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Misuse of 498a – False 498A Legal Terrorism says Supreme Court in Sushil Kumar

IN THE SUPREME COURT OF INDIA

Civil appeal No. 4399 of 2005 (Arising out of SLP (C) no. 17656 of 2004

Decided On: 19.07.2005

Appellants: Sushil Kumar Sharma
Vs.
Respondent: Union of India (UOI) and Ors.

JUDGMENT:

By this petition purported to have been filed under Article 32 of the Constitution of India, 1950 (in short ‘the Constitution’) prayer is to declare Section 498A of Indian Penal Code, 1860 (in short ‘the IPC’) to be unconstitutional and ultra vires in the alternative

to FORMULATE GUIDELINES so that INNOCENT PERSONS ARE NOT VICTIMIZED by unscrupulous persons making false accusations

2. Further prayer is made that whenever, any court comes to the conclusion that the allegations made regarding commission of offence under Section 498A IPC are unfounded, stringent action should be taken against person making the allegations. This, according to the petitioner, would discourage persons from coming to courts with unclean hands and ulterior motives. Several instances have been highlighted to show as to how commission of offence punishable under Section 498A IPC has been made with oblique motives and with a view to harass the husband, in-laws and relatives.

 3. According to the petitioner there is no prosecution in these cases but persecution. Reliance was also placed on a decision rendered by a learned Single Judge of the Delhi High Court wherein concern was shown about the increase in number of false and frivolous allegations made. It was pointed out that accusers are more at fault than the accused. Persons try to take undue advantage of the sympathies exhibited by the courts in matters relating to alleged dowry torture.

 4. Section 498A appears in Chapter XXA of IPC.

 5. Substantive Section 498A IPC and presumptive Section 113B of the Indian Evidence Act, 1372 (in short ‘Evidence Act’) have been inserted in the respective statutes by Criminal Law ( Second Amendment) Act, 1983.

 6. Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

 7. Section 498A reads as follows: “498A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation – For the purpose of this section ‘cruelty’ means –

 (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

 Section 113B reads as follows:-

 “113B: Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

 Explanation – For the purposes of this section ‘dowry death’ shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).”

 8. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the explanation for the purpose of Section 498A. It is to be noted that. Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to betaken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence.

 9. The object for which Section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short ‘the Cr.P.C.’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-law and relatives. The avowed object is to combat the menace of dowry death and cruelty.

 10. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two Sections i.e. Section 306 and Section 498A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the women concerned to commit suicide,

 while under the former provision suicide is abetted and intended.

 11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done “not with an evil eye and unequal hand” (see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and Anr.)

 12. In Budhan Choudhry and Ors. v. State of Bihar a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.

 13. From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, “action” and not the “section” may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.

 14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty (1962 (3) SCR 786) this Court observed:

 

 “The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.” It was said in State of Rajasthan v. Union of India “it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.” (Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth (1954 SCR 1005).

 

 15. As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat. Unique Butle Tube Industries (P) Ltd. v. U.P. Financial Corporation and Ors. and Padma Sundara Rao (dead) and Ors. v. State of Tamil and Ors., while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.

 

 16. The judgment of the Delhi High Court on which reliance was made was rendered in the case of Savitri Devi v. Ramesh Chand and Ors. In that case while holding that the allegations regarding commission of offence punishable under Section 498A IPC were not made out. Certain observations in general terms were made about the need for legislative changes. The complainant had moved this Court against the judgment on merits in SLP(Crl)……of 2003 entitled Savitri Devi v. Ramesh Chand and Ors. By order dated 28.11.2003 this Court observed, as follows:

  “Heard learned counsel for the petitioner. Delay condoned.

  We do not see any merit in the challenge made to the order of the High Court in Criminal Revision No. 462 of 2002, on the facts of the case. The special leave petition is, therefore, dismissed.

