of sensitivity and the study of social phenomenon are
required to be understood with objectivity. In such a situation, it is
obligatory on the part of the legislature to bring in protective adjective law
and the duty of the constitutional courts to perceive and scrutinize the
protective measure so that the social menace is curbed. We are, in the instant
matters, focussing on Section 498-A of the Indian Penal Code, 1860 (for short, „the
IPC‟).
2. Section 498-A was
brought into the statute book in the year 1983. The objects and reasons for
introducing Section 498-A IPC can be gathered from the Statement of Objects and
Reasons of Criminal Law (Second Amendment) Act of 1983 and read as under :-
"The increasing number of Dowry
Deaths is a matter of serious concern. The extent of evil has been commented
upon by the Joint Committee of the Houses constituted to examine the working of
Dowry Prohibition Act, 1961. Cases of cruelty by the husband and the relatives
of the husband which culminate in suicide by, or murder of the hapless woman
concerned, constitute only a small fraction of the cases involving such
cruelty. It is, therefore proposed to amend the Indian Penal Code, Code of
Criminal Procedure and the Indian Evidence Act suitably to deal effectively not
only with cases of Dowry Death but also cruelty to married woman by their in
laws.
2. The following are
the changes that are proposed to be made:-
(i) The Indian Penal Code is proposed
to be amended to make cruelty to a woman by her husband or any relative of her
husband punishable with an imprisonment for a term which may extend to three
years and also with fine. Willful conduct of such a nature by the husband or
any other relative of the husband as is likely to drive the woman to commit
suicide or cause grave physical or mental injury to her, and harassment of
woman by her husband or by any relative of her husband with a view to coercing
her or any of her relatives to meet any unlawful demand for property would be
punishable as cruelty, the offence will cognizable if information relating to
the commission of the offence is given to the officer in charge of a Police
Station by the victim of the offence or a relative of the victim of the offence
or, in the absence of any such relative, by any public servant authorized in
this behalf by the State Government. It is also being provided that no court
shall take cognizance of the offence except upon a Police Report or complaint
made by the victim of the offence or by her father, mother, brother, sister or
by her father's or mother's brother or sister or with the leave of the court by
any other person related to her by blood, marriage or adoption (vide Clauses
2, 5 and 6 of the Bill.)
(ii) Provision is being made for
inquest by Executive Magistrates and for postmortem in all cases where a woman
has, within seven years of her marriage, committed suicide or died in
circumstances raising a reasonable suspicion that some other person has
committed an offence. Post-mortem is also being provided for in all cases where
a married woman has died within seven years of her marriage and a relative of
such woman has made a request in this behalf (vide Clauses 3 and 4 of
the Bill)
(iii)The Indian evidence Act, 1872 is
being amended to provide that where a woman has committed suicide within a
period of seven years from date of her marriage and it is shown that her
husband or any relative of her husband and subjected her to cruelty, the court
may presume that such suicide had been abetted by her husband or by such
relative of her husband (vide Clause 7 of the Bill) 3. The Bill seeks to
achieve the above objectives."
3. Regarding the
constitutionality of Section 498-A IPC, in Sushil Kumar Sharma v. Union
of India and others, (2005) 6 SCC
281 : AIR 2005 SC 3100 it
was held by the Supreme Court:-
"Provision of S. 498A of Penal
Code is not unconstitutional and ultra vires. Mere possibility of abuse of a
provision of law does not per se invalidate a legislation. Hence plea that S.
498A has no legal or constitutional foundation is not tenable. The object of
the provisions is prevention of the dowry menace. But many instances have come
to light where the complaints are not bona fide and have been filed with
oblique motive. In such cases acquittal of the accused does not in all cases
wipe out the ignominy 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 abuse of the well-intentioned provision.
Merely because the provision is constitutional and intra vires, does not give a
licence to unscrupulous persons to wreck personal vendetta or unleash
harassment. It may, therefore, become necessary for the legislature to find out
ways how the makers of frivolous complaints or allegations can be appropriately
dealt with. Till then the Courts have to take care of the situation within the
existing frame-work."
4. In B.S. Joshi
and others v. State of Haryana and another, (2003) 4 SCC 675 : AIR 2003 SC 1386 the Court observed:-
"There is no doubt that the
object of introducing Chapter XX-A containing Section 498A in the Indian Penal
Code was to prevent the torture to a woman by her husband or by relatives of
her husband. Section 498A was added with a view to punishing a husband and his
relatives who harass or torture the wife to coerce her or her relatives to
satisfy unlawful demands of dowry. The hyper-technical view would be counter
productive and would act against interests of women and against the object for
which this provision was added. There is eveiy likelihood that non-exercise of
inherent power to quash the proceedings to meet the ends of justice would
prevent women from settling earlier. That is not the object of Chapter XXA of
Indian Penal Code."
