Modified directions in IPC 498A cases upon review of Rajesh Sharma judgment by Supreme Court

Note: this judgment has been overridden by a later decision of the Supreme Court, so the article below can be read basically as a historical reference.

The Rajesh Sharma judgment with new guidelines to be followed in IPC 498A cases was pronounced in 2017 by a two judge bench, and it was much celebrated by some people and hailed as a path-breaking judgment, as if following of those guidelines would automatically take away all fear of arrest, roping in of all family members, or the possibility of facing criminal trial in Indian system for 5-10 years!

Several guidelines/directions were issued in that judgment, and the gist of those were: constitution of Family Welfare Committees (FWC), designated IO for IPC 498A cases, possibility/promotion of culture of less arrests/more settlements (under aegis of FWC), easier bail, recovery of articles, personal exemption to family members, etc.

The point about Family Welfare Committees (FWC) had caught the imagination of may 498A accused or those fearing institution of such cases, and it was thought that these committees will listen to husband’s version of story or take into account his evidence etc, since CAW and police don’t listen to them.  It was basically a pie in the sky.

In any case, the most important point of the review of Rajesh Sharma judgment is that the constitution of Family Welfare Committees have been taken out, since it was deemed to be against provisions of Code of Criminal Procedure, and not something which could fit into a framework of an issued guideline by constitutional court.

This judgment refers to many previous judgments on IPC 498A, as well as others relating to law of and justification behind arrests, filing of FIR etc (Lalita Kumari) for a cognizable offence etc.

The Rajesh Sharma judgment had resulted in several directions, and the review of that judgment has resulted in removal/modifications with the result that the direction about Family Welfare Committees has been completely taken out, and some other directions have been modified, and some others are kept as they were.

The core part of this judgment is well-reasoned (keeping aside use of a few absurd sentences in first few pages).  For sake of ease of understanding, the directions of Rajesh Sharma judgment of 2017 in para 19 are given below, followed by comments as to it’s newer status: REMOVED, STILL APPLICABLE, or MODIFIED.

 

19. Thus, after careful consideration of the whole issue, we

consider it fit to give following directions :-

———19(i) has been REMOVED completely———

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.

 

———19(ii) below is MODIFIED as per following para 38 from review judgment———

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;

Para 38 from review judgment:

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.

Comments: The only positive point here is about direction to DGP of each state to impart rigorous training with regard to principles behind arrest provisions.  How many such directions result in actual action on the ground is another matter.  People can file RTI on DGP of respective states to get status update on this training.

 

———19(iii) below is MODIFIED and to be read in conjunction with following para 40 from review judgment———

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;

Para 40 from review judgment:

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.

Comments: In effect, this point about procedure in case of settlement is exactly what has been the usual procedure till Rajesh Sharma judgment of 2017, and so, in reality, this direction may also be considered to be removed.

———19(iv) , (v), (vi), (vii) are STILL APPLICABLE and to be read in conjunction with following para 35 of review judgment———

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.

Para 35 from review judgment:

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(14) ,  Vishaka and others v. State of Rajasthan and others(15)  and  Common Cause  (A Registered Society)  v. Union of India and another(16)   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.

14 (1984) 2 SCC 244
15 (1997) 6 SCC 241
16 (2018)  5 SCC 1

Following directions from 19(iv), (v), (vi), (vii) from Rajesh Sharma judgment have become final now after this review judgment:

1. 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

2. In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;

3. Personal exemption from appearance of all family members (except husband) during IPC 498A trial seems to be upheld even after this review judgment.  Also one must read this judgment on personal exemption for family members residing at a long distance from place of trial.

4. The part about video conferencing is interesting at best since most courts in the country have no such infrastructure as of now.

 

Below direction in 19(viii) has not been mentioned in the review judgment, presumably because by taking out provision of Family Welfare Committees, this is no longer applicable anyway.

viii)    These directions will not apply to the offences
involving tangible physical injuries or death.

