Update 14/09/2018: The Rajesh Sharma judgment covered here has been reviewed by Supreme Court, and this article covers the salient points of judgment along with its full text.
Update 13/10/2017: The judgment is now up for a revisit by SC (so soon!), and the reason for review is: “We can’t write law. We can only interpret the law.”
SC To Revisit The Judgment By Two Judge Bench On Abuse Of Section 498A IPC [Read Petition]
The women’s NGO (comprising of women advocates) which wanted a review of the judgment gave reasoning and statistics about how rural women benefit from IPC 498A and how the ‘evil’ well-educated women misuse the law, but surprisingly in the end they mainly prayed only for addition of women members to FWC. It seems like the gender of who gets to be the committee member is the main determinant of protecting welfare and safety of rural women! Or the more likely reason is that the women advocates who are members of this NGO want a piece of action of the Family Welfare Committee, since that’s where the ‘counselling’ was supposed to get done after July 2017 SC judgment on IPC 498A. But the SC won’t be satisfied with so minor and technical a prayer, and so the whole judgment will be reviewed now. The original judgment had basically created a curious mix of civil and criminal law and procedures with panchayat style Family Welfare Committees, and probably that part will get corrected now or may get thrown out completely. That’s so because the kind of things it suggested (possible clubbing of civil and criminal cases) are not even possible in law, unless the civil and criminal procedure laws are changed first.
Original Post below:
A new set of guidelines has been issued by Supreme Court, after a gap of about 3 years from the significant Arnesh Kumar vs State of Bihar judgment which curtailed the abuse of power of arrest by police in IPC 498A (and many other crimes) cases. This judgment is in line with creating a more settlement oriented culture, where husbands will be encouraged to pay up and get rid of 498A/406 type of cases, and the carrot being given to accused men and their families are: lesser fear of arrests, facing a civil committee rather than dealing with CAW cells, and lesser pain during trials.
I will post full analysis later. Many people have started proclaiming that this is a path breaking judgment on par with Arnesh Kumar judgment and a further step in right direction, and so on. However, there is nothing in this judgment which will actually curtail filing of false cases by many women. All this judgment will lead to is creation of family welfare committees which will be like civil(ized?) versions of CAW (Crimes Against Women) cells, where husbands and their families will have to deal with a committee, than with police directly. It cannot prevent registration of FIR under 498A/406 etc. Further there are some good points about bail/recovery, personal exemption from appearance; however all of them are in the nature of guidelines to judges rather than have any mandatory force. The one reason why Arnesh Kumar judgment was significant was that it laid down penal possibility for both police and magistrates. It was probably the first time that magistrates’ neck was put on the line from making bad decisions regarding arrest by police. However, this judgment has no such penal features, which could mean that by the time the results of this judgment show on the ground, it may be time for another judgment by SC on another fresh set of guidelines to prevent IPC 498A misuse! The more things change, the more they stay the same…
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Full judgment text below:
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1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1265 OF 2017
[Arising out of Special Leave Petition (Crl.) No.2013 of 2017]
Rajesh Sharma & ors. …Appellants
Versus
State of U.P. & Anr. …Respondents
J U D G M E N T
Adarsh Kumar Goel, J.
1. Leave granted.
2. The question which has arisen in this appeal is whether any
directions are called for to prevent the misuse of Section 498A, as
acknowledged in certain studies and decisions. The Court
requested Shri A.S. Nadkarni, learned ASG and Shri V.V. Giri,
learned senior counsel to assist the Court as amicus. We place on
record our gratitude for the assistance rendered by learned ASG
Shri Nadkarni and learned senior counsel Shri Giri who in turn was
2
ably assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel
and Ms. Svadha Shanker.
3. Proceedings have arisen from complaint dated 2nd
December, 2013 filed by respondent No.2 wife of appellant No.1.
Appellants 2 to 5 are the parents and siblings of appellant No.1.