5. In Brij Lal v.
Prem Chand and another, (1989) 2
SCR 612 this
Court ruled thus:-
“It would not be out of place for us
to refer here to the addition of Sections 113-A and 113-B to the Indian
Evidence Act and Sections 498-A and 304-B to the Indian Penal Code by
subsequent amendments. Section 113-A Evidence Act and 498-A Indian Penal Code
have been introduced in the respective enactments by the Criminal Law (Second
amendment) Act, 1983 (Act 46 of 1983) and Section 113-B of the Evidence Act and
304-B Indian Penal Code have been introduced by Act No. 43 of 1986. The
degradation of society due to the pernicious system of dowry and the
unconscionable demands made by greedy and unscrupulous husbands and their
parents and relatives resulting in an alarming number of suicidal and dowry
deaths by women has shocked the Legislative conscience to such an extent that
the Legislature has deemed it necessary to provide additional provisions of
law, procedural as well as substantive, to combat the evil and has consequently
introduced Sections 113-A and 113-B in the Indian Evidence Act and Sections
498-A and 304-B in the Indian Penal Code. By reason of Section 113-A, the
Courts can presume that the commission of suicide by a woman has been abetted
by her husband or relation if two factors are present viz. (1) that the woman had
committed suicide within a period of seven years from her marriage, and (2)
that the husband or relation had subjected her to cruelty. We are referring to
these provisions only to show that the Legislature has realised the need to
provide for additional provisions in the Indian Penal Code and the Indian
Evidence Act to check the growing menace of dowry deaths...”
6. Presently, to the
factual score. The instant Petitions have been preferred under Article 32 of
the Constitution of India seeking directions to the respondents to create an
enabling environment for married women subjected to cruelty to make informed
choices and to create a uniform system of monitoring and systematically
reviewing incidents of violence against women under Section 498-A IPC including
their prevention, investigation, prosecution and rehabilitation of the victims
and their children at the Central, State and District levels. That apart,
prayer has been made to issue a writ of mandamus to the respondents for a
uniform policy of registration of FIR, arrest and bail in cases of Section
498-A IPC in consonance with the law of the land, i.e., to immediately register
FIR on complaint of cruelty and harassment by married women as per the IPC.
7. It has been averred
by the petitioners that hundreds of women are being subjected to horrific acts
of violence often in the guise of domestic abuse or to extract more money from
the girl's natal family due to absence of any uniform system of monitoring and
systematic review of incidents of violence against married women which has led
to dilution of the legislative intent behind Section 498-A IPC. And, in the
wake of ever increasing crimes leading to unnatural deaths of women in marital
homes, any dilution of Section 498-A IPC is not warranted.
8. It has been
contended that Section 498-A IPC, since its introduction, has increasingly been
vilified and associated with the perception that it is misused by women who
frequently use it as a weapon against their in-laws. As per the petitioners,
though there is general complaint that Section 498-A IPC is subject to gross
misuse, yet there is no concrete data to indicate how frequently the provision
has been misused. Further, the Court, by whittling down the stringency of
Section 498-A IPC, is proceeding on an erroneous premise that there is misuse
of the said provision, whereas in fact misuse by itself cannot be a ground to
repeal a penal provision or take away its teeth.
9. It is set forth in
the petition that Section 498-A IPC has been specifically enacted to protect
the vulnerable sections of the society who have been victims of cruelty and
harassment. The social purpose behind Section 498-A IPC is being lost as the
rigour of the said provision has been diluted and the offence has practically
been made bailable by reason of various qualifications and restrictions
prescribed by various decisions of this Court including Rajesh Sharma and
others v. State of U.P. and another, AIR 2017 SC 3869 : 2017 (8) SCALE 313 a recent pronouncement.
10. It has also been
submitted by the petitioners that the police is hesitant to arrest the accused
on complaint of married women and the same inaction is justified by quoting
various judgments, despite the fact that Section 498-A IPC discloses a
non-bailable offence and sufficient checks and balances have been provided in
the law itself under Section 41 CrPC. To prevent arbitrary and necessary arrest,
the statute very clearly states that the police shall record reasons for
effecting arrest as well as for not arresting.
11. The petitioners have
also asseverated that there is lack of monitoring mechanism to track cases
registered under Section 498-A IPC including systematic study of the reason of
low convictions and due to this absence, penal laws have not been able to
secure a safe married environment to women. This, as per the petitioners, has
also resulted in rise in cases under Section 498-A IPC because the deterrent
effect of the said provision is getting diluted. It is also the case of the
petitioners that investigation by the police of offence under Section 498-A IPC
is often unprofessional and callous and the investigating officers perceptibly
get influenced by both the parties which results in perpetrators escaping
conviction.
12. It is further
contended that in many cases under Section 498-A, IPC the Court has not
considered mental cruelty caused to the woman but has concentrated only on any
sign of physical cruelty due to which the courts do not look into a case if the
evidence does not show that the woman was physically harassed. This has led the
courts to brand the woman on many occasions as hyper-sensitive or of low
tolerance level.
13. It has been further
averred that the alleged abuse of the penal provision is mostly by
well-educated women who know that the offence is both cognizable and
non-bailable and impromptu works on the complaint of the woman by placing the
man behind the bars, but this cannot be a ground for denying the poor and
illiterate women the protection that is offered by Section 498-A IPC against
cruelty, rather there is a need to create awareness specifically in the rural
areas about the laws for protection of women and consequent available remedies
in case of breach.
14. It is also set forth
in the petition that despite the Dowry Prohibition Act, 1961 being passed, the
irony still survives perhaps with more oxygen, for the social evil of dowry is
on the increase and is openly practised with pride. It is put forth that women
today are still tortured and often the court, despite being the ultimate
saviour, does not come to the rescue of these women as a consequence of which an
atmosphere of ambivalence prevails and such societal ambivalence creates a
situation of war between two classes though in actuality the offence is
relatable to individuals. A sorry state of affairs is pronouncedly asserted.