  At the same time, we express our disapproval of some of the generalized views expressed in paragraphs 23 to 32 of the judgment of the High Court by the learned Single Judge. The learned Judge ought to have seen that such observations, though may be appropriate for seminars or workshops, should have been avoided being incorporated as part of a court judgment. Some of the views also touch upon Legislative measures and wisdom of legislative policy in substance, which according to the learned Judge need to be taken into account. There was no scope for considering all such matters in the case which was before the learned Judge. It is, therefore, appropriate that such generalized observations or views should meticulously avoided by Courts in the judgments.”

  17. Above being the position we find no substance in the plea that Section 498A has no legal or constitutional foundation.

  18. The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the 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. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new

  LEGAL TERRORISM

 can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to ARRIVE AT TRUTH, PUNISH THE GUILTY AND PROTECT THE INNOCENT. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.

 19. Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the ‘CBI’) in certain matters where the petitioner is arrayed as an accused. We do not find any substance in this plea. If the petitioner wants to prove his innocence, he can do so in the trial, if held.

Held : The Writ Petition is accordingly disposed of.
 
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Allahabad High Court guidelines on arrests in 498A/406/Dowry Cases.

Allahabad High Court guidelines on arrests in 498A/406/Dowry Cases. 

HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 46
Case :- CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010

Petitioner :- Re: In The Matter Of Matrimonial Disputes
Respondent :- State Of U.P. & Others
Petitioner Counsel :- P.N. Gangwar
Respondent Counsel :- Govt. Advocate,Abhay Raj Singh,Pankaj Naqvi

Hon’ble Amar Saran,J.
Hon’ble Shyam Shankar Tiwari,J.

On 8.8.2011, there was an extensive hearing in this case when Ms. Leena Jauhari,
Secretary (Home), Government of U.P. Lucknow, Smt. Poonam Sikand, Additional L.R
and Tanuja Srivastava, I.G.( Public Grievances), Ms. G. Sridevi, Secretary, U.P.
State Legal Services Authority, Sri Ashok Mehta, Organising Secretary, Allahabad
High Court, Mediation and Conciliation Centre, Sri Pankaj Naqvi, Sister Sheeba
Jose Advocates on behalf of the intervenor ‘Sahyog,’ Sri D.R. Chaudhary, learned
Government Advocate and Sri Bimlendu Tripathi, learned A.G.A appeared and were
heard at length.

An affidavit has also been filed on behalf of the Director General of Police on
10.8.2011. Another affidavit was also filed on behalf of Special Secretary
(Home), U.P. on 12.8.2011. An application was also moved by the intervenor
‘Sahyog.’

This Court appreciates the positive contributions and suggestions of all the
aforesaid advocates and other State officials and that this pro bono litigation
is being taken up in the right non-adversarial spirit, with the aim to ensure
that wherever allegations are not very grave, in order to save families, and
children and indeed the institution of marriage, an effort be first made for
reconciling matrimonial disputes by mediation before steps can be taken for
prosecuting offenders, if they are called for.

In Preeti Gupta v. State of
Jharkhand, AIR 2010 SC 3363 the learned members of the bar have been reminded of
their noble profession and their noble tradition and of their responsibility to
ensure that the social fibre of family life is preserved by desisting from
over-implicating all in-laws and their relations as accused persons in 498-A IPC
reports, and from filing exaggerated reports. They are also to make an endeavour
to bring about amicable settlements to this essentially human problem. It has
also been rightly pointed out in Sushil Kumar Sharma v Union of India, AIR 2005
SC 3100 (para 18) whilst upholding the vires of section 498-A IPC, that it
should be ensured that complaints are not filed with oblique motives by
unscrupulous litigants so that a “new legal terrorism” is not unleashed, and
that the well-intentioned provision is not misused.

In Kans Raj v State of Punjab, AIR 2000 SC 2324, it has been held that there is
a tendency in cases of 498-A IPC and 304 B IPC to rope in a large number of
in-laws of the victim wife, and not only the husband. In para 5 of the law
report it has been observed: “….In their over enthusiasm and anxiety to seek
conviction for maximum people, the parents of the deceased have been found to be
making efforts for involving other relations which ultimately weaken the case of
the prosecution even against the real accused as appears to have happened in the
instant case.”

