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Report No. 243

14. Certain guidelines / prescriptions to mitigate misuse

14.1 Certain Dos and Don'ts to the police personnel by the Head of the police dept. in order to inculcate the sense of responsibility and sensitivity is the need of the hour. The abuse of the provision by resorting to the power of arrest indiscriminately should be checked at all cost. The following prescriptions/guidelines shall be kept in view by the I.Os and be incorporated in the Circular to be issued by the Head of Police Department.

14.2 The FIR has to be registered as per law if it discloses an offence and the Police Officer has reason to suspect the commission of offence (as laid down in Section 157). However, on the point of registration of FIR, the police officials have to necessarily follow the decisions/directives of High Court on the point.

14.3 On receiving the FIR, the police officer should cross-check with the complainant the correctness of the contents and whether she voluntarily made all the allegations. For this purpose, she may be interviewed/questioned preferably in the presence of a lady official or a respectable lady or a Counsellor attached to a reputed NGO.

14.4 Then, without delay, the police officer must initiate the process of initial investigation by visiting the house of the husband and have a first hand account of the version of husband and other relations and take such measures as may be necessary to ensure that the accused do not indulge in acts calculated to endanger the safety and liberty of the complainant. Both sides should be counseled not to precipitate the situation. Thereafter, steps should be taken to refer the matter to the Mediation Centre if any or District Legal aid Centre or a team of Counselors/conciliators if any attached to the Police District.

In the absence of professional counsellors, the SP of the District or the DCP can form a team or panel of mediators/counselors. It may consist of IAS or other Civil Service Officers (preferably lady officers) and lady IPS Officers (unconnected to the case) or respected members of media, legal or other professions. If the parties choose to have specified persons as mediators/conciliators, they must be referred to such persons.

The police may obtain the report of mediators or conciliators within a maximum period of thirty days and then, depending on the outcome, they may proceed further in the matter. If the situation demands, investigation shall be completed and at that stage, if custodial interrogation is found necessary for the relevant reasons to be recorded in writing, the husband and others can be arrested on taking the permission of DCP/SP level officer. Then I.O. shall also take such action as is necessary to restore the valuable belongings of the complainant woman.

These rules or guidelines if followed would prevent misuse while fostering a valued based approach.

14.5 In the case of Non-Resident Indians, it is reported that the passports are seized when they come to India at the stage of investigation or they are sent to the Passport Officer for passing an order of impounding. During the pendency of the case in the Court, the prosecutor often requests the Court to direct depositing of the passport as a condition for granting bail. This should not be done in all cases mechanically as it will cause irreversible damage to the husband/accused and he will be exposed to the risk of losing the job and the visa being terminated.

Ultimately, there may be amicable settlement and/ or quashing of proceedings or acquittal/discharge but the damage has already been done. The prospect of the accused remaining unemployed would not be in the interests of both as the loss of earnings will have a bearing on the maintenance claims of the wife, apart from depriving him of the means of livelihood. The proper course would be to take bonds and sureties for heavy amounts and the prosecution taking necessary steps to expeditiously complete the trial. This aspect should also be brought to the notice of concerned police officers by means of circulars issued by the DGPs.

Section 498-A of the Indian Penal Code Back

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