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| Social Action Forum vs Union Of India And Ors. Ministry Law |
Social Action Forum vs Union Of India And Ors. Minstry Law ... on 14 September, 2018
Supreme Court of India
REPORTABLE
IN THE
SUPREME COURT OF INDIA
CIVIL
ORIGINAL JURISDICTION
WRIT
PETITION (CIVIL) NO. 73 OF 2015
Social Action Forum for Manav Adhikar and another ...Petitioner(s)
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
JUDGMENT
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 Signature Not
Verified Digitally signed by situation arises and the legislature, expressing
its concern and DEEPAK GUGLANI Date: 2018.09.14 11:34:12 IST Reason:
responsibility,
adds a new penal provision with the intention to achieve 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 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 498Aof the Indian Penal Code, 1860 (for short, „the IPC‟).
2.Section 498Awas brought into the statute book in the year 1983. The objects and reasons
for introducing Section 498AIPC 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.
2. The following
are the changes that are proposed to be made:-
(i) The
Indian Penal Code is proposed to be amended to make cruelty to a woman by
her husband or any relative of her husband punishable with an imprisonment for
a term which may extend to three years and also with fine. Willful conduct of
such a nature by the husband or any other relative of the husband as is likely
to drive the woman to commit suicide or cause grave physical or mental injury
to her, and harassment of woman by her husband or by any relative of her
husband with a view to coercing her or any of her relatives to meet any
unlawful demand for property would be punishable as cruelty, the offence will
cognizable if information relating to the commission of the offence is given to
the officer in charge of a Police Station by the victim of the offence or a
relative of the victim of the offence or, in the absence of any such relative,
by any public servant authorized in this behalf by the State Government. It is
also being provided that no court shall take cognizance of the offence except
upon a Police Report or complaint made by the victim of the offence or by her
father, mother, brother, sister or by her father's or mother's brother or
sister or with the leave of the court by any other person related to her by
blood, marriage or adoption (vide Clauses 2, 5 and 6 of the Bill.)
(ii) Provision is
being made for inquest by Executive Magistrates and for postmortem in all cases
where a woman has, within seven years of her marriage, committed suicide or
died in circumstances raising a reasonable suspicion that some other person has
committed an offence. Post-mortem is also being provided for in all cases where
a married woman has died within seven years of her marriage and a relative of
such woman has made a request in this behalf (vide Clauses 3 and 4 of the Bill)
(iii)The Indian
evidence Act, 1872 is being amended to provide that where a woman has committed
suicide within a period of seven years from date of her marriage and it is
shown that her husband or any relative of her husband and subjected her to
cruelty, the court may presume that such suicide had been abetted by her
husband or by such relative of her husband (vide Clause 7 of the Bill)
3. The Bill seeks
to achieve the above objectives."
3. Regarding the
constitutionality of Section 498AIPC, in Sushil Kumar Sharma v. Union
of India and others 1, it was held by the Supreme Court:-
"Provision of S. 498A of Penal Code
is not unconstitutional and ultra vires. Mere possibility of abuse of a
provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object
of the provisions is prevention of the dowry menace. But many instances have
come to light where the complaints are not bona fide and have been filed with
oblique motive. In such cases acquittal of the accused does not in all cases
wipe out the ignominy suffered during and prior to trial. Sometimes adverse
media coverage adds to the misery. The question, therefore, is what remedial
measures can be taken to prevent abuse of the well-intentioned provision.
Merely because the provision is constitutional and intra vires, does not give a
licence to unscrupulous persons to wreck personal vendetta or unleash
harassment. It may, therefore, become necessary for the legislature to find out
ways how the makers of frivolous complaints or allegations can be appropriately
dealt with. Till then the Courts have to take care of the situation within the
existing frame-work."
4. In B.S.
Joshi and others v. State of Haryana and another 2, the Court observed:-
(2005) 6 SCC 281 :
AIR 2005 SC 3100 (2003) 4 SCC 675 : AIR 2003 SC 1386 "There is
no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a
woman by her husband or by relatives of her husband. Section 498A was
added with a view to punishing a husband and his relatives who harass or
torture the wife to coerce her or her relatives to satisfy unlawful demands of
dowry. The hyper-technical view would be counter productive and would act
against interests of women and against the object for which this provision was
added. There is eveiy likelihood that non- exercise of inherent power to quash
the proceedings to meet the ends of justice would prevent women from settling
earlier. That is not the object of Chapter XXA of Indian Penal Code."