Specifically as a result of the interaction and suggestions which emerged after
a dialogue with the Advocates and officials, this Court requires to formulate
its opinion on the following points:

1.Whether registration of an FIR is mandatory once an aggrieved woman or the
eligible family members as specified under section 198A Cr.P.C approaches the
police station giving information that an offence under section 498A IPC or
allied provisions such as under section � D.P. Act or under section 406
I.P.C have been committed by the husband or other in-laws and their relations.

2.Should the concerned police officers immediately proceed to arrest the husband
and other family members of the husband whenever such an FIR is lodged.

3.Can a distinction be made between the cases where arrest is immediately
necessary and other cases where arrest can be deferred and an attempt be first
made for bringing about mediation between the parties.

4.What is the appropriate place where mediation should be conducted.

5.Should a time frame be laid down for concluding the mediation proceedings.

6.Who should be the members of the mediation cell in the district.

7.What is the procedure to be followed by the police when a report of a
cognizable offence under section 498A IPC or allied provisions is disclosed.

8.Is training of mediators desirable and who should conduct the training?

9.Should the offence under Section 498A be made compoundable and what steps the State Government may take in this direction.

Discussions on the points requiring formulation by the Court.

1. Whether registration of an FIR is mandatory?

Section 154 of the Code of Criminal Procedure mandates that when any information
regarding information of a cognizable offence is given orally to the officer in
charge of the Police Station, he is required to reduce it in writing and to
enter it into the general diary. The said provision gives no option to the
concerned Police Officer to refuse to lodge the F.I.R. once information of a
cognizable offence is given to the police officer.

In paragraph No. 30 and 31 in State of Haryana and others Vs. Bhajan Lal, 1992
Cri. L.J. 527, it has been laid down that section 154 (1) of the Code provides
that whenever an information is given that a cognizable offence has been
committed, the Police Officer cannot embark upon an inquiry to ascertain as to
whether the information was reliable or genuine or refuse to register the case
on that ground. The officer in charge of the Police Station is statutorily
obliged to register the case and then to proceed with the investigation, if he
even has reason to suspect the commission of an offence.

(2) Whether arrest of husband and family members mandatory once FIR is lodged
It is noteworthy that section 154 Cr.P.C. which deals with the powers of
investigation and the necessity of lodging an FIR when a cognizable offence only
speaks of “information relating to the commission of a cognizable offence” given
to an officer. No pre-condition, as pointed out above, is placed under this
provision for first examining whether the information is credible or genuine. In
contrast section 41(1)((b) Cr.P.C dealing with the powers of the police to
arrest without a warrant from a Magistrate requires the existence of a
“reasonable complaint,” or “credible information” or “reasonable suspicion” of
the accused being involved in a cognizable offence as pre-conditions for
effecting his arrest.

The two provisos to section 157 also speak of two exceptions when investigation
(and consequent arrest) may not be necessary. These two situations are:
(a) when information as to the commission of any such offence is given against
any person by name and the case is not of a serious nature, the officer in
charge of a police station need not proceed in person or depute a subordinate
officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no
sufficient ground for entering on an investigation, he shall not investigate the
case. However in such situations the police officer is to mention in his report
the reasons for not investigating the case. In the second case, where a police
officer is of the opinion that there is no sufficient ground for investigating a
matter, he is to also inform the informant of his decision.
The proviso (b) to section 157 (1) Cr. P. C. has been discussed in paragraphs
No. 53 and 54 in Bhajan Lal (supra). The law report clarifies that clause (b) of
the proviso permits a police officer to satisfy himself about the sufficiency of
the grounds even before entering on an investigation. However, at that stage,
the satisfaction that on the allegations, a cognizable offence warranting
investigation is disclosed, has only to be based on the F.I.R. and other
materials appended to it, which are placed before the Police Officer. Therefore,
if it appears to the Police Officer that the matrimonial dispute between the
spouses is either not of a grave nature or is the result of a conflict of egos
or contains an exaggerated version, or where the complainant wife has not
received any injury or has not been medically examined, he may even desist or
defer the investigation in such a case.