 

Final Analysis:

The only substantial provisions remaining after this review of Rajesh Sharma judgment is about making recovery of disputed dowry articles not a condition for grant of bail, and personal exemption from appearance of family members.  Other provisions are more of a guideline than a direction, and some of them like video conferencing need lot of infrastructure and training of judicial administration folks to be implemented.

——————————————

Full judgment text below:

——————————————

 

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 73 OF 2015

 

Social Action Forum for Manav Adhikar                                …Petitioner(s)
and another

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

 

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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

 

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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.

 

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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

 

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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(1), 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(2) ,

the Court observed:-

 

1 (2005) 6 SCC 281 : AIR 2005 SC 3100
2 (2003) 4 SCC 675 : AIR 2003 SC 1386

 

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“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(3) , 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

3 (1989) 2 SCR 612

 

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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

 

8

 

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

 

9

 

decisions of this Court including Rajesh Sharma and others v. State

of U.P. and another(4), 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

 

 

4 AIR 2017 SC 3869 : 2017 (8) SCALE 313

 

10

 

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

 

11

 

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.

 

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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.
(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;

 

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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;

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:-

 

14

 

“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

 

15

 

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

 

16

 

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

 

17

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(5)  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

5 (2014) 8 SCC 273

 

18

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

 

19

(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

 

20

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 sub-section (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

 

21

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

 

22

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

 

23

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

 

24

 

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(6) :-

“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

6 (1994) 4 SCC 260

 

25

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.(7), after referring to the authorities in

Joginder  Kumar (supra),   Nilabati  Behera  v.  State  of  Orissa  and

others(8)  and  State of M.P. v. Shyamsunder Trivedi and others(9) , 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

 

7 (1997) 1 SCC 416
8 (1993) 2 SCC 746
9 (1995) 4 SCC 262

 

26

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(10) ,

the Constitution Bench, referring to various provisions of CrPC, adverted

 

10 (2014) 2 SCC 1

 

27

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

 

28

is sometimes unavoidable.(11)  Just and fair procedure being
part of fundamental right to life,(12)  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.(13)   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

 

11 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
12 State of Punjab v. Dalbir Singh  : (2012) 3 SCC 346, Paras 46, 52 & 85
13 Gian Singh v. State of Punjab  : (2012) 10 SCC 303, Para 61

 

29

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.

 

30

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
i
guideline engrafted in such power viz.: () to secure the ends
ii
of justice, or ( ) 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

 

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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(14) ,  Vishaka and others v.

State of Rajasthan and others(15)  and  Common Cause  (A Registered

Society)  v. Union of India and another(16)   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

 

 

14 (1984) 2 SCC 244
15 (1997) 6 SCC 241
16 (2018)  5 SCC 1

 

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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(17)  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.

17 (2005) 13 SCC 287

 

33

Union of India(18)  (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(19) ,  after  referring  to   N.D.  Jayal  and

another v. Union of India and others(20) ,  Rustom Cavasjee Cooper v.

Union of India(21) ,  Premium Granites  and another v. State of T.N. and

others(22) ,   M.P.  Oil  Extraction  and  another  v.  State  of  M.P.  and

others(23) ,  State of Madhya Pradesh v. Narmada Bachao Andolan and

another(24)  and  State of Punjab and others v. Ram Lubhaya Bagga

and others(25) , 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.”

 

18  (1989) 4 SCC 187
19  (2015) 2 SCC 796
20  (2004) 9 SCC 362
21  (1970) 1 SCC 248
22  (1994) 2 SCC 691
23  (1997) 7 SCC 592
24  (2011) 7 SCC 639
25  (1998) 4 SCC 117

 

34

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.

 

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.

 

…..………………………..,CJI
(Dipak Misra)

 

…..…………………………..,J
(A.M. Khanwilkar)

 

..………………………….….,J
(Dr. D.Y. Chandrachud)
New Delhi;
September  14 , 2018.