Guide Line for Arrest in 498a IPC-Delhi High Court

 

IN THE HIGH COURT OF DELHI AT NEW DELHI
Bail Application No. 1627/2008
04.08.2008
Judgment delivered on: 04.8.2008
Chander Bhan and Anr. …… Petitioners
Through: Mr. Rajesh Khanna Adv.
versus
State ….. Respondent
Through: Mr. Pawan Sharma APP
CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? yes
2. To be referred to Reporter or not? yes
3. Whether the judgment should be reported in the Digest? yes
KAILASH GAMBHIR, J. (Oral)
By way of the present petition the petitioners who are parents- in-law of the complainant seek grant
of anticipatory bail. Mr. Sharma counsel for the State submits that allegations are serious in nature
against the petitioners, therefore, the petitioners do not deserve grant of anticipatory bail.
Complainant is present in the court. She states that there is no possibility of her going back to the
matrimonial home. However, the complainant is not averse to the matter being sent before the
mediation cell. Let the matter be sent to the Mediation Cell, Rohini Court, Delhi for exploring the
possibility of amicable settlement between the parties.
Let the parties appear before the Mediation Cell, Rohini Court, Delhi on 11.8.2008 at 4.00 P.M.
List the matter before the court on 23.9.2008. Till then the petitioners shall not be arrested. Before
parting with this case, I deem it expedient and in the larger interest of saving matrimony of the
couples and to restore peace between the two hostile families of husband and wife who once must
have celebrated the marriage of couple with great zeal, fervor and enthusiasm but when faced with
many facets and stark realities of life entangled themselves to fight a long drawn legal battle instead of
building confidence, trust, understanding, mutual respect for each other and their respective families.
The offence of cruelty by husband or relatives of husband (Section 498-A) was added in 1986 to curb
the vise of subjecting women to coerce them or their relatives to meet unlawful demands for dowry.
Since its enactment, this provision has been subjected to systematic and sustained attack. It has been
called unfair and responsible for the victimization of husbands by their wives and her relatives. No
doubt there may be many deserving cases where women are being subjected to mental and physical
cruelty at the hands of the avaricious in-laws. But such cases have to be distinguished from other cases
where merely due to trivial fights and ego clashes the matrimony is facing disaster. What is not
comprehended by young minds while invoking the provisions of the likes of Section 498-A and 406
of IPC is that these provisions to a large extent have done incalculable harm in breaking matrimony
of the couples.
Despite the western culture influencing the young minds of our country, still it has been seen that
Indian families value their own age old traditions and culture, where, mutual respect, character and
morals are still kept at a very high pedestal. It has been noticed in diverse cases, where the brides and
their family members in litigation find the doors of conciliation shut from the side of groom and his
family members only on account of there having suffered the wrath of Police harassment first at the stage when matter is pending before crime against women cell and thereafter at the time of seeking
grant of anticipatory or regular bail and then the ordeal of long drawn trial.
Daily, matters come before this court seeking bail and for quashing of FIRs registered under Sections
498A/406 of the IPC. This court is of the view that it is essential to lay down some broad guidelines
and to give directions in such matters in order to salvage and save the institution of marriage and
matrimonial homes of the couples.
Guidelines:
1. Social workers/NGO
There is no iota of doubt that most of the complaints are filed in the heat of the moment over trifling
fights and ego clashes. It is also a matter of common knowledge that in their tussle and ongoing
hostility the hapless children are the worst victims. Before a wife moves to file a complaint with the
Women Cell, a lot of persuasion and conciliation is required.
(a) The Delhi Legal Service Authority, National Commission for Women, NGOs and social
workers working for upliftment of women should set up a desk in crime against women cell
to provide them with conciliation services, so that before the State machinery is set in
motion, the matter is amicably settled at that very stage. But, if ultimately even after efforts
put by the social workers reconciliation seems not possible then the matter should be
undertaken by the police officials of Crime against Women cell and there also, serious efforts
should be made to settle the matter amicably.
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.
(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 endeavor 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.
3. Lawyers:
Lawyers also have a great responsibility in this regard.
(a) While drafting pleadings/complaints, the lawyers should not unnecessarily suggest incorporation
of wild allegations, or in character assassination of any of the parties or their family members
whatever the case may be. (b) Lawyers are also to endeavor to bring about amicable settlement between the parties as they are
expected to discharge sacred duty as social engineers in such cases instead of making them target for
monetary considerations by multiplying their cases.
4. Courts:
Subordinate courts, be it trying civil or criminal cases concerning bail, maintenance, custody, divorce
or other related matters shall in the first instance, in every case where it is possible so to do
consistently with the nature and circumstances of the case, to make every endeavour to bring about
reconciliation between the parties.
a) The first endeavor should be for possible reunion and restitution of the parties and as a last
endeavor to bring about peaceful separation.
b) If possible extra time should be devoted to such matters to restore peace in the lives of rival
parties be it by re-uniting them or even in case of their parting ways.
c) Conciliatory proceedings by the court should preferably be held in camera to avoid
embarrassment.
d) Wherever, the courts are overburdened with the work, necessary assistance of Mediation and
Conciliation cells should be sought.
Apart from above directions it would not be out of place to ask parties also to themselves adopt a
conciliatory approach without intervention of any outside agency and unless there are very
compelling reasons, steps for launching prosecution against any spouse or his/her in-laws be not
initiated just in a huff, anger, desperation or frustration.
DASTI.
KAILASH GAMBHIR, J
August 04, 2008

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