5. In Brij
Lal v. Prem Chand and 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 Section 498A and 304-B to the
Indian Penal Code by subsequent amendments. Section 113-A Evidence
Act and 498A 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-Bin the Indian Evidence Act and Section 498A 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 (1989) 2 SCR 612 had committed suicide within
a period of seven years from her marriage, and (2) that the husband or relation
had subjected her to cruelty. We are referring to these provisions only to show
that the Legislature has realised the need to provide for additional provisions
in the Indian Penal Code and the Indian Evidence Act to
check the growing menace of dowry deaths...”
6. Presently, to
the factual score. The instant Petitions have been preferred under Article
32 of the Constitution of India seeking directions to the respondents to
create an enabling environment for married women subjected to cruelty to make
informed choices and to create a uniform system of monitoring and
systematically reviewing incidents of violence against women under Section 498A 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 498A IPC in consonance with the law of the land, i.e., to
immediately register FIR on complaint of cruelty and harassment by married
women as per the IPC.
7. It has been
averred by the petitioners that hundreds of women are being subjected to horrific
acts of violence often in the guise of domestic abuse or to extract more money
from the girl's natal family due to absence of any uniform system of monitoring
and systematic review of incidents of violence against married women which
has led to dilution of the legislative intent behind Section 498A IPC. And,
in the wake of ever increasing crimes leading to unnatural deaths of women in
marital homes, any dilution of Section 498A IPC is not warranted.
8. It has been
contended that Section 498A 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 498A 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 498A IPC, is proceeding on an erroneous
premise that there is misuse of the said provision, whereas in fact misuse by
itself cannot be a ground to repeal a penal provision or take away its teeth.
9. It is set forth
in the petition that Section 498A 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 498A 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 decisions of this Court including Rajesh
Sharma and others v. State of U.P. and another 4, a recent pronouncement.
10. It has also
been submitted by the petitioners that the police is hesitant to arrest the
accused on complaint of married women and the same inaction is justified by
quoting various judgments, despite the fact that Section 498A IPC
discloses a non-bailable offence and sufficient checks and balances have been
provided in the law itself under Section41 CrPC. To prevent
arbitrary and necessary arrest, the statute very clearly states that the police
shall record reasons for effecting arrest as well as for not arresting.
11. The
petitioners have also asseverated that there is lack of monitoring mechanism to
track cases registered under Section 498A 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 498A 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 498A IPC is often unprofessional and callous and the
investigating officers AIR 2017 SC 3869 : 2017 (8) SCALE
313 perceptibly get influenced by both the parties which results in
perpetrators escaping conviction.
12. It is further
contended that in many cases under Section 498A, IPC the Court
has not considered mental cruelty caused to the woman but has concentrated only
on any sign of physical cruelty due to which the courts do not look into a case
if the evidence does not show that the woman was physically harassed. This has
led the courts to brand the woman on many occasions as hyper-sensitive or of
low tolerance level.
13. It has been
further averred that the alleged abuse of the penal provision is mostly by
well-educated women who know that the offence is both cognizable and
non-bailable and impromptu works on the complaint of the woman by placing the
man behind the bars, but this cannot be a ground for denying the poor and
illiterate women the protection that is offered by Section 498A IPC
against cruelty, rather there is a need to create awareness specifically in the
rural areas about the laws for protection of women and consequent available
remedies in case of breach.
14. It is also set
forth in the petition that despite the Dowry Prohibition Act, 1961 being
passed, the irony still survives perhaps with more oxygen, for the social evil
of dowry is on the increase and is openly practised with pride. It is put
forth that women today are still tortured and often the court, despite being
the ultimate saviour, does not come to the rescue of these women as a
consequence of which an atmosphere of ambivalence prevails and such societal
ambivalence creates a situation of war between two classes though in actuality
the offence is relatable to individuals. A sorry state of affairs is
pronouncedly asserted.
15. On the
aforesaid bedrock, a prayer in Writ Petition (Civil) No. 73 of 2015 has been
made to have a uniform policy of registration of FIR, arrest and bail in cases
of Section 498A 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.
(d) Every
complaint under Section 498A received by the police or the Magistrate
be referred to and looked into by such committee. Such committee may have
interaction with the parties personally or by means of telephone or any other
mode of communication including electronic communication.
(e) Report of such
committee be given to the Authority by whom the complaint is referred to it
latest within one month from the date of receipt of complaint.