Recently by Act No. 5 of 2009, the newly introduced section 41 (1) (b), has been
given effect to from 1.11.2010. This sub-section provides that if some material
or credible information exists of an accused being involved in a cognizable
offence punishable with 7 years imprisonment or less with or without fine, the
Police Officer has only to make an arrest, if he is satisfied that such arrest
is necessary (i) to prevent such person from committing any further offence,
(ii) for proper investigation of the offence; (iii) to prevent such person from
causing the evidence of the offence to disappear or tampering with the evidence
in any manner; (iv) for preventing such person from making any inducement,
threat or promise to a witness to dissuade him from disclosing such facts to the
Court or the Police Officer (v) or unless such a person is arrested, he may not
appear in the Court when required. This new provision has forestalled any
routine arrests simply because a person is said to be involved in a cognizable
offence punishable with imprisonment up to 7 years. The arrest is only to be
effected if any or all of the five conditions abovementioned are fulfilled. For
making or for not making such arrest, the Police Officer has to record his
reasons. In contrast to this provision, under section 41 (1) (ba) such a
limitation has not been provided for those cases, where credible information has
been received that a person has committed an offence punishable with
imprisonment of over 7 years.

A new provision, section 41 A Cr.P.C has also been added by Act No. 5 of 2009
(with effect from 1.11.2010) which gives powers to a Police Officer to issue a
notice directing the person against whom a reasonable complainant has been made
or credible information or reasonable suspicion exists to appear before him or
at any place that he may specify in the notice where the police officer is of
the opinion that the arrest is not required under the provisions of section
41(1) Cr.P.C. but the accused is to comply with the notice and he would not be
arrested, if he continues to comply with the terms of the notice. However, where
the person fails to comply with the notice, the police has all powers to arrest
him, unless there is some order of the Court granting him bail or staying his
arrest.

Now an offence under section 498A IPC is punishable with imprisonment only up to
three years and fine. If there are no injuries on a victim, in our opinion, it
constitutes a fit case for the police officer to exercise powers conferred by
the newly introduced section 41(1)(b) read with section 41 (A), where instead of
straight away arresting the accused, it would be a better option at the initial
stage for the police officer to require the said person to appear before him or
before the Mediation Centre. As pointed out above section 41 A Cr.P.C. permits
calling the person concerned before the police officer himself or to any
specified place. Hence a notice can be given to the accused to appear before the
mediation centre. This restraint on arrest, and placing of conditions or terms
for arrest would also apply a fortiori to the accused family members of the
husband of the aggrieved wife.

It may be pointed out that if the FIR is immediately registered that will
placate the concerns of the aggrieved wife to some extent that action is being
taken on her complaint, and it has not been put on the back burner.

(3) Whether distinction possible between cases necessitating immediate arrest,
and cases where attempt for mediation should first be made

Arrest may be necessitated, if the husband or other in-laws have given a grave
beating to the wife endangering her life or where the wife has been subjected to
repeated violence or there are any other circumstances of exceptional cruelty
against the wife, where future recurrence of violence or cruelty seems likely,
or for preventing the husband and his accused family members from trying to
browbeat witnesses or to tamper with the course of justice, or for ensuring the
presence of the husband or his accused family members at the trial, or for
effective investigation. In all other cases, we are of the opinion that an
attempt should be first made for bringing about reconciliation between the
parties by directing the complainant wife and her natal family members and the
husband and other family members to appear before the Mediation Centre when the
wife or other eligible relations under section 198-A Cr.P.C. approaches the
police station for lodging the report.

The advantage of not immediately arresting the accused husband and his family
members in a trivial case where there appear to be no injuries on the aggrieved
wife, is that in sudden matrimonial disputes, because of clash of egos between
the wife and her natal family members and the husband and in-laws, the wife’s
side at the initial stage usually insists on effecting the arrests of the
husband and other in-laws. Once the husband or his family members are arrested,
and subsequently bailed out, little motivation remains for the parties to try
and resolve their disputes by mediation. This may prove disadvantageous for the
wife in the long run who may not have a source of independent livelihood for
running her life in the future.