The complainant alleged that she was married to appellant No.1
on 28th November, 2012. Her father gave dowry as per his
capacity but the appellants were not happy with the extent of the
dowry. They started abusing the complainant. They made a
demand of dowry of Rs.3,00,000/- and a car which the family
could not arrange. On 10th November, 2013, appellant No.1
dropped the complainant at her matrimonial home. She was
pregnant and suffered pain in the process and her pregnancy was
terminated. On the said version, and further version that her
stridhan was retained, appellant No.1 was summoned under
Section 498A and Section 323 IPC. Appellants 2 to 5 were not
summoned. Order dated 14 July, 2014th read as follows:
“After perusal of the file and the document brought on
record. It is clear that the husband Shri Rajesh Sharma
demanded car and three lacs rupees and in not meeting the
demand. It appears that he has tortured the complainant.
3
So far as torture and retaining of the stri dhan and
demanding 50,000 and a gold chain and in not meeting the
demand the torture is attributable against Shri Rajesh
Sharma. Rajesh Sharma appears to be main accused. In
the circumstances, rest of the accused Vijay Sharma,
Jaywati Sharma, Praveen Sharma and Priyanka Sharma
have not committed any crime and they have not
participated in commission of the crime. Whereas, it
appears that Rajesh Sharma has committed an offence
under Section 498A, 323 IPC and read with section 3 / 4 DP
act appears to have prima facie made out. Therefore, a
summon be issued against him.”
4. Against the above order, respondent No.2 preferred a
revision petition and submitted that appellants 2 to 5 should also
have been summoned. The said petition was accepted by the
Additional Sessions Judge, Jaunpur vide order dated 3rd July, 2015.
The trial court was directed to take a fresh decision in the matter.
Thereafter, the trial court vide order dated 18th August, 2015
summoned appellants 2 to 5 also. The appellants approached the
High Court under Section 482 CrPC against the order of
summoning. Though the matter was referred to the mediation
centre, the mediation failed. Thereafter, the High Court found no
ground to interfere with the order of summoning and dismissed
the petition. Hence this appeal.
4
5. Main contention raised in support of this appeal is that there
is need to check the tendency to rope in all family members to
settle a matrimonial dispute. Omnibus allegations against all
relatives of the husband cannot be taken at face value when in
normal course it may only be the husband or at best his parents
who may be accused of demanding dowry or causing cruelty. To
check abuse of over implication, clear supporting material is
needed to proceed against other relatives of a husband. It is
stated that respondent No.2 herself left the matrimonial home.
Appellant No.2, father of appellant No.1, is a retired government
employee. Appellant No.3 is a house wife. Appellant No.4 is
unmarried brother and appellant No.5 is unmarried sister who is a
government employee. Appellants 2 to 5 had no interest in
making any demand of dowry.
6. Learned counsel for respondent No.2 supported the
impugned order and the averments in the complaint.
7. Learned ASG submitted that Section 498A was enacted to
check unconscionable demands by greedy husbands and their
5
families which at times result in cruelty to women and also
suicides. He, however, accepted that there is a growing tendency
to abuse the said provision to rope in all the relatives including
parents of advanced age, minor children, siblings, grand-parents
and uncles on the strength of vague and exaggerated allegations
without there being any verifiable evidence of physical or mental
harm or injury. At times, this results in harassment and even
arrest of innocent family members, including women and senior
citizens. This may hamper any possible reconciliation and reunion
of a couple. Reference has been made to the statistics from the
Crime Records Bureau (CRB) as follows:
“9. That according to Reports of National Crime
Record Bureau in 2005, for a total 58,319 cases
reported under Section 498A IPC, a total of 1,27,560
people were arrested, and 6,141 cases were
declared false on account of mistake of fact or law.
While in 2009 for a total 89,546 cases reported, a
total of 1,74,395 people were arrested and 8,352
cases were declared false on account of mistake of
fact or law.