15. On the aforesaid
bedrock, a prayer in Writ Petition (Civil) No. 73 of 2015 has been made to have
a uniform policy of registration of FIR, arrest and bail in cases of Section
498-A IPC. It is worthy to note here that during the pendency of this Writ
Petition, the judgment had been pronounced in Rajesh Sharma (supra).
The Court in Rajesh Sharma (supra) issued the following
guidelines:-
“19.i) (a) In every district one or
more Family Welfare Committees be constituted by the District Legal Services
Authorities preferably comprising of three members. The constitution and
working of such committees may be reviewed from time to time and at least once
in a year by the District and Sessions Judge of the district who is also the
Chairman of the District Legal Services Authority.
(b) The Committees may be constituted
out of para legal volunteers/social workers/retired persons/ wives of working
officers/other citizens who may be found suitable and willing.
(c) The Committee members will not be
called as witnesses.
(d) Every complaint under Section 498A
received by the police or the Magistrate be referred to and looked into by such
committee. Such committee may have interaction with the parties personally or
by means of telephone or any other mode of communication including electronic
communication.
(e) Report of such committee be given
to the Authority by whom the complaint is referred to it latest within one
month from the date of receipt of complaint.
(f) The committee may give its brief
report about the factual aspects and its opinion in the matter.
(g) Till report of the committee is
received, no arrest should normally be effected.
(h) The report may be then considered
by the Investigating Officer or the Magistrate on its own merit.
(i) Members of the committee may be
given such basic minimum training as may be considered necessary by the Legal
Services Authority from time to time.
(j) The Members of the committee may
be given such honorarium as may be considered viable.
(k) It will be open to the District
and Sessions Judge to utilize the cost fund wherever considered necessary and
proper.
ii) Complaints under Section 498A and
other connected offences may be investigated only by a designated Investigating
Officer of the area. Such designations may be made within one month from today.
Such designated officer may be required to undergo training for such duration
(not less than one week) as may be considered appropriate. The training may be
completed within four months from today;
iii) In cases where a settlement is
reached, it will be open to the District and Sessions Judge or any other senior
Judicial Officer nominated by him in the district to dispose of the proceedings
including closing of the criminal case if dispute primarily relates to
matrimonial discord;
iv) If a bail application is filed
with at least one clear day‟s notice to the Public Prosecutor/complainant, the
same may be decided as far as possible on the same day. Recovery of disputed
dowry items may not by itself be a ground for denial of bail if maintenance or
other rights of wife/minor children can otherwise be protected. Needless to say
that in dealing with bail matters, individual roles, prima facie truth of the
allegations, requirement of further arrest/ custody and interest of justice
must be carefully weighed;
v) In respect of persons ordinarily
residing out of India impounding of passports or issuance of Red Corner Notice
should not be a routine;
vi) It will be open to the District
Judge or a designated senior judicial officer nominated by the District Judge
to club all connected cases between the parties arising out of matrimonial
disputes so that a holistic view is taken by the Court to whom all such cases
are entrusted; and
vii) Personal appearance of all family
members and particularly outstation members may not be required and the trial
court ought to grant exemption from personal appearance or permit appearance by
video conferencing without adversely affecting progress of the trial.
viii) These directions will not apply
to the offences involving tangible physical injuries or death.”
16. In the meanwhile,
Writ Petition (Criminal) No. 156 of 2017 had been filed. A prayer had been made
in the said Writ Petition to implement the suggestion that out of three
members, at least two members should be appointed in the Family Welfare
Committee. When this Writ Petition was listed on 13.10.2017, the following
order came to be passed:-
“Mr. Alok Singh, learned counsel for
the petitioner though has a different set of prayers in the writ petition, it
fundamentally requires this Court to implement directions rendered in Criminal
Appeal No.1265 of 2017 [Rajesh Sharma vs. State of U.P. and Another].
Additionally, learned counsel would submit that certain lady members, certain
organizations and welfare committees are to be involved.
At this stage, we are obligated to
state that we are not in agreement with the decision rendered in Rajesh Sharma
(supra) because we are disposed to think that it really curtails the rights of
the women who are harassed under Section 498A of the Indian Penal Code. That
apart, prima facie, we perceive that the guidelines may be in the legislative
sphere.
Issue notice to the respondent Nos.1
to 3. No notice need be issued to the respondent No.4. Even if the petitioner
does not take steps, the Registry shall see to it that the respondents are
served. Ms. Indu Malhotra and Mr. V. Shekhar, learned senior counsel are
appointed as Amicus Curiae to assist the Court in the matter.
List the matter on 29th November,
2017.”
17. Mr. V. Shekhar,
learned senior counsel, was appointed as Amicus Curiae to assist the Court in
the matter.
18. It was submitted by
the learned Amicus Curiae that the decision in Rajesh Sharma (supra)
requires reconsideration, for the said judgment confers powers on the Family
Welfare Committee to be constituted by the District Legal Services Authority
which is an extra-judicial committee of para legal volunteers/social
workers/retired persons/wives of working officers/other citizens to look into
the criminal complaints under Sections 498-A IPC in the first instance and
further, there has been a direction that till such time a report of the
committee is received, no arrest should be made. It is urged that the
constitution of FWC to look into the criminal complaints under Section 498-A
IPC is contrary to the procedure prescribed under the Code of Criminal
Procedure.
