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.

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.

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

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

READ THE WHOLE JUDGMENTS BELOW:

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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 2 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 3 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‟).

  1. 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.

  1. 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 5 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)

  1. The Bill seeks to achieve the above objectives.”
  2. Regarding the constitutionality of Section 498-A IPC, in Sushil Kumar Sharma v. Union of India and others1 , 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.”

  1. In B.S. Joshi and others v. State of Haryana and another2 , the Court observed:- 1 (2005) 6 SCC 281 : AIR 2005 SC 3100 2 (2003) 4 SCC 675 : AIR 2003 SC 1386 6

“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 nonexercise 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.”

  1. In Brij Lal v. Prem Chand and another3 , 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 7 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…”

 

  1. 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.
  2. 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.
  3. 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.
  4. 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 another4 , a recent pronouncement.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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. 12

(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.

  1. 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; 13

  1. 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;
  2. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  3. 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.”

  1. In the meanwhile, Writ Petition (Criminal) No. 156 of 2017 had been filed. A prayer had been made in the said Writ Petition to implement the suggestion that out of three members, at least two members should be appointed in the Family Welfare Committee. When this Writ Petition was listed on 13.10.2017, the following order came to be passed:-

“Mr. Alok Singh, learned counsel for the petitioner though has a different set of prayers in the writ petition, it fundamentally requires this Court to implement directions rendered in Criminal Appeal No.1265 of 2017 [Rajesh Sharma vs. State of U.P. and Another]. Additionally, learned counsel would submit that certain lady members, certain organizations and welfare committees are to be involved. At this stage, we are obligated to state that we are not in agreement with the decision rendered in Rajesh Sharma (supra) because we are disposed to think that it really curtails the rights of the women who are harassed under Section 498A of the Indian Penal Code. That apart, prima facie, we perceive that the guidelines may be in the legislative sphere. Issue notice to the respondent Nos.1 to 3. No notice need be issued to the respondent No.4. Even if the petitioner does not take steps, the Registry shall see to it that the respondents are served. Ms. Indu Malhotra and Mr. V. Shekhar, learned senior counsel are appointed as Amicus Curiae to assist the Court in the matter.

List the matter on 29th November, 2017.”

  1. Mr. V. Shekhar, learned senior counsel, was appointed as Amicus Curiae to assist the Court in the matter.
  2. 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.
  3. 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.
  4. 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.
  5. 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.”

  1. The said offence is a cognizable and non-bailable offence. This Court in Arnesh Kumar v. State of Bihar and another5 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.”

  1. The Court, thereafter, has drawn a distinction between the power to arrest and justification for the exercise of it and analysed Section 41 CrPC. Section 41 stipulates when police may arrest without warrant. The said provision reads as follows:-

“41. When police may arrest without warrant.—(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-

– (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing. Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.

(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonable suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable 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.”

  1. 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.”

  1. 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

  1. 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 :-

“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.”

  1. 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 others8 and State of M.P. v. Shyamsunder Trivedi and others9 , 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.”

  1. In Lalita Kumari v. Government of Uttar Pradesh and others10 , 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.”
  2. 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.
  3. 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.
  4. 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.”
  5. After so stating, the directions have been issued which we have reproduced in paragraph 15 hereinabove.
  6. 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.
  7. In Rajesh Sharma (supra), there is introduction of a third agency which has nothing to do with the Code and that apart, the Committees have been empowered to suggest a report failing which no arrest can be made. The directions to settle a case after it is registered is not a correct expression of law. A criminal proceeding which is not compundable can be quashed by the High Court under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC and the High Court, considering the bonafide of the petition, may quash the same. The power rests with the High Court. In this regard, we may reproduce a passage from a three-Judge Bench in Gian Singh (supra). In the said case, it has been held that:

– “61. … Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.:

(i) to secure the ends of justice, or

(ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim‟s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having 31 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.”

  1. 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 India14 , Vishaka and others v. State of Rajasthan and others15 and Common Cause (A Registered Society) v. Union of India and another16 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 32 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 others17 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 India18 (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 others20 , Rustom Cavasjee Cooper v. Union of India21 , Premium Granites and another v. State of T.N. and others22 , M.P. Oil Extraction and another v. State of M.P. and others23 , State of Madhya Pradesh v. Narmada Bachao Andolan and another24 and State of Punjab and others v. Ram Lubhaya Bagga and others25 , 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

  1. 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.
  2. 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.
  3. 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.
  4. 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
  5. 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.

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Thus, after careful consideration of the whole issue, we consider it fit to give following       directions :-

  1. 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.

 

  1. 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;

  1. 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;
  2. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  3. 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.

 

——————————————————————————————————————————————

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1265 OF 2017

[Arising out of Special Leave Petition (Crl.) No.2013 of 2017]

 

Rajesh Sharma & ors.                                         …Appellants

Versus

State of U.P. & Anr.                                         …Respondents

JUDGMENT

Adarsh Kumar Goel, J.

  1. Leave granted.
  2. The question which has arisen in this appeal is whether any directions are called for to prevent the misuse of Section 498A, as acknowledged in certain studies and decisions. The Court requested Shri A.S. Nadkarni, learned ASG and Shri V.V. Giri, learned senior counsel to assist the Court as amicus. We place on record our gratitude for the assistance rendered by learned ASG Signature Not Verified Digitally signed by SWETA DHYANI Shri Nadkarni and learned senior counsel Shri Giri who in turn was Date: 2017.07.27 17:07:01 IST Reason:

ably assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker.

  1. Proceedings have arisen from complaint dated 2 nd December, 2013 filed by respondent No.2 wife of appellant No.1. Appellants 2 to 5 are the parents and siblings of appellant No.1. The complainant alleged that she was married to appellant No.1 on 28th November, 2012. Her father gave dowry as per his capacity but the appellants were not happy with the extent of the dowry. They started abusing the complainant. They made a demand of dowry of Rs.3,00,000/- and a car which the family could not arrange. On 10th November, 2013, appellant No.1 dropped the complainant at her matrimonial home. She was pregnant and suffered pain in the process and her pregnancy was terminated. On the said version, and further version that her stridhan was retained, appellant No.1 was summoned under Section 498A and Section 323 IPC. Appellants 2 to 5 were not summoned. Order dated 14th July, 2014 read as follows:

 

“After perusal of the file and the document brought on record. It is clear that the husband Shri Rajesh Sharma demanded car and three lacs rupees and in not meeting the demand. It appears that he has tortured the complainant.

So far as torture and retaining of the stri dhan and demanding 50,000 and a gold chain and in not meeting the demand the torture is attributable against Shri Rajesh Sharma. Rajesh Sharma appears to be main accused. In the circumstances, rest of the accused Vijay Sharma, Jaywati Sharma, Praveen Sharma and Priyanka Sharma have not committed any crime and they have not participated in commission of the crime. Whereas, it appears that Rajesh Sharma has committed an offence under Section 498A, 323 IPC and read with section 3 / 4 DP act appears to have prima facie made out. Therefore, a summon be issued against him.”