4.Appropriate place where mediation should be conducted.
The officials as well as the learned Government Advocate and other lawyers
present unanimously recommended that the Mediation Cell should not be at the
police station. The I.G. (Public Grievances) pointed out that the police officer
before whom the report is lodged lack proper training for conducting mediations
sessions. Also if the police officer refrains from arresting the accused persons
pursuant to the wife’s FIR, by attempting to mediate in the dispute between the
parties, even if it is a case of no injury, and even where he is only acting in
accordance with the general directions of the Court, questions about his
integrity are unnecessarily raised.

Moreover it is pointed out by the Secretary of the Legal Services Authority that
now Mediation or Conciliation Centres have been established in all the District
Courts. We, therefore, think that the mediation proceedings should be carried
out in the said Mediation Centre.

5.Need for time frame for concluding the mediation proceedings.

The I.G. (Public Grievances) and others present rightly pointed out that a time
frame must be laid down for concluding the mediation proceedings as when an
aggrieved wife approaches the police for relief, because she has been subjected
to cruelty. If the matter is unduly prolonged in the mediation process, the
delay could act as a shield to protect the accused from facing the penalty of
law, causing frustration and bitterness for the aggrieved wife. Notice should as
far as possible be served personally on the accused and the parties should be
directed to appear before the Mediation Centre within a week or 10 days of the
lodging of the report by the aggrieved wife or family members. Thereafter we
think, that as far as possible, the mediation proceedings should be concluded
within two months of the first appearance of both the parties before the
Mediation Centre.

6.Who should be the members of the mediation cell in the district?

The Mediation Cell in the district should be headed by the Secretary of the
Legal Services Authority in the district, (at present, the Civil Judge, Senior
Division has been made the Secretary), other panel or retainer lawyers appointed
by the District Legal Services Authority, other lawyers, who volunteer for
giving free services before the Mediation centre, especially female lawyers
should also be made members of the Mediation Cell. It is also desirable to have
three or four social workers (especially female) in the Cell. A female police
officer of the rank of Dy. S.P. may also be appointed an ex-officio member of
the Mediation Cell.

7.Procedure to be followed by the police when a report of a cognizable offence
under section 498A IPC or allied provisions is reported

The report regarding commission of cognizable offence under section 498A IPC or
other allied sections may be lodged at the concerned police station where the
incident takes place or at the ‘Mahila Thana’ especially created in the district
for investigation of such cases. The police officer concerned will get the
aggrieved woman medically examined for injuries if the same are present. If the
report has been lodged at some police station other than the Mahila Thana, the
injury report and relevant police papers shall be forwarded to the Mahila Thana
for investigation of the case, and in appropriate cases the investigating police
officer at the Mahila Thana may refer the matter to the mediation centre in the
Civil Court, and direct the complainant to be present at the mediation centre on
a fixed date 7 to 10 days thereafter. The accused should as far as possible also
be personally given notice to appear before the mediation centre on the date
fixed. We would also like the presence of trained social workers (especially
female) or legal aid panel lawyers to be present at the Mahila Thana for
counselling the aggrieved woman and her family members for first trying to solve
their dispute by mediation, when the case is registered at the mahila thana. The
notice to the husband and other family members should mention that in cases the
husband or the family members of the aggrieved wife fail to appear on the date
fixed or on future dates, as directed by the Mediation Centre or fail to comply
with any condition that may be imposed by the police officer or Mediation
Centre, steps shall be taken for arresting the accused. The accused husband or
other in-laws should be directed to report before the police officer on a date
two months after the date of first appearance before the Mediation Centre and
inform the Police Officer about the progress in the mediation. The in-charge of
the mediation proceeding may also direct the husband or other family members to
appear before the Police Officer at an earlier date fixed in case mediation has
failed or it has been successfully concluded and the parties concerned shall
appear before the Police Officer on the said date. It would also be open to the
complainant wife to inform the police officer about the progress (or lack of it)
of the mediation process. The notice should also clarify that in case mediation
is pronounced as unsuccessful at an earlier date, and information is given by
either party or the Mediation centre to the Police Officer, he may require the
presence of the accused husband or his relations at an earlier date. If
mediation has been successfully concluded, it will be open to the Police Officer
to submit a final report in the matter. In cases, where it has not been
successfully concluded and the Police Officer is of the view that arrest may not
be necessary in a particular case, he may direct the accused persons to obtain
bail from the Competent Court. In case, he is of the opinion that the arrest is
necessitated at a subsequent stage, it will be open to the Police Officer to
take such accused persons in custody. He should of course record his reason for
making the said arrest as provided under section 41 (1) (b) (ii).