19. It is further
propounded that the directions in certain paragraphs of the judgment in Rajesh
Sharma (supra) entrusting the power to dispose of the proceedings under
Section 498-A IPC by the District and Sessions Judge or any other senior
judicial officer nominated by him in the district in cases where there is
settlement, are impermissible, for an offence under Section 498-A is not
compoundable and hence, such a power could not have been conferred on any
District and Sessions Judge or any senior judicial officer nominated by him.
Elaborating the said submission, it is canvassed that the High Court is
empowered under Section 482 CrPC to quash the proceeding if there is a
settlement between the parties. Learned Amicus Curiae further submitted that
the recovery of disputed dowry items may not itself be a ground for denial of
bail which is the discretion of the court to decide the application of grant of
bail in the facts and circumstances of the case and thus, this tantamounts to a
direction which is not warranted in law. Criticism has been advanced with
regard to the direction in paragraph 19(v) which states that for persons who
are ordinarily residing out of India, impounding of passports or issuance of
Red Corner Notice should not be done in a routine manner. It is urged that if
an accused does not join the investigation relating to matrimonial/family
offence, the competent court can issue appropriate directions to the concerned
authorities to issue Red Corner Notice which will depend on the facts of the
case.
20. Learned Amicus
Curiae has further put forth that dispensation of personal appearance of
outstation family members is unwarranted, for in a criminal proceeding, the
competent court which deals with application of exemption should be allowed to
exercise the judicial discretion and there should not have been a general
direction by this Court. Certain suggestions have been given by the learned
Amicus Curiae which we shall refer to at the relevant stage.
21. To appreciate the
controversy, it is necessary to understand the scope of Section 498-A of IPC.
It reads thus:-
“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 purpose of this section, “cruelty”
means—
(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
(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.”
22. The said offence is
a cognizable and non-bailable offence. This Court in Arnesh Kumar v.
State of Bihar and another, (2014)
8 SCC 273
has
observed that the said offence which is a cognizable and non-bailable offence
has lent it a dubious place of pride amongst the provisions that are used as
weapons rather than shield by disgruntled wives. The simplest way to harass is
to get the husband and his relatives arrested under this provision. The Court
has taken note of the statistics under “Crime in India 2012 Statistics”
published by the National Crime Records Bureau, Ministry of Home Affairs which
shows arrest of 1,97,762 persons all over India during the year 2012 for the
offence under Section 498-A. Showing concern, the Court held that arrest brings
humiliation, curtails freedom and casts scars forever and the police had not
learnt its lesson which is implicit and embodied in the Criminal Procedure
Code. Commenting on the police, the Court said:-
“It has not come out of its colonial
image despite six decades of Independence, it is largely considered as a tool
of harassment, oppression and surely not considered a friend of public. The
need for caution in exercising the drastic power of arrest has been emphasised
time and again by the courts but has not yielded desired result. Power to
arrest greatly contributes to its arrogance so also the failure of the
Magistracy to check it. Not only this, the power of arrest is one of the
lucrative sources of police corruption. The attitude to arrest first and then
proceed with the rest is despicable. It has become a handy tool to the police
officers who lack sensitivity or act with oblique motive.”
23. The Court,
thereafter, has drawn a distinction between the power to arrest and
justification for the exercise of it and analysed Section 41 CrPC. Section 41
stipulates when police may arrest without warrant. The said provision reads as
follows:-
“41. When police may arrest without
warrant.—(1) Any police officer may without an order from a Magistrate and
without a warrant, arrest any person—
(a) who commits, in the presence of a
police officer, a cognizable offence;
(b) against whom a reasonable
complaint has been made, or credible information has been received, or a
reasonable suspicion exists that he has committed a cognizable offence
punishable with imprisonment for a term which may be less than seven years or
which may extend to seven years whether with or without fine, if the following
conditions are satisfied, namely:--
(i) the police officer has reason to
believe on the basis of such complaint, information, or suspicion that such
person has committed the said offence;
(ii) the police officer is satisfied
that such arrest is necessary--
(a) to prevent such person from
committing any further offence; or
(b) for proper investigation of the
offence; or
(c) to prevent such person from
causing the evidence of the offence to disappear or tampering with such
evidence in any manner; or
(d) to prevent such person from making
any inducement, threat or promise to any person acquainted with the facts of
the case so as to dissuade him from disclosing such facts to the Court or to
the police officer; or
(e) as unless such person is arrested,
his presence in the Court whenever required cannot be ensured,
and the police officer shall record
while making such arrest, his reasons in writing.
Provided that a police officer shall,
in all cases where the arrest of a person is not required under the provisions
of this sub-section, record the reasons in writing for not making the arrest.
(ba) against whom credible information
has been received that he has committed a cognizable offence punishable with
imprisonment for a term which may extend to more than seven years whether with
or without fine or with death sentence and the police officer has reason to
believe on the basis of that information that such person has committed the
said offence.