  1. Against the above order, respondent No.2 preferred a revision petition and submitted that appellants 2 to 5 should also have been summoned. The said petition was accepted by the Additional Sessions Judge, Jaunpur vide order dated 3rd July, 2015. The trial court was directed to take a fresh decision in the matter. Thereafter, the trial court vide order dated 18th August, 2015 summoned appellants 2 to 5 also. The appellants approached the High Court under Section 482 CrPC against the order of summoning. Though the matter was referred to the mediation centre, the mediation failed. Thereafter, the High Court found no ground to interfere with the order of summoning and dismissed the petition. Hence this appeal.
  2. Main contention raised in support of this appeal is that there is need to check the tendency to rope in all family members to settle a matrimonial dispute. Omnibus allegations against all relatives of the husband cannot be taken at face value when in normal course it may only be the husband or at best his parents who may be accused of demanding dowry or causing cruelty. To check abuse of over implication, clear supporting material is needed to proceed against other relatives of a husband. It is stated that respondent No.2 herself left the matrimonial home. Appellant No.2, father of appellant No.1, is a retired government employee. Appellant No.3 is a house wife. Appellant No.4 is unmarried brother and appellant No.5 is unmarried sister who is a government employee. Appellants 2 to 5 had no interest in making any demand of dowry.
  3. Learned counsel for respondent No.2 supported the impugned order and the averments in the complaint.
  4. Learned ASG submitted that Section 498A was enacted to check unconscionable demands by greedy husbands and their families which at times result in cruelty to women and also suicides. He, however, accepted that there is a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings, grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury. At times, this results in harassment and even arrest of innocent family members, including women and senior citizens. This may hamper any possible reconciliation and reunion of a couple. Reference has been made to the statistics from the Crime Records Bureau (CRB) as follows:

 

“9. That according to Reports of National Crime Record Bureau in 2005, for a total 58,319 cases reported under Section 498A IPC, a total of 1,27,560 people were arrested, and 6,141 cases were declared false on account of mistake of fact or law. While in 2009 for a total 89,546 cases reported, a total of 1,74,395 people were arrested and 8,352 cases were declared false on account of mistake of fact or law.

  1. That according to Report of Crime in India, 2012 Statistics, National Crime Records Bureau, Ministry of Home Affairs showed that for the year of 2012, a total of 197,762 people all across India were arrested under Section 498A, Indian Penal Code. The Report further shows that approximately a quarter of those arrested were women that is 47,951 of the total were perhaps mother or sisters of the husband. However most surprisingly the rate of charge-sheet filing for the year 2012, under Section 498A IPC was at an exponential height of 93.6% while the conviction rate was at a staggering low at 14.4% only. The Report stated that as many as 3,72,706 cases were pending trial of which 3,17,000 were projected to be acquitted.
  2. That according to Report of Crime in India, 2013, the National Crime Records Bureau further pointed out that of 4,66,079 cases that were pending in the start of 2013, only 7,258 were convicted while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%.”
  3. Referring to Sushil Kumar Sharma versus Union of India1, Preeti Gupta versus State of Jharkhand 2, Ramgopal versus State of Madhya Pradesh3, Savitri Devi versus Ramesh Chand4, it was submitted that misuse of the provision is judicially acknowledged and there is need to adopt measures to prevent such misuse. The Madras High Court in M.P. No.1 of 2008 in Cr. O.P. No.1089 of 2008 dated 4th August, 2008 directed issuance of following guidelines:

 

“It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition 1 (2005) 6 SCC 281 2 (2010) 7 SCC 667 3 (2010) 13 SCC 540 4 ILR (2003) I Delhi 484 Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant. By suitably dealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers. The ultimate object of every legal system is to punish the guilty and protect the innocents.”

 

  1. Delhi High Court vide order dated 4th August, 2008 in Chander Bhan versus State5 in Bail Application No.1627/2008 directed issuance of following guidelines :

“2. Police Authorities:

(a) Pursuant to directions given by the Apex Court, the Commissioner of Police, Delhi vide Standing Order No.330/2007 had already issued guidelines for arrest in the dowry cases registered under Sections 498-A/406 IPC and the said guidelines should be followed by the Delhi Police strictly and scrupulously.

(i) No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl.DCP.

(ii) Arrest of main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP.

5 (2008) 151 DLT 691

(iii) Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law etc. should only be made after prior approval of DCP on file.

(b) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance.

(c) FIR in such cases should not be registered in a routine manner.

(d) The endavour of the Police should be to scrutinize complaints very carefully and then register FIR.

(e) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust.

(f) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the accused party to the complainant.”

  1. In Arnesh Kumar versus State of Bihar 6, this Court directed as follows :

 

“11.1All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

11.2 All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

6 (2014) 8 SCC 273 11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4 The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention; 11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing; 11.6 Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”

  1. Learned ASG suggested that there must be some preliminary inquiry on the lines of observations in Lalita Kumari versus Government of Uttar Pradesh7. Arrest of a relative other than husband could only be after permission from the concerned Magistrate. There should be no arrest of relatives aged above 70 years. Power of the police to straight away arrest must be prohibited. While granting permission, the court must ascertain that there is prima facie material of the accused having done some overt and covert act. The offence should be made compoundable and bailable. The role of each accused must be specified in the complaint and the complaint must be accompanied by a signed affidavit. The copy of the preliminary enquiry report should be furnished to the accused.
  2. Shri V. Giri, learned senior counsel assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker submitted that arrest in an offence under Section 498A should be only after recording reasons and express approval from the Superintendent of Police. In respect of relatives who are ordinarily residing outside India, the matter should proceed only if 7 (2014) 2 SCC 1 the IO is convinced that arrest is necessary for fair investigation. In such cases impounding of passport or issuance of red corner notice should be avoided. Procedure under Section 14 of the Protection of Women from Domestic Violence Act, 2005, of counseling should be made mandatory before registration of a case under Section 498A.
  3. We have given serious consideration to the rival submissions as well as suggestions made by learned ASG and Shri V. Giri, Senior Advocate assisted by Advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker. We have also perused 243rd Law Commission Report (August, 2012), 140 th Report of the Rajya Sabha Committee on Petition (September, 2011) as well as several decisions to which our attention has been invited.

 

  1. Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. The expression ‘cruelty’ in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand.8 It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted 9. The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the Judgment. The abuse of the 8 Explanation to Section 498A 9 Preeti Gupta (supra) provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled for arrests. Recommendation has also been made by the Law Commission to make the offence compoundable. 15. Following areas appear to require remedial steps :-
  2. i) Uncalled for implication of husband and his relatives and arrest.
  3. ii) Continuation of proceedings in spite of settlement

between     the  parties  since   the   offence     is

non-compoundable and uncalled for hardship to parties on that account.

  1. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable.10 Just and fair procedure being part of fundamental right to life,11 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a 10 Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India (2012) 10 SCC 603- para 52, SCBA v. Union of India (1998) 4 SCC 409- para 47, Union of India vs. Raghubir Singh (d) by Lrs. (1989) 2 SCC 754- para 7, Dayaram vs. Sudhir Batham (2012) 1 SCC 333 11 State of Punjab vs. Dalbir Singh (2012) 3 SCC 346- para 46,52 & 85, (2014) 4 SCC 453- para-21 non-compoundable case of private nature, if continuing the proceedings is found to be oppressive. 12 While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.

 

  1. 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.
  2. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned 12 Gian Singh vs. State of Punjab (2012) 10 SCC 303- para-61, (2014) 5 SCC 364- para -14 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.
  3. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-
  4. 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.

 

  1. 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;

  1. 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;
  2. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  3. 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.