10. That according to Report of Crime in India, 2012
Statistics, National Crime Records Bureau, Ministry of
Home Affairs showed that for the year of 2012, a
total of 197,762 people all across India were arrested
under Section 498A, Indian Penal Code. The Report
further shows that approximately a quarter of those
arrested were women that is 47,951 of the total were
perhaps mother or sisters of the husband. However
6
most surprisingly the rate of charge-sheet filing for
the year 2012, under Section 498A IPC was at an
exponential height of 93.6% while the conviction rate
was at a staggering low at 14.4% only. The Report
stated that as many as 3,72,706 cases were pending
trial of which 3,17,000 were projected to be
acquitted.
11. That according to Report of Crime in India, 2013,
the National Crime Records Bureau further pointed
out that of 4,66,079 cases that were pending in the
start of 2013, only 7,258 were convicted while
38,165 were acquitted and 8,218 were withdrawn.
The conviction rate of cases registered under Section
498A IPC was also a staggering low at 15.6%.”
8. Referring to Sushil Kumar Sharma versus Union of
India(1) , Preeti Gupta versus State of Jharkhand(2) , Ramgopal
versus State of Madhya Pradesh(3) , Savitri Devi versus
Ramesh Chand(4), it was submitted that misuse of the provision is
judicially acknowledged and there is need to adopt measures to
prevent such misuse. The Madras High Court in M.P. No.1 of 2008
in Cr. O.P. No.1089 of 2008 dated 4th August, 2008 directed
issuance of following guidelines:
“It must also be borne in mind that the object behind the
enactment of Section 498-A IPC and the Dowry Prohibition
1 (2005) 6 SCC 281
2 (2010) 7 SCC 667
3 (2010) 13 SCC 540
4 ILR (2003) I Delhi 484
7
Act is to check and curb the menace of dowry and at the
same time, to save the matrimonial homes from destruction.
Our experience shows that, apart from the husband, all
family members are implicated and dragged to the police
stations. Though arrest of those persons is not at all
necessary, in a number of cases, such harassment is made
simply to satisfy the ego and anger of the complainant. By
suitably dealing with such matters, the injury to innocents
could be avoided to a considerable extent by the
Magistrates, but, if the Magistrates themselves accede to the
bare requests of the police without examining the actual
state of affairs, it would create negative effects thereby, the
very purpose of the legislation would be defeated and the
doors of conciliation would be closed forever. The husband
and his family members may have difference of opinion in
the dispute, for which, arrest and judicial remand are not the
answers. The ultimate object of every legal system is to
punish the guilty and protect the innocents.”
9. Delhi High Court vide order dated 4th August, 2008 in
Chander Bhan versus State(5) in Bail Application No.1627/2008
directed issuance of following guidelines :
“2. Police Authorities:
(a) Pursuant to directions given by the Apex Court, the
Commissioner of Police, Delhi vide Standing Order
No.330/2007 had already issued guidelines for arrest in the
dowry cases registered under Sections 498-A/406 IPC and
the said guidelines should be followed by the Delhi Police
strictly and scrupulously.
(i) No case under Section 498-A/406 IPC should be
registered without the prior approval of DCP/Addl.DCP.
(ii) Arrest of main accused should be made only after
thorough investigation has been conducted and with the
prior approval of the ACP/DCP.
5 (2008) 151 DLT 691
8
(iii) Arrest of the collateral accused such as father-in-law,
mother-in-law, brother-in-law or sister-in-law etc. should only
be made after prior approval of DCP on file.
(b) Police should also depute a well trained and a well
behaved staff in all the crime against women cells especially
the lady officers, all well equipped with the abilities of
perseverance, persuasion, patience and forbearance.
(c) FIR in such cases should not be registered in a routine
manner.
(d) The endavour of the Police should be to scrutinize
complaints very carefully and then register FIR.