(c) who has been proclaimed as an
offender either under this Code or by order of the State Government; or
(d) in whose possession anything is
found which may reasonably be suspected to be stolen property and who may
reasonably be suspected of having committed an offence with reference to such
thing; or
(e) who obstructs a police officer
while in the execution of his duty, or who has escaped, or attempts to escape,
from lawful custody; or
(f) who is reasonable suspected of
being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or
against whom a reasonable complaint has been made, or credible information has
been received, or a reasonable suspicion exists, of his having been concerned
in, any act committed at any place out of India which, if committed in India,
would have been punishable as an offence, and for which he is, under any law
relating to extradition, or otherwise, liable to be apprehended or detained in
custody in India; or
(h) who, being a released convict,
commits a breach of any rule made under subsection (5) of section 356; or
(i) for whose arrest any requisition,
whether written or oral, has been received from another police officer,
provided that the requisition specifies the person to be arrested and the
offence or other cause for which the arrest is to be made and it appears
therefrom that the person might lawfully be arrested without a warrant by the
officer who issued the requisition.
(2) Subject to the provisions of
section 42, no person concerned in a non-cognizable offence or against whom a
complaint has been made or credible information has been received or reasonable
suspicion exists of his having so concerned, shall be arrested except under a
warrant or order of a Magistrate.”
24. Scrutinising the
said provision, the Court held as under:-
“7.1. From a plain reading of the
aforesaid provision, it is evident that a person accused of an offence
punishable with imprisonment for a term which may be less than seven years or
which may extend to seven years with or without fine, cannot be arrested by the
police officer only on his satisfaction that such person had committed the
offence punishable as aforesaid. A police officer before arrest, in such cases
has to be further satisfied that such arrest is necessary to prevent such
person from committing any further offence; or for proper investigation of the
case; or to prevent the accused from causing the evidence of the offence to
disappear; or tampering with such evidence in any manner; or to prevent such
person from making any inducement, threat or promise to a witness so as to
dissuade him from disclosing such facts to the court or the police officer; or
unless such accused person is arrested, his presence in the court whenever
required cannot be ensured. These are the conclusions, which one may reach
based on facts.
x x x x x
7.3. In pith and core, the police
officer before arrest must put a question to himself, why arrest? Is it really
required? What purpose it will serve? What object it will achieve? It is only
after these questions are addressed and one or the other conditions as
enumerated above is satisfied, the power of arrest needs to be exercised. In
fine, before arrest first the police officers should have reason to believe on
the basis of information and material that the accused has committed the
offence. Apart from this, the police officer has to be satisfied further that
the arrest is necessary for one or the more purposes envisaged by sub-clauses (a)
to (e) of clause (1) of Section 41 CrPC.”
25. The learned Judges,
thereafter, referred to Section 41-A CrPC which has been inserted by Section 6
of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009). The said
provision is to the following effect:-
“41-A. Notice of appearance before
police officer.—(1) The police officer shall, in all cases where the arrest
of a person is not required under the provisions of sub-section (1) of Section
41, issue a notice directing the person against whom a reasonable complaint has
been made, or credible information has been received, or a reasonable suspicion
exists that he has committed a cognizable offence, to appear before him or at
such other place as may be specified in the notice.
(2) Where such a notice is issued to
any person, it shall be the duty of that person to comply with the terms of the
notice.
(3) Where such person complies and
continues to comply with the notice, he shall not be arrested in respect of the
offence referred to in the notice unless, for reasons to be recorded, the
police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time,
fails to comply with the terms of the notice or is unwilling to identify
himself, the police officer may, subject to such orders as may have been passed
by a competent court in this behalf, arrest him for the offence mentioned in
the notice.”
Explaining the said provision, it has
been ruled:-
“9. …The aforesaid provision makes it
clear that in all cases where the arrest of a person is not required under
Section 41(1) CrPC, the police officer is required to issue notice directing
the accused to appear before him at a specified place and time. Law obliges
such an accused to appear before the police officer and it further mandates
that if such an accused complies with the terms of notice he shall not be
arrested, unless for reasons to be recorded, the police officer is of the
opinion that the arrest is necessary. At this stage also, the condition
precedent for arrest as envisaged under Section 41 CrPC has to be complied and
shall be subject to the same scrutiny by the Magistrate as aforesaid.”
The Court further went on to say
that:-
“10. We are of the opinion that
if the provisions of Section 41 CrPC which authorises the police officer to
arrest an accused without an order from a Magistrate and without a warrant are
scrupulously enforced, the wrong committed by the police officers intentionally
or unwittingly would be reversed and the number of cases which come to the
Court for grant of anticipatory bail will substantially reduce. We would like
to emphasise that the practice of mechanically reproducing in the case diary
all or most of the reasons contained in Section 41 CrPC for effecting arrest be
discouraged and discontinued.”
The directions issued in the said case
are worthy to note:-
“11. Our endeavour in
this judgment is to ensure that police officers do not arrest the accused
unnecessarily and Magistrate do not authorise detention casually and mechanically.