  1. After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018.
  2. Copies of this order be sent to National Legal Services Authority, Director General of Police of all the States and the Registrars of all the High Courts for further appropriate action.
  3. It will be open to the parties in the present case to approach the concerned trial or other court for further orders in the light of the above directions.

 

…………………………………….J.

 

(Adarsh Kumar Goel) …………………………………….J.

 

(Uday Umesh Lalit) New Delhi;

 

cropped-leges-juris-associates.jpg

There is phenomenal increase in matrimonial disputes in recent years.
The institution of marriage is greatly revered in this country. Section
498-A of the IPC was introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and his relatives. The
fact that Section 498-A 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. In a
quite number of cases, bed-ridden grand-fathers and grand-mothers of the
husbands, their sisters living abroad for decades are arrested. “Crime in
India 2012 Statistics” published by National Crime Records Bureau,
Ministry of Home Affairs shows arrest of 1,97,762 persons all over India
during the year 2012 for offence under Section 498-A of the IPC, 9.4% more
than the year 2011. Nearly a quarter of those arrested under this
provision in 2012 were women i.e. 47,951 which depicts that mothers and
sisters of the husbands were liberally included in their arrest net. Its
share is 6% out of the total persons arrested under the crimes committed
under Indian Penal Code. It accounts for 4.5% of total crimes committed
under different sections of penal code, more than any other crimes
excepting theft and hurt. The rate of charge-sheeting in cases under
Section 498A, IPC is as high as 93.6%, while the conviction rate is only
15%, which is lowest across all heads. As many as 3,72,706 cases are
pending trial of which on current estimate, nearly 3,17,000 are likely to
result in acquittal.

 

Arrest brings humiliation, curtails freedom and cast scars forever.
Law makers know it so also the police. There is a battle between the law
makers and the police and it seems that police has not learnt its lesson;
the lesson implicit and embodied in the Cr.PC. It has not come out of its
colonial image despite six decades of independence, it is largely
considered as a tool of harassment, oppression and surely not considered a
friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by 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.