8.Necessity of training to mediators.

We endorse the opinion of the intervening lawyers, the learned Government
Advocate, Sri Ashok Mehta, Organizing Secretary of the Mediation Centre of the
Allahabad High Court and the Government officials present, including the
Secretary of the Legal Services Authority, that training for mediators is a sine
qua non for effective mediation. The Organizing Secretary of the Allahabad High
Court Mediation Centre (AHMC) and Secretary of the U.P. Legal Services Authority
(UPLSA) stated that the centre and authority are prepared to impart training to
the mediators. We welcome this offer and direct that there should be
co-ordianation between the AHMC and UPLSA for giving effect to this offer. By
and by as the State Government is able to create a cadre of trainers for
mediation, their services may also be utilised for training mediators in the
districts.

We think training is necessary because the responses to our queries from the
subordinate district courts reveal the poor success rate in the cases referred
by the High Court or where the concerned subordinate court has itself initiated
the process of mediation. By contrast the success rate at the Mediation Centre
in the Allahabad High Court, which has independent trained mediators (usually
lawyers) is much higher. The first requirement for successful mediation is the
patience on the part of the mediator, and his willingness to give sufficient
time to the contesting parties and especially to the wife to express her bottled
up grievances. Thereafter, in a disinterested manner, the mediator should
encourage the parties to come up with solutions, giving useful suggestions for
bringing about reconciliation, as the mediator cannot impose his solution on the
parties.
The guidelines hereinabove have been spelt out by the Court because of the
specific request of the officials and lawyers present to spell out the terms of
the same, as guidance for the State government (esp. the home department), the
Legal Services Authority and the police for issuing appropriate circulars or
government orders.

(9) Should offences under section 498-A IPC be made compoundable?

We have received considerable feedback from subordinate judicial authorities
that unless the offence under section 498-A IPC is made compoundable, much
benefit cannot be derived by trying to bring about mediation between the
parties. A dilemma then arises before the concerned Court, (which cannot close
the trial because the spouses have compromised their dispute) or even before the
aggrieved wife, if she decides to settle her dispute with her spouse and in-laws
either by agreeing to stay with them or to part amicably, usually after
receiving some compensation. Even if she is no more interested in repeatedly
visiting the court for prosecuting the accused, in the absence of provisions for
compounding the offence, she has willy nilly to perjure by making a false
statement that her initial report was untrue or lodged under influence of X or
Y. If on the basis of this statement the trial Court acquits the husband and his
family members, and the aggrieved wife returns to her matrimonial home, in the
cases where she is again maltreated, if she lodges a fresh report, its
reliability will be open to question.

The Apex Court in Ramgopal v. State of M.P., 2010 SCALE 711 observed that an
offence under section 498-A IPC is essentially private in nature, and it should
be made compoundable if the parties are willing to amicably settle their
dispute. Directions were given to the Law Commission of India to consider the
matter and to make appropriate recommendations to the Government to bring about
suitable amendments in the statute.