In order to ensure what we have observed above, we give the following
directions:
11.1. All the State Governments to
instruct its police officers not to automatically arrest when a case under
Section 498-A IPC is registered but to satisfy themselves about the necessity
for arrest under the parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided
with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward
the check list duly filled 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 authorising
detention of the accused shall peruse the report furnished by the police
officer in terms aforesaid and only after recording its satisfaction, the
Magistrate will authorise detention;
11.5. The decision not to arrest an
accused, be forwarded to the Magistrate within two weeks from the date of the
institution of the case with a copy to the Magistrate which may be extended by
the Superintendent of Police of the district for the reasons to be recorded in
writing;
11.6. Notice of appearance in terms of
Section 41-A CrPC be served on the accused within two weeks from the date of
institution of the case, which may be extended by the Superintendent of Police
of the district for the reasons to be recorded in writing;
11.7. Failure to comply with the
directions aforesaid shall apart from rendering the police officers concerned
liable for departmental action, they shall also be liable to be punished for
contempt of court to be instituted before the 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.”
26. The aforesaid
decision, as is perceptible, is in accord with the legislative provision. The
directions issued by the Court are in the nature of statutory reminder of a
constitutional court to the authorities for proper implementation and not to
behave like emperors considering the notion that they can do what they please.
In this context, we may refer with profit to a passage from Joginder
Kumar v. State of U.P and others, (1994)
4 SCC 260:-
“20. … No arrest can be made in a
routine manner on a mere allegation of commission of an offence made against a
person. It would be prudent for a police officer in the interest of protection
of the constitutional rights of a citizen and perhaps in his own interest that
no arrest should be made without a reasonable satisfaction reached after some
investigation as to the genuineness and bona fides of a complaint and a
reasonable belief both as to the person‟s complicity and even so as to the need
to effect arrest. Denying a person of his liberty is a serious matter. The
recommendations of the Police Commission merely reflect the constitutional concomitants
of the fundamental right to personal liberty and freedom. A person is not
liable to arrest merely on the suspicion of complicity in an offence. There
must be some reasonable justification in the opinion of the officer effecting
the arrest that such arrest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer issues notice to person
to attend the Station House and not to leave the Station without permission
would do.”
27. Again, the Court in Joginder
Kumar (supra), while voicing its concern regarding complaints of human
rights pre and after arrest, observed thus:-
“9. A realistic approach should
be made in this direction. The law of arrest is one of balancing individual
rights, liberties and privileges, on the one hand, and individual duties,
obligations and responsibilities on the other; of weighing and balancing the
rights, liberties and privileges of the single individual and those of
individuals collectively; of simply deciding what is wanted and where to put
the weight and the emphasis; of deciding which comes first—the criminal or
society, the law violator or the law abider….”
28. In D.K. Basu
v. State of W.B., (1997) 1 SCC
416 after
referring to the authorities in Joginder Kumar (supra), Nilabati
Behera v. State of Orissa and others, (1993)
2 SCC 746
and State
of M.P. v. Shyamsunder Trivedi and others, (1995) 4 SCC 262 the Court laid down certain guidelines and we
think it appropriate to reproduce the same:-
“(1) The police personnel carrying out
the arrest and handling the interrogation of the arrestee should bear accurate,
visible and clear identification and name tags with their designations. The
particulars of all such police personnel who handle interrogation of the
arrestee must be recorded in a register.
(2) That the police officer carrying
out the arrest of the arrestee shall prepare a memo of arrest at the time of
arrest and such memo shall be attested by at least one witness, who may either
be a member of the family of the arrestee or a respectable person of the
locality from where the arrest is made. It shall also be countersigned by the
arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or
detained and is being held in custody in a police station or interrogation
centre or other lock-up, shall be entitled to have one friend or relative or
other person known to him or having interest in his welfare being informed, as
soon as practicable, that he has been arrested and is being detained at the
particular place, unless the attesting witness of the memo of arrest is himself
such a friend or a relative of the arrestee.
(4) The time, place of arrest and
venue of custody of an arrestee must be notified by the police where the next
friend or relative of the arrestee lives outside the district or town through
the Legal Aid Organisation in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made
aware of this right to have someone informed of his arrest or detention as soon
as he is put under arrest or is detained.
(6) An entry must be made in the diary
at the place of detention regarding the arrest of the person which shall also
disclose the name of the next friend of the person who has been informed of the
arrest and the names and particulars of the police officials in whose custody
the arrestee is.
(7) The arrestee should, where he so
requests, be also examined at the time of his arrest and major and minor
injuries, if any, present on his/her body, must be recorded at that time. The
“Inspection Memo” must be signed both by the arrestee and the police officer
effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected
to medical examination by a trained doctor every 48 hours during his detention
in custody by a doctor on the panel of approved doctors appointed by Director,
Health Services of the State or Union Territory concerned. Director, Health
Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents
including the memo of arrest, referred to above, should be sent to the Illaqa
Magistrate for his record.
(10) The arrestee may be permitted to
meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be
provided at all district and State headquarters, where information regarding
the arrest and the place of custody of the arrestee shall be communicated by
the officer causing the arrest, within 12 hours of effecting the arrest and at
the police control room it should be displayed on a conspicuous notice board.”
29. In Lalita
Kumari v. Government of Uttar Pradesh and others, (2014) 2 SCC 1 the Constitution Bench, referring to various
provisions of CrPC, adverted to the issue of conducting a preliminary enquiry.