———————————————————————————————————————————————————————————————————

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)
ARNESH KUMAR ….. APPELLANT
VERSUS
STATE OF BIHAR & ANR. …. RESPONDENTS
J U D G M E N T
Chandramauli Kr. Prasad
The petitioner apprehends his arrest in a case under Section 498-A of
the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of
the Dowry Prohibition Act, 1961. The maximum sentence provided under
Section 498-A IPC is imprisonment for a term which may extend to three
years and fine whereas the maximum sentence provided under Section 4 of the
Dowry Prohibition Act is two years and with fine.
Petitioner happens to be the husband of respondent no.2 Sweta Kiran.
The marriage between them was solemnized on 1st July, 2007. His attempt to
secure anticipatory bail has failed and hence he has knocked the door of
this Court by way of this Special Leave Petition.
Leave granted.
In sum and substance, allegation levelled by the wife against the
appellant is that demand of Rupees eight lacs, a maruti car, an
air-conditioner, television set etc. was made by her mother-in-law and
father-in-law and when this fact was brought to the appellant’s notice, he
supported his mother and threatened to marry another woman. It has been
alleged that she was driven out of the matrimonial home due to non-
fulfilment of the demand of dowry.
Denying these allegations, the appellant preferred an application for
anticipatory bail which was earlier rejected by the learned Sessions Judge
and thereafter by the High Court.
There is phenomenal increase in matrimonial disputes in recent years.
The institution of marriage is greatly revered in this country. Section
498-A of the IPC was introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and his relatives. The
fact that Section 498-A 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. In a
quite number of cases, bed-ridden grand-fathers and grand-mothers of the
husbands, their sisters living abroad for decades are arrested. “Crime in
India 2012 Statistics” published by National Crime Records Bureau,
Ministry of Home Affairs shows arrest of 1,97,762 persons all over India
during the year 2012 for offence under Section 498-A of the IPC, 9.4% more
than the year 2011. Nearly a quarter of those arrested under this
provision in 2012 were women i.e. 47,951 which depicts that mothers and
sisters of the husbands were liberally included in their arrest net. Its
share is 6% out of the total persons arrested under the crimes committed
under Indian Penal Code. It accounts for 4.5% of total crimes committed
under different sections of penal code, more than any other crimes
excepting theft and hurt. The rate of charge-sheeting in cases under
Section 498A, IPC is as high as 93.6%, while the conviction rate is only
15%, which is lowest across all heads. As many as 3,72,706 cases are
pending trial of which on current estimate, nearly 3,17,000 are likely to
result in acquittal.
Arrest brings humiliation, curtails freedom and cast scars forever.
Law makers know it so also the police. There is a battle between the law
makers and the police and it seems that police has not learnt its lesson;
the lesson implicit and embodied in the Cr.PC. It has not come out of its
colonial image despite six decades of independence, it is largely
considered as a tool of harassment, oppression and surely not considered a
friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by 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.
Law Commissions, Police Commissions and this Court in a large number
of judgments emphasized the need to maintain a balance between individual
liberty and societal order while exercising the power of arrest. Police
officers make arrest as they believe that they possess the power to do so.
As the arrest curtails freedom, brings humiliation and casts scars forever,
we feel differently. We believe that no arrest should be made only
because the offence is non-bailable and cognizable and therefore, lawful
for the police officers to do so. The existence of the power to arrest is
one thing, the justification for the exercise of it is quite another. Apart
from power to arrest, the police officers must be able to justify the
reasons thereof. 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 and wise for a police officer that no arrest is made without a
reasonable satisfaction reached after some investigation as to the
genuineness of the allegation. Despite this legal position, the Legislature
did not find any improvement. Numbers of arrest have not decreased.
Ultimately, the Parliament had to intervene and on the recommendation of
the 177th Report of the Law Commission submitted in the year 2001, Section
41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present
form came to be enacted. It is interesting to note that such a
recommendation was made by the Law Commission in its 152nd and 154th Report
submitted as back in the year 1994. The value of the proportionality
permeates the amendment relating to arrest. As the offence with which we
are concerned in the present appeal, provides for a maximum punishment of
imprisonment which may extend to seven years and fine, Section 41(1)(b),
Cr.PC which is relevant for the purpose 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)x x x x x x
(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) x x x x x
(ii) the police officer is satisfied that such arrest is necessary –
to prevent such person from committing any further offence; or
for proper investigation of the offence; or
to prevent such person 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 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
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.
X x x x x x
From a plain reading of the aforesaid provision, it is evident that a
person accused of 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 its satisfaction
that such person had committed the offence punishable as aforesaid. Police
officer before arrest, in such cases has to be further satisfied that such
arrest is necessary to prevent such person from committing any further
offence; or for proper investigation of the case; or to prevent the accused
from causing the evidence of the offence to disappear; or tampering with
such evidence in any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the Court or the police officer; or unless such
accused person is arrested, his presence in the court whenever required
cannot be ensured. These are the conclusions, which one may reach based on
facts. Law mandates the police officer to state the facts and record the
reasons in writing which led him to come to a conclusion covered by any of
the provisions aforesaid, while making such arrest. Law further requires
the police officers to record the reasons in writing for not making the
arrest. In pith and core, the police office 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 of Cr.PC.
An accused arrested without warrant by the police has the
constitutional right under Article 22(2) of the Constitution of India and
Section 57, Cr.PC to be produced before the Magistrate without unnecessary
delay and in no circumstances beyond 24 hours excluding the time necessary
for the journey. During the course of investigation of a case, an accused
can be kept in detention beyond a period of 24 hours only when it is
authorised by the Magistrate in exercise of power under Section 167 Cr.PC.
The power to authorise detention is a very solemn function. It affects the
liberty and freedom of citizens and needs to be exercised with great care
and caution. Our experience tells us that it is not exercised with the
seriousness it deserves. In many of the cases, detention is authorised in a
routine, casual and cavalier manner. Before a Magistrate authorises
detention under Section 167, Cr.PC, he has to be first satisfied that the
arrest made is legal and in accordance with law and all the constitutional
rights of the person arrested is satisfied. If the arrest effected by the
police officer does not satisfy the requirements of Section 41 of the Code,
Magistrate is duty bound not to authorise his further detention and release
the accused. In other words, when an accused is produced before the
Magistrate, the police officer effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its conclusions for arrest and
the Magistrate in turn is to be satisfied that condition precedent for
arrest under Section 41 Cr.PC has been satisfied and it is only thereafter
that he will authorise the detention of an accused. The Magistrate before
authorising detention will record its own satisfaction, may be in brief but
the said satisfaction must reflect from its order. It shall never be
based upon the ipse dixit of the police officer, for example, in case the
police officer considers the arrest necessary to prevent such person from
committing any further offence or for proper investigation of the case or
for preventing an accused from tampering with evidence or making inducement
etc., the police officer shall furnish to the Magistrate the facts, the
reasons and materials on the basis of which the police officer had reached
its conclusion. Those shall be perused by the Magistrate while authorising
the detention and only after recording its satisfaction in writing that the
Magistrate will authorise the detention of the accused. In fine, when a
suspect is arrested and produced before a Magistrate for authorising
detention, the Magistrate has to address the question whether specific
reasons have been recorded for arrest and if so, prima facie those reasons
are relevant and secondly a reasonable conclusion could at all be reached
by the police officer that one or the other conditions stated above are
attracted. To this limited extent the Magistrate will make judicial
scrutiny.
Another provision i.e. Section 41A Cr.PC aimed to avoid
unnecessary arrest or threat of arrest looming large on accused requires to
be vitalised. Section 41A as inserted by Section 6 of the Code of
Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant
in the context reads as follows:
“41A. Notice of appearance before police officer.-(1) The police officer
shall, in all cases where the arrest of a person is not required under the
provisions of sub-section (1) of Section 41, issue a notice directing the
person against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such other place
as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of
that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he
shall not be arrested in respect of the offence referred to in the notice
unless, for reasons to be recorded, the police officer is of the opinion
that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the
notice or is unwilling to identify himself, the police officer may, subject
to such orders as may have been passed by a competent Court in this behalf,
arrest him for the offence mentioned in the notice.”
Aforesaid provision makes it clear that in all cases where the
arrest of a person is not required under Section 41(1), Cr.PC, 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 office is of the opinion that the arrest
is necessary. At this stage also, the condition precedent for arrest as
envisaged under Section 41 Cr.PC has to be complied and shall be subject to
the same scrutiny by the Magistrate as aforesaid.
We are of the opinion that if the provisions of Section 41,
Cr.PC 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 Cr.PC for effecting arrest be
discouraged and discontinued.
Our endeavour in this judgment is to ensure that police officers do not
arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed above,
we give the following direction:
All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPC is
registered but to satisfy themselves about the necessity for arrest under
the parameters laid down above flowing from Section 41, Cr.PC;
All police officers be provided with a check list containing specified sub-
clauses under Section 41(1)(b)(ii);
The police officer shall forward the check list duly filed and furnish the
reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;
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;
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;
Notice of appearance in terms of Section 41A of Cr.PC be served on the
accused within two weeks from the date of institution of the case, which
may be extended by the Superintendent of Police of the District for the
reasons to be recorded in writing;
Failure to comply with the directions aforesaid shall apart from rendering
the police officers concerned liable for departmental action, they shall
also be liable to be punished for contempt of court to be instituted before
High Court having territorial jurisdiction.
Authorising detention without recording reasons as aforesaid by the
judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the
cases under Section 498-A of the I.P.C. or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such cases where offence is
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.
We direct that a copy of this judgment be forwarded to the Chief
Secretaries as also the Director Generals of Police of all the State
Governments and the Union Territories and the Registrar General of all the
High Courts for onward transmission and ensuring its compliance.
By order dated 31st of October, 2013, this Court had granted
provisional bail to the appellant on certain conditions. We make this order
absolute.
In the result, we allow this appeal, making our aforesaid order dated 31st
October, 2013 absolute; with the directions aforesaid.
………………………………………………………………J
(CHANDRAMAULI KR. PRASAD)
………………………………………………………………J
(PINAKI CHANDRA GHOSE)
NEW DELHI,
July 2, 2014.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1674 OF 2012
(Arising out of SLP (Crl.) No. 10547/2010)
Geeta Mehrotra & Anr. ..Appellants
Versus
State of U.P. & Anr. . Respondents
J U D G M E N T
GYAN SUDHA MISRA, J.
1. This appeal by special leave in which we granted leave has been filed by the appellants against the order dated 6.9.2010 passed by the High Court of Judicature at Allahabad in Crl. Miscellaneous Application No.22714/2007 whereby the High Court had been pleased to dispose of the application moved by the appellants under Section 482 Cr.P.C. for quashing the order of the Magistrate taking cognizance against the appellants under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act with an observation that the question of territorial jurisdiction cannot be properly decided by the High Court under Section 482 Cr.P.C. for want of adequate facts. It was, therefore, left open to the appellants to move the trial court for dropping the proceedings on the ground of lack of territorial jurisdiction. The High Court however granted interim protection to the appellants by directing the authorities not to issue coercive process against the appellants until disposal of the application filed by the appellants with a further direction to the trial court to dispose of the application if moved by the appellants, within a period of two months from the date of moving the application. The application under Section 482 Cr.P.C. was thus disposed of by the High Court.
2. The appellants in spite of the liberty granted to them to move the trial court, have filed this appeal for quashing the proceedings which had been initiated on the basis of a case lodged by the respondent No.2 Smt. Shipra Mehrotra (earlier known as Shipra Seth) against her husband, father-in-law, mother-in-law, brother-in-law and sister-in-law. This appeal has been preferred by the sister-in- law, who is appellant No.1 and brother-in-law of the complainant, who is appellant No.2.
3. The case emerges out of the first information report lodged by respondent No.2 Smt. Shipra Mehrotra under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act bearing F.I.R.No. 52/2004. The F.I.R. was registered at Mahila Thana Daraganj, Allahabad wherein the complainant alleged that she was married to Shyamji Mehrotra s/o Balbir Saran who was living at Eros Garden, Charmswood Village, Faridabad, Suraj Kund Road at Faridabad Haryana as per the Hindu marriage rites and customs. Prior to marriage the complainant and her family members were told by Shyamji Mehrotra and his elder brother Ramji Mehrotra who is appellant No.2 herein and their mother Smt. Kamla Mehrotra and her sister Geeta Mehrotra who is appellant No.1 herein that Shyamji is employed as a Team Leader in a top I.T. Company in Chennai and is getting salary of Rs.45,000/- per month. After negotiation between the parents of the complainant and the accused parties, the marriage of the complainant Shipra Seth (later Shipra Mehrotra) and Shyamji Mehrotra was performed after which the respondent-complainant left for the house of her in- laws.
4. It was stated that the atmosphere in the house was peaceful for sometime but soon after the wedding, when all the relatives left, the maid who cooked meals was first of all paid-off by the aforesaid four persons who then told the complainant that from now onwards, the complainant will have to prepare food for the family. In addition, the above mentioned people started taunting and scolding her on trivial issues. The complainant also came to know that Shyamji was not employed anywhere and always stayed in the house. Shyamji gradually took away all the money which the complainant had with her and then told her that her father had not given dowry properly, therefore, she should get Rupees five lakhs from her father in order to enable him to start business, because he was not getting any job. When the complainant clearly declined and stated that she will not ask her parents for money, Shyamji, on instigation of other accused-family members, started beating her occasionally. To escape every day torture and financial status of the family, the complainant took up a job in a Call Centre at Convergys on 17.2.2003 where the complainant had to do night shifts due to which she used to come back home at around 3 a.m. in the morning. Just on her return from work, the household people started playing bhajan cassettes after which she had to getup at 7’o clock in the morning to prepare and serve food to all the members in the family. Often on falling asleep in the morning, Shyamji, Kamla Devi and Geeta Mehrotra tortured the complainant every day mentally and physically. Ramji Mehrotra often provoked the other three family members to torture and often used to make the complainant feel sad by making inappropriate statements about the complainant and her parents. Her husband Shyamji also took away the salary from the complainant.
5. After persistent efforts, Shyamji finally got a job in Chennai and he went to Chennai for the job in May, 2003. But, it is alleged that there was no change in his behaviour even after going to Chennai. The complainant often called him on phone to talk to him but he always did irrelevant conversation. He never spoke properly with the complainant whenever he visited home and often used to hurl filthy abuses. The complainant states that she often wept and tolerated the tortures of the accused persons for a long time but did not complain to her family members, as that would have made them feel sad. At last, when the complainant realized that even her life was in danger, she was compelled to tell everything to her father on phone who was very upset on hearing her woes. On 15.7.2003 complainant heard some conversation of her mother-in-law and sister-in-law from which it appeared to her that they want to kill the complainant in the night only. Thereupon the complainant apprised her father of the situation on phone to which her father replied that he will call back her father-in-law and she should go with him immediately and he will come in the morning. The father-in-law Satish Dhawan and his wife who were living in NOIDA thereafter came in the night and somehow took the complainant to their home who also came to know of everything. The complainant’s father and brother later went to her matrimonial home on 16.7.2003. On seeing her father and brother, Kamla Mehrotra and Geeta Mehrotra started speaking loudly and started saying that Shyamji would be coming by the evening and so he should come in the evening for talking to them. Her father and brother then went away from there. That very day, her husband Shyamji and brother-in-law Ramji also reached home. On reaching there, Shyamji abused her on phone and told her to send her father.
6. When father and brother of the complainant went home in the evening, they were also insulted by all the four and video camera and tape were played and in the end they were told that they should leave from here. Insulted, they came back from there and then came back to Allahabad with the complainant. For many days the complainant and her family members hoped that the situation would improve if the matter was resolved. Many times other people tried to persuade the in – laws but to no avail. Her brother went to their house to talk to her in – laws but it came to his knowledge that the in – laws had changed their house. After much effort, they came to know that the father-in- law and mother-in-law started living at B-39, Brahma cooperative group housing society, block 7, sector-7, Dwarka, Delhi. On 19.09.04 evening, her father talked to Kamla Mehrotra and Geeta Mehrotra regarding the complainant using bad words and it was said that if her daughter came there she will be kicked out. After some time Shyamji rang up at complainant’s home but on hearing the complainant’s voice, he told her abusively that now she should not come his way and she should tell her father not to phone him in future. At approximately 10:30 pm in the night Ramji’s phone came to the complainant’s home. He used bad words while talking to her father and in the end said that he had got papers prepared in his defence and he may do whatever he could but if he could afford to give Rs.10 lakhs then it should be conveyed after which he will reconsider the matter. If the girl was sent to his place without money, then even her dead body will not be found.
7. On hearing these talks of the accused, the complainant believed that her in-laws will not let the complainant enter their home without taking ten lakhs and if the complainant went there on her own, she will not be safe. Hence, she lodged the report wherein she prayed that the SHO Daraganj should be ordered to do the needful after registering the case against the accused Shyam Mehrotra, Ramji Mehrotra, Kamla Mehrotra and Geeta Mehrotra. Thus, in substance, the complainant related the bickering at her matrimonial home which made her life miserable in several ways and compelled her to leave her in- law’s place in order to live with her father where she lodged a police case as stated hereinbefore.
8. On the basis of the complaint, the investigating authorities at P.S. Daraganj, Allahabad started investigation of the case and thereafter the police submitted chargesheet against the appellants and other family members of the complainant’s husband.