(f) The committee
may give its brief report about the factual aspects and its opinion in the
matter.
(g) Till report of
the committee is received, no arrest should normally be effected.
(h) The report may
be then considered by the Investigating Officer or the Magistrate on its own
merit.
(i) Members of the
committee may be given such basic minimum training as may be considered
necessary by the Legal Services Authority from time to time.
(j) The Members of
the committee may be given such honorarium as may be considered viable.
(k) It will be
open to the District and Sessions Judge to utilize the cost fund wherever
considered necessary and proper.
ii) Complaints
under Section 498A and other connected offences may be investigated
only by a designated Investigating Officer of the area. Such designations may
be made within one month from today. Such designated officer may be required to
undergo training for such duration (not less than one week) as may be
considered appropriate. The training may be completed within four months from
today;
iii) In cases
where a settlement is reached, it will be open to the District and Sessions
Judge or any other senior Judicial Officer nominated by him in the district to
dispose of the proceedings including closing of the criminal case if dispute
primarily relates to matrimonial discord;
iv) If a bail application is filed with at least
one clear day‟s notice to the Public Prosecutor/complainant, the same may be
decided as far as possible on the same day. Recovery of disputed dowry items
may not by itself be a ground for denial of bail if maintenance or other rights
of wife/minor children can otherwise be protected. Needless to say that in
dealing with bail matters, individual roles, prima facie truth of the
allegations, requirement of further arrest/ custody and interest of justice
must be carefully weighed;
v) In respect of persons ordinarily residing out of
India impounding of passports or issuance of Red Corner Notice should not be a
routine;
vi) It will be open to the District Judge or a designated
senior judicial officer nominated by the District Judge to club all connected
cases between the parties arising out of matrimonial disputes so that a
holistic view is taken by the Court to whom all such cases are entrusted; and
vii) Personal appearance of all family members and
particularly outstation members may not be required and the trial court ought
to grant exemption from personal appearance or permit appearance by video
conferencing without adversely affecting progress of the trial.
viii) These directions will not apply to the
offences involving tangible physical injuries or death.”
16. In the
meanwhile, Writ Petition (Criminal) No. 156 of 2017 had been filed. A prayer
had been made in the said Writ Petition to implement the suggestion that out of
three members, at least two members should be appointed in the Family Welfare
Committee. When this Writ Petition was listed on 13.10.2017, the following
order came to be passed:-
“Mr. Alok Singh, learned counsel for the petitioner
though has a different set of prayers in the writ petition, it fundamentally
requires this Court to implement directions rendered in Criminal Appeal No.1265
of 2017 [Rajesh Sharma vs. State of U.P. and Another]. Additionally, learned
counsel would submit that certain lady members, certain organizations and
welfare committees are to be involved.
At this stage, we are obligated to state that we
are not in agreement with the decision rendered in Rajesh Sharma (supra)
because we are disposed to think that it really curtails the rights of the
women who are harassed under Section 498A of the Indian Penal Code.
That apart, prima facie, we perceive that the guidelines may be in the
legislative sphere.
Issue notice to the respondent Nos.1 to 3. No
notice need be issued to the respondent No.4. Even if the petitioner does not
take steps, the Registry shall see to it that the respondents are served. Ms.
Indu Malhotra and Mr. V. Shekhar, learned senior counsel are appointed as
Amicus Curiae to assist the Court in the matter.
List the matter on 29th November, 2017.”
17. Mr. V.
Shekhar, learned senior counsel, was appointed as Amicus Curiae to assist the
Court in the matter.
18. It was submitted
by the learned Amicus Curiae that the decision in Rajesh Sharma (supra)
requires reconsideration, for the said judgment confers powers on the Family
Welfare Committee to be constituted by the District Legal Services Authority
which is an extra-judicial committee of para legal volunteers/social
workers/retired persons/wives of working officers/other citizens to look into
the criminal complaints under Section 498A 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 498A IPC is contrary to the procedure prescribed under the Code of
Criminal Procedure.
19. It is further
propounded that the directions in certain paragraphs of the judgment in Rajesh
Sharma (supra) entrusting the power to dispose of the proceedings under Section 498A 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 498A 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 been advanced with
regard to the direction in paragraph 19(v) which states that for persons who
are ordinarily residing out of India, impounding of passports or issuance of
Red Corner Notice should not be done in a routine manner. It is urged that if
an accused does not join the investigation relating to matrimonial/family
offence, the competent court can issue appropriate directions to the concerned
authorities to issue Red Corner Notice which will depend on the facts of the
case.