(e) The FIR should be registered only against those
persons against whom there are strong allegations of
causing any kind of physical or mental cruelty as well as
breach of trust.
(f) All possible efforts should be made, before
recommending registration of any FIR, for reconciliation and
in case it is found that there is no possibility of settlement,
then necessary steps in the first instance be taken to ensure
return of stridhan and dowry articles etc. by the accused
party to the complainant.”
10. In Arnesh Kumar versus State of Bihar(6) , 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.”
10
11. Learned ASG suggested that there must be some preliminary
inquiry on the lines of observations in Lalita Kumari versus
Government of Uttar Pradesh(7) . Arrest of a relative other than
husband could only be after permission from the concerned
Magistrate. There should be no arrest of relatives aged above 70
years. Power of the police to straight away arrest must be
prohibited. While granting permission, the court must ascertain
that there is prima facie material of the accused having done
some overt and covert act. The offence should be made
compoundable and bailable. The role of each accused must be
specified in the complaint and the complaint must be
accompanied by a signed affidavit. The copy of the preliminary
enquiry report should be furnished to the accused.
12. Shri V. Giri, learned senior counsel assisted by advocates Ms.
Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker
submitted that arrest in an offence under Section 498A should be
only after recording reasons and express approval from the
Superintendent of Police. In respect of relatives who are
ordinarily residing outside India, the matter should proceed only if
7 (2014) 2 SCC 1
11
the IO is convinced that arrest is necessary for fair investigation.
In such cases impounding of passport or issuance of red corner
notice should be avoided. Procedure under Section 14 of the
Protection of Women from Domestic Violence Act, 2005, of
counseling should be made mandatory before registration of a
case under Section 498A.
13. We have given serious consideration to the rival submissions
as well as suggestions made by learned ASG and Shri V. Giri,
Senior Advocate assisted by Advocates Ms. Uttara Babbar, Ms.
Pragya Baghel and Ms. Svadha Shanker. We have also
perused 243rd Law Commission Report (August, 2012), 140th
Report of the Rajya Sabha Committee on Petition (September,
2011) as well as several decisions to which our attention has been
invited.
14. Section 498A was inserted in the statute with the laudable
object of punishing cruelty at the hands of husband or his
relatives against a wife particularly when such cruelty had
potential to result in suicide or murder of a woman as mentioned
in the Statement of Objects and Reasons of the Act 46 of 1983.
12
The expression ‘cruelty’ in Section 498A covers conduct which
may drive the women to commit suicide or cause grave injury
(mental or physical) or danger to life or harassment with a view to
coerce her to meet unlawful demand. 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 warranted .
The matter also appears to have been considered by the Law
Commission, the Malimath Committee, the Committee on
Petitions in the Rajya Sabha, the Home Ministry, which have been
referred to in the earlier part of the Judgment. The abuse of the
8 Explanation to Section 498A
9 Preeti Gupta (supra)
13
provision was also noted in the judgments of this Court referred to
earlier. Some High Courts have issued directions to check such
abuse. In Arnesh Kumar (supra) this Court gave directions to
safeguard uncalled for arrests. Recommendation has also been
made by the Law Commission to make the offence
compoundable. 15. Following areas appear to require remedial
steps :-
i) Uncalled for implication of husband and his relatives
and arrest.
ii) Continuation of proceedings in spite of settlement
between the parties since the offence is
non-compoundable and uncalled for hardship to parties
on that account.
16. Function of this Court is not to legislate but only to interpret
the law. No doubt in doing so laying down of norms is sometimes
unavoidable. Just and fair procedure being part of fundamental
right to life, 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. While stifling a
legitimate prosecution is against public policy, if the proceedings
in an offence of private nature are found to be oppressive, power
of quashing is exercised.
17. We have considered the background of the issue and also
taken into account the 243rd Report of the Law Commission dated
30th August, 2012, 140th Report of the Rajya Sabha Committee on
Petitions (September, 2011) and earlier decisions of this Court.