In Rajeev Verma v. State of U.P., 2004 Cri.L.J. 2956, which was a decision given
by a bench in which one of us (Amar Saran J) was a member, a similar suggestion
was made to the Law Commission of U.P. to recommend to the State government to
make the offence under section 498-A IPC compoundable with the permission of the
Court under section 320 Cr.P.C. The reasons for the suggestion were that such
FIRs are often lodged in the heat of the moment, without reflection after a
sudden quarrel, and sometimes as a result of wrong advice or influences. But the
complaining wife, who usually has no source of independent livelihood (as a key
problem in our society is the lack of economic and social empowerment of women)
and is unable to provide for herself in the future, may have to suffer later if
the relationship with her husband is irrevocably ruptured due to the hasty
filing of the criminal case, particularly in view of the fact that the offence
is non-compoundable. To meet this situation B.S. Joshi v State of Haryana, AIR
2003 SC 1386, Manoj Sharma v State, 2008 SC(Suppl) 1171, and Madan Mohan Abbot v
State of Punjab, AIR 2008 SC 1969 recommended quashing of the complaint in
proceedings under section 482 Cr.P.C or in the writ jurisdiction where the
aggrieved wife compounded the offence. In the latter case it was observed that
where the dispute is purely personal in nature, (i.e. the element of the offence
being a crime against society is secondary), and the wife decides to compound
the offence, as there would be little likelihood of conviction, quashing of the
offence should not be refused on the hyper-technical view that the offence was
non-compoundable “as keeping the matter alive with no possibility of a result in
favour of the prosecution is a luxury which the Courts, grossly overburdened as
they are, cannot afford and that the time so saved can be utilized in deciding
more effective and meaningful litigation”

The following passage in paragraph 12 in G.V. Rao v L.H.V. Prasad, AIR 2000 SC
2474 has been cited with approval in B.S. Joshi:
“There has been an outburst of matrimonial disputes in recent times. The
marriage is a sacred ceremony, the main purpose of which is to enable the young
couple to settle down in life and live peacefully. But little matrimonial
skirmishes suddenly erupt which often assume serious proportions resulting in
commission of heinous crimes in which elders of the family are also involved
with the result that those who could have counselled and brought about
rapprochement are rendered helpless on their being arrayed as accused in the
criminal case. There are many other reasons which need not be mentioned here for
not encouraging matrimonial litigation so that the parties may ponder over their
defaults and terminate their disputes amicably by mutual agreement instead of
fighting it out in a Court of law where it takes years and years to conclude and
in that process the parties lose their “young” days in chasing their “cases” in
different Courts.”

In Rajeev Verma however relying on B.S. Joshi it was mentioned that whilst the
trial could be quashed in an application under section 482 Cr.P.C or under
Article 226, being a fruitless prosecution where there was little likelihood of
conviction as the parties had settled their dispute, but the proper forum for
deciding the matter whether the compromise application was voluntary and bona
fide or whether it was coerced was the lower court which could decide whether it
was a fit case for granting permission to the wife to compound the offence under
section 320(2) Cr.P.C. This was only possible if the offence under s. 498-A IPC
was made compoundable with the permission of the Court.

A good option for providing recompense to the maltreated woman is “The
Protection of Women from Domestic Violence Act, 2005″ which provides for a gamut
of civil rights for the aggrieved woman who has entered into a domestic
relationship with a man, with or without marriage. Such civil rights include
“Protection orders” (section 18) prohibiting the respondent from committing any
act of violence, visiting the place of work, operating the common bank locker,
making telephonic contact etc. “Residence orders” (section 19), which restrain
the respondent from dispossessing a woman from the shared household, or from
alienating or renouncing his rights to the property or by directing him to
remove himself, or by providing alternate accommodation to the aggrieved woman
at the existing level. By providing “monetary reliefs” (sections 20 and 22) by
paying for loss of earnings or medical expenses, or loss due to destruction of
property by domestic violence, or for maintenance of the woman and her dependent
children, or by payment of compensation for causing injuries (including mental
torture). “Custody orders” (section 21) for custody of the child to the woman
(including visiting rights) for the respondent. Criminal proceedings under this
Act have been allowed only as a last resort, under section 31 when the
respondent commits a breach of a protection order, or where at the stage of
framing charges for breach of the protection order he finds that an offence
under section 498-A IPC has also been committed by the respondent.

The Act also provides under section 14 for the Magistrate to send a matter for
“counselling” before a registered “service provider,” who is qualified to
provide counselling in such matters to the contesting parties or to provide
shelter etc. to the aggrieved woman.