20. Learned Amicus
Curiae has further put forth that dispensation of personal appearance of
outstation family members is unwarranted, for in a criminal proceeding, the
competent court which deals with application of exemption should be allowed to
exercise the judicial discretion and there should not have been a general
direction by this Court. Certain suggestions have been given by the learned Amicus
Curiae which we shall refer to at the relevant stage.
21. To appreciate
the controversy, it is necessary to understand the scope of Section 498A of
IPC. It reads thus:-
“Section 498A. Husband or relative of husband of a woman
subjecting her to cruelty.—Whoever, being the husband or the relative of the
husband of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be liable
to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as
is likely to drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment
is with a view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand.”
22. 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 498A. 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 (2014) 8 SCC 273 drastic power of arrest has been
emphasised time and again by the courts but has not yielded desired result.
Power to arrest greatly contributes to its arrogance so also the failure of the
Magistracy to check it. Not only this, the power of arrest is one of the
lucrative sources of police corruption. The attitude to arrest first and then
proceed with the rest is despicable. It has become a handy tool to the police
officers who lack sensitivity or act with oblique motive.”
23. The Court,
thereafter, has drawn a distinction between the power to arrest and
justification for the exercise of it and analysed Section41 CrPC. Section41 CrPC 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 suspicion exists, of his
having been concerned in, any act committed at any place out of India which, if
committed in India, would have been punishable as an offence, and for which he
is, under any law relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India; or
(h) who, being a
released convict, commits a breach of any rule made under sub-section (5)
of section 356; or
(i) for whose
arrest any requisition, whether written or oral, has been received from another
police officer, provided that the requisition specifies the person to be
arrested and the offence or other cause for which the arrest is to be made and
it appears therefrom that the person might lawfully be arrested without a
warrant by the officer who issued the requisition.
(2) Subject to the
provisions of section 42, no person concerned in a non-cognizable offence
or against whom a complaint has been made or credible information has been
received or reasonable suspicion exists of his having so concerned, shall be
arrested except under a warrant or order of a Magistrate.”
24. Scrutinising
the said provision, the Court held as under:-
“7.1. From a plain reading of the aforesaid
provision, it is evident that a person accused of an offence punishable with
imprisonment for a term which may be less than seven years or which may extend
to seven years with or without fine, cannot be arrested by the police officer
only on his satisfaction that such person had committed the offence punishable
as aforesaid. A police officer before arrest, in such cases has to be further
satisfied that such arrest is necessary to prevent such person from committing
any further offence; or for proper investigation of the case; or to prevent the
accused from causing the evidence of the offence to disappear; or tampering
with such evidence in any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the court or the police officer; or unless such
accused person is arrested, his 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 Section41 CrPC.”
25. The learned
Judges, thereafter, referred to Section 41-A CrPC which has been
inserted by Section 6of 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 Section41 CrPC, 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.” 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 Section41 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 Section41 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 Section41 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 andmechanically. 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 498A IPC is registered but to satisfy themselves about the necessity for
arrest under the parameters laid down above flowing from Section41 CrPC;
11.2. All police officers be provided with a check
list containing specified sub-clauses under Section 41(1)(b)(ii); 11.3.
The police officer shall forward the check list duly filled and furnish the
reasons and materials which necessitated the arrest, while forwarding/producing
the accused before the Magistrate for further detention;
11.4. The Magistrate while authorising detention of
the accused shall peruse the report furnished by the police officer in terms
aforesaid and only after recording its satisfaction, the Magistrate will
authorise detention; 11.5. The decision not to arrest an accused, be forwarded
to the Magistrate within two weeks from the date of the institution of the case
with a copy to the Magistrate which may be extended by the Superintendent of
Police of the district for the reasons to be recorded in writing; 11.6. Notice
of appearance in terms of Section 41-A CrPC be served on the accused
within two weeks from the date of institution of the case, which may be
extended by the Superintendent of Police of the district for the reasons to be
recorded in writing;
11.7. Failure to comply with the directions aforesaid
shall apart from rendering the police officers concerned liable for
departmental action, they shall also be liable to be punished for contempt of
court to be instituted before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording
reasons as aforesaid by the Judicial Magistrate concerned shall be liable for
departmental action by the appropriate High Court.”