We are conscious of the object for which the provision was
brought into the statute. At the same time, violation of human
rights of innocent cannot be brushed aside. Certain safeguards
against uncalled for arrest or insensitive investigation have been
addressed by this Court. Still, the problem continues to a great
extent.
18. To remedy the situation, we are of the view that involvement
of civil society in the aid of administration of justice can be one of
the steps, apart from the investigating officers and the concerned
12 Gian Singh vs. State of Punjab (2012) 10 SCC 303- para-61, (2014) 5 SCC
364- para -14
15
trial courts being sensitized. It is also necessary to facilitate
closure of proceedings where a genuine settlement has been
reached instead of parties being required to move High Court only
for that purpose.
19. Thus, after careful consideration of the whole issue, we
consider it fit to give following directions :-
i) (a) In every district one or more Family Welfare
Committees be constituted by the District Legal
Services Authorities preferably comprising of three
members. The constitution and working of such
committees may be reviewed from time to time
and at least once in a year by the District and
Sessions Judge of the district who is also the
Chairman of the District Legal Services Authority.
(b) The Committees may be constituted out of
para legal volunteers/social workers/retired
persons/wives of working officers/other citizens
who may be found suitable and willing.
16
(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.
17
(h) The report may be then considered by the
Investigating Officer or the Magistrate on its own
merit.
(i) Members of the committee may be given such
basic minimum training as may be considered
necessary by the Legal Services Authority from
time to time.
(j) The Members of the committee may be given
such honorarium as may be considered viable.
(k) It will be open to the District and Sessions
Judge to utilize the cost fund wherever considered
necessary and proper.
ii) Complaints under Section 498A and other
connected offences may be investigated only by a
designated Investigating Officer of the area. Such
designations may be made within one month from
today. Such designated officer may be required to
undergo training for such duration (not less than
one week) as may be considered appropriate. The
18
training may be completed within four months
from today;
iii) In cases where a settlement is reached, it will be
open to the District and Sessions Judge or any
other senior Judicial Officer nominated by him in
the district to dispose of the proceedings including
closing of the criminal case if dispute primarily
relates to matrimonial discord;
iv) If a bail application is filed with at least one clear
day’s notice to the Public Prosecutor/complainant,
the same may be decided as far as possible on the
same day. Recovery of disputed dowry items may
not by itself be a ground for denial of bail if
maintenance or other rights of wife/minor children
can otherwise be protected. Needless to say that
in dealing with bail matters, individual roles, prima
facie truth of the allegations, requirement of
further arrest/ custody and interest of justice must
be carefully weighed;
19
v) In respect of persons ordinarily residing out of
India impounding of passports or issuance of Red
Corner Notice should not be a routine;
vi) It will be open to the District Judge or a designated
senior judicial officer nominated by the District
Judge to club all connected cases between the
parties arising out of matrimonial disputes so that
a holistic view is taken by the Court to whom all
such cases are entrusted; and
vii) Personal appearance of all family members and
particularly outstation members may not be
required and the trial court ought to grant
exemption from personal appearance or permit
appearance by video conferencing without
adversely affecting progress of the trial.
viii) These directions will not apply to the offences
involving tangible physical injuries or death.
20. After seeing the working of the above arrangement for six
months but latest by March 31, 2018, National Legal Services
20
Authority may give a report about need for any change in above
directions or for any further directions. The matter may be listed
for consideration by the Court in April, 2018.
21. Copies of this order be sent to National Legal Services
Authority, Director General of Police of all the States and the
Registrars of all the High Courts for further appropriate action.
22. It will be open to the parties in the present case to approach
the concerned trial or other court for further orders in the light of
the above directions.
…………………………………….J.
(Adarsh Kumar Goel)
…………………………………….J.
(Uday Umesh Lalit)
New Delhi;
27th July, 2017