In the counter-affidavit dated 12.8.11 filed on behalf of the Home Secretary,
U.P., it has specifically been mentioned that the State government has given its
consent to the Union of India to make offences under section 498-A IPC
compoundable, and the letter of the Home (Police) Section-9 to the Union Home
Ministry dated 4.2.10 has been annexed. Whereas we appreciate this positive
attitude of the State government in not objecting to section 498-A IPC being
made a compoundable offence. However we find that Andhra Pradesh, by Act 11 of
2003 (w.e.f 1.8.03) has added section 498 A (wrongly described as 494 A) after
section 494 in the table in section 320(2) Cr.P.C. and has permitted the woman
subjected to cruelty to compound the offence with the permission of the Court,
but added a proviso that a minimum period of three months be allowed to elapse
from the date of application for compromise before a Court can accept the
request, provided any of the parties do not withdraw in the intervening period.

The U.P. government may consider bringing out a similar amendment, as it has
already expressed its opinion that the offence under section 498-A IPC be made
compoundable.

Before parting we must clarify that the Court is of the firm view that acts of
cruelty or violence against women have neither ceased, nor have they been
reduced, and the special provision for meeting this problem must be retained in
the statute book. We quote with approval the view expressed in paragraph 11 of
the recent Law Commission of India, Consultation Paper-cum-Questionaire
regarding section 498-A of Indian Penal Code:

“While the Commission is appreciative of the need to discourage unjustified and
frivolous complaints and the scourge of over-implication, it is not inclined to
take a view that dilutes the efficacy of s. 498-A to the extent of defeating its
purpose especially having regard to the fact that atrocities against women are
on the increase. A balanced and holistic view has to be taken on weighing the
pros and cons. There is no doubt a need to address the misuse situations and
arrive at a rational solution ? legislative or otherwise.”

List this case on 8.11.2011 before the regular bench to be headed by one of us
(Hon’ble Amar Saran J)

The State government through the Chief Secretary, U.P., the Principal Secretary,
(Home), U.P., Secretary Law/ L.R. U.P., Director General Police U.P., and
Member-Secretary, U.P. Legal Services Authority may issue appropriate guidelines
or circulars for laying down a system for proceeding in matters where reports
are lodged of commission of offences under section 498 A IPC where immediate
arrests may not be necessary, for laying down the appropriate criteria in this
regard, and for sending the matters for mediation before the mediation cells in
the Civil Courts, in accordance with the aforesaid directions of this Court. The
Principal Secretary, (Finance), U.P. may apprise the Court as to the provision
for finance for appointing social workers/panel lawyers at the Mahila Thanas,
for ensuring that appropriate training is given to the social workers, legal aid
lawyers, and concerned police officers for facilitating the mediation process,
for making available adequate infrastructure/ manpower at the mediation cells in
the Civil Courts, and for meeting expenses on other contingencies. Let the
aforesaid authorities submit their compliance reports within 4 weeks. We would
also like reports from all the Secretaries of the District Legal Services
Authorities to submit their compliance reports (through the District Judges) for
getting the aforementioned minor matters relating to offences under section 498
A IPC settled through mediation and the difficulties they encounter or forsee in
complying with the directions of this Court by the next listing. The State
government is also directed to submit its report on the next listing on the
suggestion of the Court to take steps for making the offence under section 498-A
IPC compoundable with the permission of Court by amending section 320 Cr.P.C in
U.P. as has been done in the case of Andhra Pradesh. Registrar-General is
directed to forward copies of this order within a week to the Chief Secretary,
Principal Secretary, (Home), Law Secretary/LR, U.P., Principal Secretary
(Finance), U.P., D.G.P., U.P., Member-Secretary, U.P., Legal Services Authority,
U.P., Secretaries/ Civil Judges (Senior Division) through District Judges in all
districts in U.P., Sri Ashok Mehta, Organizing Secretary, Allahabad High Court,
Mediation Centre, Sri Pankaj Naqvi, and Sister Sheeba Jose, Advocates for the
intervenors, Government Advocate, U.P. and other advocates and officials present
in the hearing on 8.8.11 for information and compliance.

Order Date :- 30.9.2011
HSM