26. The aforesaid decision, as is perceptible, is
in accord with the legislative provision. The directions issued by the Court
are in the nature of statutory reminder of a constitutional court to the
authorities for proper 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
others6:-
“20. … No arrest can be made in a routine manner on
a mere allegation of commission of an offence made against a person. It would
be prudent for a police officer in the interest of protection of the
constitutional rights of a citizen and perhaps in his own interest that no
arrest should be made without a reasonable satisfaction reached after some
investigation as to the genuineness and bona fides of a complaint and a
reasonable belief both as to the person‟s complicity and even so as to the need
to effect arrest. Denying a person of his liberty is a serious matter. The
recommendations of the Police Commission merely reflect the constitutional
concomitants of the fundamental right to personal liberty and freedom. A person
is not liable to arrest merely on the suspicion of complicity in an offence.
There must be some reasonable justification in the opinion of the officer
effecting the arrest that such arrest is necessary and justified. Except in
heinous offences, an arrest must be avoided if a police officer issues notice
to person to attend the Station House and not to leave the Station without
permission would do.”
27. Again, the Court in Joginder Kumar (supra),
while voicing its concern regarding complaints of human rights pre and after
arrest, observed thus:-
“9. A realistic approach should be made in this
direction. The law of arrest is one of balancing individual rights, liberties
and privileges, on the one hand, and individual duties, obligations and
responsibilities on the other; of weighing and balancing the rights, liberties
and privileges of the single individual and those of individuals collectively;
of simply deciding what is wanted and where to put the weight and the emphasis;
of (1994) 4 SCC 260 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 (1997) 1 SCC 416 (1993) 2 SCC
746 (1995) 4 SCC 262 police station of the area concerned
telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this
right to have someone informed of his arrest or detention as soon as he is put
under arrest or is detained.
(6) An entry must be made in the diary at the place
of detention regarding the arrest of the person which shall also disclose the
name of the next friend of the person who has been informed of the arrest and
the names and particulars of the police officials in whose custody the arrestee
is. (7) The arrestee should, where he so requests, be also examined at the time
of his arrest and major and minor injuries, if any, present on his/her body,
must be recorded at that time. The “Inspection Memo” must be signed both by the
arrestee and the police officer effecting the arrest and its copy provided to
the arrestee.
(8) The arrestee should be subjected to medical
examination by a trained doctor every 48 hours during his detention in custody
by a doctor on the panel of approved doctors appointed by Director, Health
Services of the State or Union Territory concerned. Director, Health Services
should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo
of arrest, referred to above, should be sent to the Illaqa Magistrate for his
record.
(10) The arrestee may be permitted to meet his
lawyer during interrogation, though not throughout the interrogation. (11) A
police control room should be provided at all district and State headquarters,
where information regarding the arrest and the place of custody of the arrestee
shall be communicated by the officer causing the arrest, within 12 hours of
effecting the arrest and at the police control room it should be displayed on a
conspicuous notice board.”
29. In Lalita
Kumari v. Government of Uttar Pradesh and others10, the Constitution
Bench, referring to various provisions of CrPC, adverted (2014) 2 SCC
1 to the issue of conducting a preliminary enquiry. Eventually, the Court
opined that the scope of preliminary enquiry is not to verify the veracity or
otherwise of the information received but only to ascertain whether the
information reveals any cognizable offence and, thereafter, proceeded to state
thus:-
“120.6. As to what type and in which cases
preliminary inquiry is to be conducted will depend on the facts and
circumstances of each case. The category of cases in which preliminary inquiry
may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3 months‟ delay in reporting
the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant preliminary inquiry.”
30. From the
aforesaid, it is quite vivid that the Constitution Bench had suggested that
preliminary enquiry may be held in matrimonial/family disputes.
31. In Rajesh
Sharma (supra), as is noticeable, the Court had referred to authorities in Arnesh Kumar (supra) and Lalita Kumari (supra) and observed that:-
“16. Function of this Court is not to legislate but
only to interpret the law. No doubt in doing so laying down of norms is
sometimes unavoidable. 11 Just and fair procedure being part of fundamental right
to life,12 interpretation is required to be placed on a penal provision so that
its working is not unjust, unfair or unreasonable. The court has incidental
power to quash even a non-compoundable case of private nature, if continuing
the proceedings is found to be oppressive. 13 While stifling a legitimate
prosecution is against public policy, if the proceedings in an offence of
private nature are found to be oppressive, power of quashing is exercised.