Eventually, the Court opined that the scope of preliminary enquiry is not to verify
the veracity or otherwise of the information received but only to ascertain
whether the information reveals any cognizable offence and, thereafter,
proceeded to state thus:-
“120.6. As to what
type and in which cases preliminary inquiry is to be conducted will depend on
the facts and circumstances of each case. The category of cases in which
preliminary inquiry may be made are as under: (a) Matrimonial
disputes/family disputes (b) Commercial offences (c) Medical
negligence cases (d) Corruption cases (e) Cases where there is
abnormal delay/laches in initiating criminal prosecution, for example, over 3
months‟ delay in reporting the matter without satisfactorily explaining the
reasons for delay. The aforesaid are only illustrations and not exhaustive of
all conditions which may warrant preliminary inquiry.”
30. From the aforesaid,
it is quite vivid that the Constitution Bench had suggested that preliminary
enquiry may be held in matrimonial/family disputes.
31. In Rajesh
Sharma (supra), as is noticeable, the Court had referred to authorities
in Arnesh Kumar (supra) and Lalita Kumari (supra)
and observed that:-
“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. [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 v. Raghubir Singh (d)
by Lrs. : (1989) 2 SCC 754, Para 7; Dayaram v. Sudhir Batham :
(2012) 1 SCC 333]. Just
and fair procedure being part of fundamental right to life, [State of Punjab v. Dalbir Singh : (2012) 3 SCC 346, Paras 46, 52 & 85] 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
non-compoundable case of private nature, if continuing the proceedings is found
to be oppressive.
[Gian Singh v. State of Punjab : (2012) 10 SCC 303, Para 61].While stifling a
legitimate prosecution is against public policy, if the proceedings in an
offence of private nature are found to be oppressive, power of quashing is
exercised.
17. We have considered the background
of the issue and also taken into account the 243rd Report of the Law Commission
dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions
(September, 2011) and earlier decisions of this Court. We are conscious of the
object for which the provision was brought into the statute. At the same time,
violation of human rights of innocent cannot be brushed aside. Certain
safeguards against uncalled for arrest or insensitive investigation have been addressed
by this Court. Still, the problem continues to a great extent.
18. To remedy the situation, we are of
the view that involvement of civil society in the aid of administration of
justice can be one of the steps, apart from the investigating officers and the
concerned 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.”
32. After so stating,
the directions have been issued which we have reproduced in paragraph 15
hereinabove.
33. On a perusal of the
aforesaid paragraphs, we find that the Court has taken recourse to fair
procedure and workability of a provision so that there will be no unfairness
and unreasonableness in implementation and for the said purpose, it has taken
recourse to the path of interpretation. The core issue is whether the Court in Rajesh
Sharma (supra) could, by the method of interpretation, have issued such
directions. On a perusal of the directions, we find that the Court has directed
constitution of the Family Welfare Committees by the District Legal Services
Authorities and prescribed the duties of the Committees. The prescription of
duties of the Committees and further action therefor, as we find, are beyond
the Code and the same does not really flow from any provision of the Code.
There can be no denial that there has to be just, fair and reasonable working
of a provision. The legislature in its wisdom has made the offence under
Section 498-A IPC cognizable and non-bailable. The fault lies with the investigating
agency which sometimes jumps into action without application of mind. The
directions issued in Arnesh Kumar (supra) are in consonance with
the provisions contained in Section 41 CrPC and Section 41-A CrPC. Similarly,
the guidelines stated in Joginder Kumar (supra) and D.K.
Basu (supra) are within the framework of the Code and the power of
superintendence of the authorities in the hierarchical system of the
investigating agency. The purpose has been to see that the investigating agency
does not abuse the power and arrest people at its whim and fancy.
34. In Rajesh
Sharma (supra), there is introduction of a third agency which has
nothing to do with the Code and that apart, the Committees have been empowered
to suggest a report failing which no arrest can be made. The directions to
settle a case after it is registered is not a correct expression of law. A
criminal proceeding which is not compundable can be quashed by the High Court
under Section 482 CrPC. When settlement takes place, then both the parties can
file a petition under Section 482 CrPC and the High Court, considering the
bonafide of the petition, may quash the same. The power rests with the High
Court. In this regard, we may reproduce a passage from a three-Judge Bench in Gian
Singh (supra). In the said case, it has been held that:-
“61. … Inherent power is of wide
plenitude with no statutory limitation but it has to be exercised in accord
with the guideline engrafted in such power viz.: (i) to secure the ends
of justice, or (ii) to prevent abuse of the process of any court. In
what cases power to quash the criminal proceeding or complaint or FIR may be
exercised where the offender and the victim have settled their dispute would
depend on the facts and circumstances of each case and no category can be
prescribed. However, before exercise of such power, the High Court must have
due regard to the nature and gravity of the crime. Heinous and serious offences
of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly
quashed even though the victim or victim‟s family and the offender have settled
the dispute. Such offences are not private in nature and have a serious impact
on society. Similarly, any compromise between the victim and the offender in
relation to the offences under special statutes like the Prevention of
Corruption Act or the offences committed by public servants while working in
that capacity, etc.; cannot provide for any basis for quashing criminal
proceedings involving such offences. But the criminal cases having overwhelmingly
and predominatingly civil flavour stand on a different footing for the purposes
of quashing, particularly the offences arising from commercial, financial,
mercantile, civil, partnership or such like transactions or the offences
arising out of matrimony relating to dowry, etc. or the family disputes where
the wrong is basically private or personal in nature and the parties have
resolved their entire dispute. In this category of cases, the High Court may
quash the criminal proceedings if in its view, because of the compromise
between the offender and the victim, the possibility of conviction is remote
and bleak and continuation of the criminal case would put the accused to great
oppression and prejudice and extreme injustice would be caused to him by not
quashing the criminal case despite full and complete settlement and compromise
with the victim.”