9. Hence, the appellants who are sister and brother of the complainant’s husband filed petition under Section 482 Cr.P.C. for quashing of the chargesheet and the entire proceedings pending in the court of learned Judicial Magistrate, Court No.IV, Allahabad, inter- alia, on the ground that FIR has been lodged with mala fide intentions to harass the appellants and that no case was made out against the appellants as well as other family members. But the principal ground of challenge to the FIR was that the incident although was alleged to have taken place at Faridabad and the investigation should have been done there only, the complainant with mala fide intention in connivance with the father of the complainant, got the investigating officer to record the statements by visiting Ghaziabad which was beyond his territorial jurisdiction and cannot be construed as legal and proper investigation. It was also alleged that the father of the complainant got the arrest warrant issued through George Town Police Station, Allahabad, in spite of the cause of action having arisen at Allahabad.
10. This appeal has been preferred by Kumari Geeta Mehrotra i.e. the sister of the complainant’s husband and Ramji Mehrotra i.e. the elder brother of the complainant’s husband assailing the order of the High Court and it was submitted that the Hon’ble High Court ought to have appreciated that the complainant who had already obtained an ex-parte decree of divorce, is pursuing the present case through her father with the sole purpose to unnecessarily harass the appellants to extract money from them as all efforts of mediation had failed.
11. However, the grounds of challenge before this Court to the order of the High Court, inter alia is that the High Court had failed to appreciate that the investigation had been done by the authority without following due process of law which also lacked territorial jurisdiction. The relevant documents/parcha diary for deciding the territorial jurisdiction had been overlooked as the FIR has been lodged at Allahabad although the cause of action of the entire incident is alleged to have taken place at Faridabad (Haryana). It was, therefore, submitted that the investigating authorities of the Allahabad have traversed beyond the territorial limits which is clearly an abuse of the process of law and the High Court has failed to exercise its inherent powers under Section 482 Cr.P.C. in the facts and circumstances of this case and allowed the proceedings to go on before the trial court although it had no jurisdiction to adjudicate the same.
12. It was further averred that the High Court had failed to examine the facts of the FIR to see whether the facts stated in the FIR constitute any prima facie case making out an offence against the sister-in-law and brother-in-law of the complainant and whether there was at all any material to constitute an offence against the appellants and their family members. Attention of this Court was further invited to the contradictions in the statement of the complainant and her father which indicate material contradictions indicating that the complainant and her father have concocted the story to implicate the appellants as well as all their family members in a criminal case merely with a mala fide intention to settle her scores and extract money from the family of her ex-husband Shyamji Mehrotra and his family members.
13. On a perusal of the complaint and other materials on record as also analysis of the arguments advanced by the contesting parties in the light of the settled principles of law reflected in a catena of decisions, it is apparent that the High Court has not applied its mind on the question as to whether the case was fit to be quashed against the appellants and has merely disposed of the petition granting liberty to the appellants to move the trial court and raise contentions on the ground as to whether it has territorial jurisdiction to continue with the trial in the light of the averment that no part of the cause of action had arisen at Allahabad and the entire incident even as per the FIR had taken place at Faridabad.
14. The High Court further overlooked the fact that during the pendency of this case, the complainant-respondent No.2 has obtained an ex-parte decree of divorce against her husband Shyamji Mehrotra and the High Court failed to apply its mind whether any case could be held to have been made out against Kumari Geeta Mehrotra and Ramji Mehrotra, who are the unmarried sister and elder brother of the complainant’s ex-husband. Facts of the FIR even as it stands indicate that although a prima facie case against the husband Shyamji Mehrotra and some other accused persons may or may not be constituted, it surely appears to be a case where no ingredients making out a case against the unmarried sister of the accused Shyamji Mehrotra and his brother Ramji Mehrotra appear to be existing for even when the complainant came to her in-law’s house after her wedding, she has alleged physical and mental torture by stating in general that she had been ordered to do household activities of cooking meals for the whole family. But there appears to be no specific allegation against the sister and brother of the complainant’s husband as to how they could be implicated into the mutual bickering between the complainant and her husband Shyamji Mehrotra including his parents.
15. Under the facts and circumstance of similar nature in the case of Ramesh vs. State of Tamil Nadu reported in (2005) SCC (Crl.) 735 at 738 allegations were made in a complaint against the husband, the in-laws, husband’s brother and sister who were all the petitioners before the High Court wherein after registration of the F.I.R. and investigation, the charge sheet was filed by the Inspector of Police in the court of Judicial Magistrate III, Trichy. Thereupon, the learned magistrate took cognizance of the offence and issued warrants against the appellants on 13.2.2002. Four of the accused-appellants were arrested and released on bail by the magistrate at Mumbai. The appellants had filed petition under Section 482, Cr.P.C. before the Madras High Court for quashing the proceedings in complaint case on the file of the Judicial Magistrate III, Trichy. The High Court by the impugned order dismissed the petition observing that the grounds raised by the petitioners were all subject matters to be heard by the trial court for better appreciation after conducting full trial as the High Court was of the view that it was only desirable to dismiss the criminal original petition and the same was also dismissed. However, the High Court had directed the Magistrate to dispense with the personal attendance of the appellants.
16. Aggrieved by the order of the Madras High Court dismissing the petition under Section 482 Cr.P.C., the special leave petition was filed in this Court giving rise to the appeals therein where threefold contentions were raised viz., (i) that the allegations are frivolous and without any basis; (ii) even according to the FIR, no incriminating acts were done within the jurisdiction of Trichy Police Station and the court at Trichy and, therefore, the learned magistrate lacked territorial jurisdiction to take cognizance of the offence and (iii) taking cognizance of the alleged offence at that stage was barred under Section 468(1) Cr.P.C. as it was beyond the period of limitation prescribed under Section 468(2) Cr.P.C. Apart from the subsequent two contentions, it was urged that the allegations under the FIR do not make out any offence of which cognizance could be taken.
17. Their Lordships of the Supreme Court in this matter had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet, none of the alleged offences under Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly not living with the family of the complainant’s husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.
18. In so far as the plea of territorial jurisdiction is concerned, it is no doubt true that the High Court was correct to the extent that the question of territorial jurisdiction could be decided by the trial court itself. But this ground was just one of the grounds to quash the proceedings initiated against the appellants under Section 482 Cr.P.C. wherein it was also alleged that no prima facie case was made out against the appellants for initiating the proceedings under the Dowry Prohibition Act and other provisions of the IPC. The High Court has failed to exercise its jurisdiction in so far as the consideration of the case of the appellants are concerned, who are only brother and sister of the complainant’s husband and are not alleged even by the complainant to have demanded dowry from her. The High Court, therefore, ought to have considered that even if the trial court at Allahabad had the jurisdiction to hold the trial, the question still remained as to whether the trial against the brother and sister of the husband was fit to be continued and whether that would amount to abuse of the process of the court.
19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.
20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:
“there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”
The view taken by the judges in this matter was that the courts would not encourage such disputes.
21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.
22. In the instant matter, when the complainant and her husband are divorced as the complainant-wife secured an ex-parte decree of divorce, the same could have weighed with the High Court to consider whether proceeding initiated prior to the divorce decree was fit to be pursued in spite of absence of specific allegations at least against the brother and sister of the complainant’s husband and whether continuing with this proceeding could not have amounted to abuse of the process of the court. The High Court, however, seems not to have examined these aspects carefully and have thus side- tracked all these considerations merely on the ground that the territorial jurisdiction could be raised only before the magistrate conducting the trial.
23. In the instant case, the question of territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the High Court to consider all these aspects. But in matters arising out of a criminal case, fresh consideration by remanding the same would further result into a protracted and vexatious proceeding which is unwarranted as was held by this Court in the case of Ramesh vs. State of Tamil Nadu (supra) that such a course of remand would be unnecessary and inexpedient as there was no need to prolong the controversy. The facts in this matter on this aspect was although somewhat different since the complainant had lodged the complaint after seven years of delay, yet in the instant matter the factual position remains that the complaint as it stands lacks ingredients constituting the offence under Section 498A and Section 3/4 Dowry Prohibition Act against the appellants who are sister and brother of the complainant’s husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them.
24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.
25. In the case at hand, when the brother and unmarried sister of the principal accused Shyamji Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498A,/323/504/506 including Sections 3/4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court.
26. The High Court in our considered opinion appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498A/323/504/506, IPC and Sections 3/4 of the Dowry Prohibition Act.
27. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant’s husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed.
……………………………J
(T.S. Thakur)
……………………………J
(Gyan Sudha Misra)
New Delhi,
October 17, 2012