17. We have considered the background of the issue
and also taken into account the 243rd Report of the Law Commission dated 30th
August, 2012, 140th Report of the Rajya Sabha Committee on Petitions
(September, 2011) and earlier decisions of this Court. We are conscious of the
object for which the provision was brought into the statute. At the same time,
violation of human rights of innocent cannot be brushed aside. Certain
safeguards against uncalled for arrest or insensitive investigation have been
addressed by this Court. Still, the problem continues to a great extent.
18. To remedy the situation, we are of the view
that involvement of civil society in the aid of administration of justice can
be one of the steps, apart from the investigating officers and the concerned
trial courts being sensitized. It is also necessary to facilitate closure of
proceedings where a genuine settlement has been reached instead of parties
being required to move High Court only for that purpose.”
32. After so
stating, the directions have been issued which we have reproduced in paragraph
15 hereinabove.
33. On a perusal
of the aforesaid paragraphs, we find that the Court has taken recourse to fair
procedure and workability of a provision so 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 State of Punjab v. Dalbir Singh :
(2012) 3 SCC 346, Paras 46, 52 & 85 Gian Singh v. State of Punjab :
(2012) 10 SCC 303, Para 61 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 provisionof 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 498A 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 Section41 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.
34. In Rajesh
Sharma (supra), there is introduction of a third agency which has nothing to do
with the Code and that apart, the Committees have been empowered to
suggest a report failing which no arrest can be made. The directions to settle
a case after it is registered is not a correct expression of law. A criminal
proceeding which is not compundable can be quashed by the High Court under Section
482CrPC. 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 havingoverwhelmingly and predominatingly civil
flavour stand on a different footing for the purposes of quashing, particularly
the offences arising from commercial, financial, mercantile, civil, partnership
or such like transactions or the offences arising out of matrimony relating to
dowry, etc. or the family disputes where the wrong is basically private or
personal in nature and the parties have resolved their entire dispute. In this
category of cases, the High Court may quash the criminal proceedings if in its
view, because of the compromise between the offender and the victim, the
possibility of conviction is remote and bleak and continuation of the criminal
case would put the accused to great oppression and prejudice and extreme
injustice would be caused to him by not quashing the criminal case despite full
and complete settlement and compromise with the victim.”
35. Though Rajesh
Sharma (supra) takes note of Gian Singh (supra), yet it seems to have it
applied in a different manner. The seminal issue is whether these directions
could have been issued by the process of interpretation. This Court, in
furtherance of a fundamental right, has issued directions in the absence of law
in certain cases, namely, Lakshmi Kant Pandey v. Union of 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 (1984) 2 SCC
244 (1997) 6 SCC 241 (2018) 5 SCC 1 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 498A 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.
(2005) 13 SCC 287 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 others 22 , 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.” (1989) 4 SCC 187(2015) 2 SCC 796 (2004) 9
SCC 362 (1970) 1 SCC 248 (1994) 2 SCC 691 (1997) 7 SCC
592 (2011) 7 SCC 639 (1998) 4 SCC 117
38. In the
aforesaid analysis, while declaring the directions pertaining to Family Welfare
Committee and its constitution by the District Legal Services Authority and the
power conferred on the Committee is impermissible. Therefore, we think it
appropriate to direct that the investigating officers be careful and be guided
by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita
Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct
the Director General of Police of each State to ensure that investigating
officers who are in charge of investigation of cases of offences under Section 498A IPC should be imparted rigorous training with regard to the
principles stated by this Court relating to arrest.
39. In view of the
aforesaid premises, the direction contained in paragraph 19(i) as a whole is
not in accord with the statutory framework and the direction issued in
paragraph 19(ii) shall be read in conjunction with the direction given
hereinabove.
40. Direction No.
19(iii) is modified to the extent that if a settlement is arrived at, the
parties can approach the High Court under Section 482 of the Code of
Criminal Procedure and the High Court, keeping in view the law laid down in
Gian Singh (supra), shall dispose of the same.
41. As far as
direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall
be governed by what we have stated in paragraph
35.
42. With the
aforesaid modifications in the directions issued in Rajesh Sharma (supra), the
writ petitions and criminal appeal stand disposed of. There shall be no order
as to costs.
…..………………………..,CJI
(Dipak Misra)
…..…………………………..,J (A.M. Khanwilkar)
..………………………….….,J (Dr. D.Y. Chandrachud) New
Delhi;
…..…………………………..,J (A.M. Khanwilkar)
..………………………….….,J (Dr. D.Y. Chandrachud) New
Delhi;
September 14 , 2018.
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