35. Though Rajesh
Sharma (supra) takes note of Gian Singh (supra), yet it
seems to have it applied in a different manner. The seminal issue is whether
these directions could have been issued by the process of interpretation. This
Court, in furtherance of a fundamental right, has issued directions in the
absence of law in certain cases, namely, Lakshmi Kant Pandey v. Union of
India, (1984) 2 SCC 244 Vishaka and others v.
State of Rajasthan and others, (1997)
6 SCC 241
and Common
Cause (A Registered Society) v. Union of India and another, (2018) 5 SCC 1 and some others. In the obtaining factual
matrix, there are statutory provisions and judgments in the field and,
therefore, the directions pertaining to constitution of a Committee and
conferment of power on the said Committee is erroneous. However, the directions
pertaining to Red Corner Notice, clubbing of cases and postulating that
recovery of disputed dowry items may not by itself be a ground for denial of
bail would stand on a different footing. They are protective in nature and do
not sound a discordant note with the Code. When an application for bail is
entertained, proper conditions have to be imposed but recovery of disputed
dowry items may not by itself be a ground while rejecting an application for
grant of bail under Section 498-A IPC. That cannot be considered at that stage.
Therefore, we do not find anything erroneous in direction Nos. 19(iv) and (v).
So far as direction No. 19(vi) and 19(vii) are concerned, an application has to
be filed either under Section 205 CrPC or Section 317 CrPC depending upon the
stage at which the exemption is sought.
36. We have earlier
stated that some of the directions issued in Rajesh Sharma (supra)
have the potential to enter into the legislative field. A three-Judge Bench in Suresh
Seth v. Commissioner, Indore Municipal Corporation and others, (2005) 13 SCC 287 ruled thus:-
“5. … In our opinion, this is a matter
of policy for the elected representatives of people to decide and no direction
in this regard can be issued by the Court. That apart this Court cannot issue
any direction to the legislature to make any particular kind of enactment.
Under our constitutional scheme Parliament and Legislative Assemblies exercise
sovereign power to enact laws and no outside power or authority can issue a
direction to enact a particular piece of legislation. In Supreme Court
Employees’ Welfare Assn. v. Union of India, (1989) 4 SCC 187 (SCC para 51) it has been held that no court
can direct a legislature to enact a particular law. Similarly, when an
executive authority exercises a legislative power by way of a subordinate
legislation pursuant to the delegated authority of a legislature, such executive
authority cannot be asked to enact a law which it has been empowered to do
under the delegated legislative authority. …”
37. Another three-Judge
Bench in Census Commissioner and others v. R. Krishnamurthy, (2015) 2 SCC 796; after referring to N.D. Jayal and
another v. Union of India and others, (2004) 9 SCC 362; Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248; Premium Granites and another v. State
of T.N. and others, (1994) 2 SCC 691;
M.P.
Oil Extraction and another v. State of M.P. and others, (1997) 7 SCC 592; State of Madhya Pradesh v. Narmada
Bachao Andolan and another, (2011)
7 SCC 639
and State
of Punjab and others v. Ram Lubhaya Bagga and others, (1998) 4 SCC 117 opined:-
“33. From the
aforesaid pronouncement of law, it is clear as noon day that it is not within
the domain of the courts to embark upon an enquiry as to whether a particular
public policy is wise and acceptable or whether a better policy could be
evolved. The court can only interfere if the policy framed is absolutely
capricious or not informed by reasons or totally arbitrary and founded ipse
dixit offending the basic requirement of Article 14 of the Constitution. In
certain matters, as often said, there can be opinions and opinions but the
court is not expected to sit as an appellate authority on an opinion.”
38. In the aforesaid
analysis, while declaring the directions pertaining to Family Welfare Committee
and its constitution by the District Legal Services Authority and the power
conferred on the Committee is impermissible. Therefore, we think it appropriate
to direct that the investigating officers be careful and be guided by the
principles stated in Joginder Kumar (supra), D.K. Basu (supra),
Lalita Kumari (supra) and Arnesh Kumar (supra). It
will also be appropriate to direct the Director General of Police of each State
to ensure that investigating officers who are in charge of investigation of
cases of offences under Section 498-A IPC should be imparted rigorous training
with regard to the principles stated by this Court relating to arrest.
39. In view of the
aforesaid premises, the direction contained in paragraph 19(i) as a whole is
not in accord with the statutory framework and the direction issued in paragraph
19(ii) shall be read in conjunction with the direction given hereinabove.
40. Direction No.
19(iii) is modified to the extent that if a settlement is arrived at, the
parties can approach the High Court under Section 482 of the Code of Criminal
Procedure and the High Court, keeping in view the law laid down in Gian
Singh (supra), shall dispose of the same.
41. As far as direction
Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall be governed
by what we have stated in paragraph 35.
42. With the aforesaid
modifications in the directions issued in Rajesh Sharma (supra),
the writ petitions and criminal appeal stand disposed of. There shall be no
order as to costs.
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