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

“However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1674 OF 2012

(Arising out of SLP (Crl.) No. 10547/2010)

Geeta Mehrotra & Anr. ..Appellants

Versus

State of U.P. & Anr. . Respondents

J U D G M E N T

GYAN SUDHA MISRA, J.

1. This appeal by special leave in which we granted leave has been filed by the appellants against the order dated 6.9.2010 passed by the High Court of Judicature at Allahabad in Crl. Miscellaneous Application No.22714/2007 whereby the High Court had been pleased to dispose of the application moved by the appellants under Section 482 Cr.P.C. for quashing the order of the Magistrate taking cognizance against the appellants under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act with an observation that the question of territorial jurisdiction cannot be properly decided by the High Court under Section 482 Cr.P.C. for want of adequate facts. It was, therefore, left open to the appellants to move the trial court for dropping the proceedings on the ground of lack of territorial jurisdiction. The High Court however granted interim protection to the appellants by directing the authorities not to issue coercive process against the appellants until disposal of the application filed by the appellants with a further direction to the trial court to dispose of the application if moved by the appellants, within a period of two months from the date of moving the application. The application under Section 482 Cr.P.C. was thus disposed of by the High Court.

2. The appellants in spite of the liberty granted to them to move the trial court, have filed this appeal for quashing the proceedings which had been initiated on the basis of a case lodged by the respondent No.2 Smt. Shipra Mehrotra (earlier known as Shipra Seth) against her husband, father-in-law, mother-in-law, brother-in-law and sister-in-law. This appeal has been preferred by the sister-in- law, who is appellant No.1 and brother-in-law of the complainant, who is appellant No.2.

3. The case emerges out of the first information report lodged by respondent No.2 Smt. Shipra Mehrotra under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act bearing F.I.R.No. 52/2004. The F.I.R. was registered at Mahila Thana Daraganj, Allahabad wherein the complainant alleged that she was married to Shyamji Mehrotra s/o Balbir Saran who was living at Eros Garden, Charmswood Village, Faridabad, Suraj Kund Road at Faridabad Haryana as per the Hindu marriage rites and customs. Prior to marriage the complainant and her family members were told by Shyamji Mehrotra and his elder brother Ramji Mehrotra who is appellant No.2 herein and their mother Smt. Kamla Mehrotra and her sister Geeta Mehrotra who is appellant No.1 herein that Shyamji is employed as a Team Leader in a top I.T. Company in Chennai and is getting salary of Rs.45,000/- per month. After negotiation between the parents of the complainant and the accused parties, the marriage of the complainant Shipra Seth (later Shipra Mehrotra) and Shyamji Mehrotra was performed after which the respondent-complainant left for the house of her in- laws.

4. It was stated that the atmosphere in the house was peaceful for sometime but soon after the wedding, when all the relatives left, the maid who cooked meals was first of all paid-off by the aforesaid four persons who then told the complainant that from now onwards, the complainant will have to prepare food for the family. In addition, the above mentioned people started taunting and scolding her on trivial issues. The complainant also came to know that Shyamji was not employed anywhere and always stayed in the house. Shyamji gradually took away all the money which the complainant had with her and then told her that her father had not given dowry properly, therefore, she should get Rupees five lakhs from her father in order to enable him to start business, because he was not getting any job. When the complainant clearly declined and stated that she will not ask her parents for money, Shyamji, on instigation of other accused-family members, started beating her occasionally. To escape every day torture and financial status of the family, the complainant took up a job in a Call Centre at Convergys on 17.2.2003 where the complainant had to do night shifts due to which she used to come back home at around 3 a.m. in the morning. Just on her return from work, the household people started playing bhajan cassettes after which she had to getup at 7’o clock in the morning to prepare and serve food to all the members in the family. Often on falling asleep in the morning, Shyamji, Kamla Devi and Geeta Mehrotra tortured the complainant every day mentally and physically. Ramji Mehrotra often provoked the other three family members to torture and often used to make the complainant feel sad by making inappropriate statements about the complainant and her parents. Her husband Shyamji also took away the salary from the complainant.

5. After persistent efforts, Shyamji finally got a job in Chennai and he went to Chennai for the job in May, 2003. But, it is alleged that there was no change in his behaviour even after going to Chennai. The complainant often called him on phone to talk to him but he always did irrelevant conversation. He never spoke properly with the complainant whenever he visited home and often used to hurl filthy abuses. The complainant states that she often wept and tolerated the tortures of the accused persons for a long time but did not complain to her family members, as that would have made them feel sad. At last, when the complainant realized that even her life was in danger, she was compelled to tell everything to her father on phone who was very upset on hearing her woes. On 15.7.2003 complainant heard some conversation of her mother-in-law and sister-in-law from which it appeared to her that they want to kill the complainant in the night only. Thereupon the complainant apprised her father of the situation on phone to which her father replied that he will call back her father-in-law and she should go with him immediately and he will come in the morning. The father-in-law Satish Dhawan and his wife who were living in NOIDA thereafter came in the night and somehow took the complainant to their home who also came to know of everything. The complainant’s father and brother later went to her matrimonial home on 16.7.2003. On seeing her father and brother, Kamla Mehrotra and Geeta Mehrotra started speaking loudly and started saying that Shyamji would be coming by the evening and so he should come in the evening for talking to them. Her father and brother then went away from there. That very day, her husband Shyamji and brother-in-law Ramji also reached home. On reaching there, Shyamji abused her on phone and told her to send her father.

6. When father and brother of the complainant went home in the evening, they were also insulted by all the four and video camera and tape were played and in the end they were told that they should leave from here. Insulted, they came back from there and then came back to Allahabad with the complainant. For many days the complainant and her family members hoped that the situation would improve if the matter was resolved. Many times other people tried to persuade the in – laws but to no avail. Her brother went to their house to talk to her in – laws but it came to his knowledge that the in – laws had changed their house. After much effort, they came to know that the father-in- law and mother-in-law started living at B-39, Brahma cooperative group housing society, block 7, sector-7, Dwarka, Delhi. On 19.09.04 evening, her father talked to Kamla Mehrotra and Geeta Mehrotra regarding the complainant using bad words and it was said that if her daughter came there she will be kicked out. After some time Shyamji rang up at complainant’s home but on hearing the complainant’s voice, he told her abusively that now she should not come his way and she should tell her father not to phone him in future. At approximately 10:30 pm in the night Ramji’s phone came to the complainant’s home. He used bad words while talking to her father and in the end said that he had got papers prepared in his defence and he may do whatever he could but if he could afford to give Rs.10 lakhs then it should be conveyed after which he will reconsider the matter. If the girl was sent to his place without money, then even her dead body will not be found.

7. On hearing these talks of the accused, the complainant believed that her in-laws will not let the complainant enter their home without taking ten lakhs and if the complainant went there on her own, she will not be safe. Hence, she lodged the report wherein she prayed that the SHO Daraganj should be ordered to do the needful after registering the case against the accused Shyam Mehrotra, Ramji Mehrotra, Kamla Mehrotra and Geeta Mehrotra. Thus, in substance, the complainant related the bickering at her matrimonial home which made her life miserable in several ways and compelled her to leave her in- law’s place in order to live with her father where she lodged a police case as stated hereinbefore.

8. On the basis of the complaint, the investigating authorities at P.S. Daraganj, Allahabad started investigation of the case and thereafter the police submitted chargesheet against the appellants and other family members of the complainant’s husband.

9. Hence, the appellants who are sister and brother of the complainant’s husband filed petition under Section 482 Cr.P.C. for quashing of the chargesheet and the entire proceedings pending in the court of learned Judicial Magistrate, Court No.IV, Allahabad, inter- alia, on the ground that FIR has been lodged with mala fide intentions to harass the appellants and that no case was made out against the appellants as well as other family members. But the principal ground of challenge to the FIR was that the incident although was alleged to have taken place at Faridabad and the investigation should have been done there only, the complainant with mala fide intention in connivance with the father of the complainant, got the investigating officer to record the statements by visiting Ghaziabad which was beyond his territorial jurisdiction and cannot be construed as legal and proper investigation. It was also alleged that the father of the complainant got the arrest warrant issued through George Town Police Station, Allahabad, in spite of the cause of action having arisen at Allahabad.

10. This appeal has been preferred by Kumari Geeta Mehrotra i.e. the sister of the complainant’s husband and Ramji Mehrotra i.e. the elder brother of the complainant’s husband assailing the order of the High Court and it was submitted that the Hon’ble High Court ought to have appreciated that the complainant who had already obtained an ex-parte decree of divorce, is pursuing the present case through her father with the sole purpose to unnecessarily harass the appellants to extract money from them as all efforts of mediation had failed.

11. However, the grounds of challenge before this Court to the order of the High Court, inter alia is that the High Court had failed to appreciate that the investigation had been done by the authority without following due process of law which also lacked territorial jurisdiction. The relevant documents/parcha diary for deciding the territorial jurisdiction had been overlooked as the FIR has been lodged at Allahabad although the cause of action of the entire incident is alleged to have taken place at Faridabad (Haryana). It was, therefore, submitted that the investigating authorities of the Allahabad have traversed beyond the territorial limits which is clearly an abuse of the process of law and the High Court has failed to exercise its inherent powers under Section 482 Cr.P.C. in the facts and circumstances of this case and allowed the proceedings to go on before the trial court although it had no jurisdiction to adjudicate the same.

12. It was further averred that the High Court had failed to examine the facts of the FIR to see whether the facts stated in the FIR constitute any prima facie case making out an offence against the sister-in-law and brother-in-law of the complainant and whether there was at all any material to constitute an offence against the appellants and their family members. Attention of this Court was further invited to the contradictions in the statement of the complainant and her father which indicate material contradictions indicating that the complainant and her father have concocted the story to implicate the appellants as well as all their family members in a criminal case merely with a mala fide intention to settle her scores and extract money from the family of her ex-husband Shyamji Mehrotra and his family members.

13. On a perusal of the complaint and other materials on record as also analysis of the arguments advanced by the contesting parties in the light of the settled principles of law reflected in a catena of decisions, it is apparent that the High Court has not applied its mind on the question as to whether the case was fit to be quashed against the appellants and has merely disposed of the petition granting liberty to the appellants to move the trial court and raise contentions on the ground as to whether it has territorial jurisdiction to continue with the trial in the light of the averment that no part of the cause of action had arisen at Allahabad and the entire incident even as per the FIR had taken place at Faridabad.

14. The High Court further overlooked the fact that during the pendency of this case, the complainant-respondent No.2 has obtained an ex-parte decree of divorce against her husband Shyamji Mehrotra and the High Court failed to apply its mind whether any case could be held to have been made out against Kumari Geeta Mehrotra and Ramji Mehrotra, who are the unmarried sister and elder brother of the complainant’s ex-husband. Facts of the FIR even as it stands indicate that although a prima facie case against the husband Shyamji Mehrotra and some other accused persons may or may not be constituted, it surely appears to be a case where no ingredients making out a case against the unmarried sister of the accused Shyamji Mehrotra and his brother Ramji Mehrotra appear to be existing for even when the complainant came to her in-law’s house after her wedding, she has alleged physical and mental torture by stating in general that she had been ordered to do household activities of cooking meals for the whole family. But there appears to be no specific allegation against the sister and brother of the complainant’s husband as to how they could be implicated into the mutual bickering between the complainant and her husband Shyamji Mehrotra including his parents.

15. Under the facts and circumstance of similar nature in the case of Ramesh vs. State of Tamil Nadu reported in (2005) SCC (Crl.) 735 at 738 allegations were made in a complaint against the husband, the in-laws, husband’s brother and sister who were all the petitioners before the High Court wherein after registration of the F.I.R. and investigation, the charge sheet was filed by the Inspector of Police in the court of Judicial Magistrate III, Trichy. Thereupon, the learned magistrate took cognizance of the offence and issued warrants against the appellants on 13.2.2002. Four of the accused-appellants were arrested and released on bail by the magistrate at Mumbai. The appellants had filed petition under Section 482, Cr.P.C. before the Madras High Court for quashing the proceedings in complaint case on the file of the Judicial Magistrate III, Trichy. The High Court by the impugned order dismissed the petition observing that the grounds raised by the petitioners were all subject matters to be heard by the trial court for better appreciation after conducting full trial as the High Court was of the view that it was only desirable to dismiss the criminal original petition and the same was also dismissed. However, the High Court had directed the Magistrate to dispense with the personal attendance of the appellants.

16. Aggrieved by the order of the Madras High Court dismissing the petition under Section 482 Cr.P.C., the special leave petition was filed in this Court giving rise to the appeals therein where threefold contentions were raised viz., (i) that the allegations are frivolous and without any basis; (ii) even according to the FIR, no incriminating acts were done within the jurisdiction of Trichy Police Station and the court at Trichy and, therefore, the learned magistrate lacked territorial jurisdiction to take cognizance of the offence and (iii) taking cognizance of the alleged offence at that stage was barred under Section 468(1) Cr.P.C. as it was beyond the period of limitation prescribed under Section 468(2) Cr.P.C. Apart from the subsequent two contentions, it was urged that the allegations under the FIR do not make out any offence of which cognizance could be taken.

17. Their Lordships of the Supreme Court in this matter had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet, none of the alleged offences under Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly not living with the family of the complainant’s husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.

18. In so far as the plea of territorial jurisdiction is concerned, it is no doubt true that the High Court was correct to the extent that the question of territorial jurisdiction could be decided by the trial court itself. But this ground was just one of the grounds to quash the proceedings initiated against the appellants under Section 482 Cr.P.C. wherein it was also alleged that no prima facie case was made out against the appellants for initiating the proceedings under the Dowry Prohibition Act and other provisions of the IPC. The High Court has failed to exercise its jurisdiction in so far as the consideration of the case of the appellants are concerned, who are only brother and sister of the complainant’s husband and are not alleged even by the complainant to have demanded dowry from her. The High Court, therefore, ought to have considered that even if the trial court at Allahabad had the jurisdiction to hold the trial, the question still remained as to whether the trial against the brother and sister of the husband was fit to be continued and whether that would amount to abuse of the process of the court.

19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

“there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”

The view taken by the judges in this matter was that the courts would not encourage such disputes.

21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.

22. In the instant matter, when the complainant and her husband are divorced as the complainant-wife secured an ex-parte decree of divorce, the same could have weighed with the High Court to consider whether proceeding initiated prior to the divorce decree was fit to be pursued in spite of absence of specific allegations at least against the brother and sister of the complainant’s husband and whether continuing with this proceeding could not have amounted to abuse of the process of the court. The High Court, however, seems not to have examined these aspects carefully and have thus side- tracked all these considerations merely on the ground that the territorial jurisdiction could be raised only before the magistrate conducting the trial.

23. In the instant case, the question of territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the High Court to consider all these aspects. But in matters arising out of a criminal case, fresh consideration by remanding the same would further result into a protracted and vexatious proceeding which is unwarranted as was held by this Court in the case of Ramesh vs. State of Tamil Nadu (supra) that such a course of remand would be unnecessary and inexpedient as there was no need to prolong the controversy. The facts in this matter on this aspect was although somewhat different since the complainant had lodged the complaint after seven years of delay, yet in the instant matter the factual position remains that the complaint as it stands lacks ingredients constituting the offence under Section 498A and Section 3/4 Dowry Prohibition Act against the appellants who are sister and brother of the complainant’s husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them.

24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.

25. In the case at hand, when the brother and unmarried sister of the principal accused Shyamji Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498A,/323/504/506 including Sections 3/4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court.

26. The High Court in our considered opinion appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498A/323/504/506, IPC and Sections 3/4 of the Dowry Prohibition Act.

27. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant’s husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed.

……………………………J

(T.S. Thakur)

……………………………J

(Gyan Sudha Misra)

New Delhi,

October 17, 2012

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