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Report No. 243

15. Home Ministry's advisory and further action to be taken

15.1 In the Commission's view, the approach of Ministry of Home Affairs in the Advisory issued by it in No.3/5/2008-Judl.Cell dt. 20th October, 2009 is the correct approach and the instructions issued therein need to be reiterated after convening a conference of DGPs of every State so that follow up circulars will be issued by them for guidance of police officials within their jurisdiction. This is what the Home Ministry said in the said Circular:

"To comply with the procedure as laid down In D.K. Basu's case, the Hon'ble Supreme Court in its judgement dated 18.12.96 in CRL CWP No.539/8.- DK Basu v. State of West Bengal has stated that the power of arrest without warrant should be exercised only after a reasonable satisfaction is reached, after some investigation as to the genuinness and bonafides of a complaint and a reasonable belief as to both the person's complicity as well as the need to effect arrest.

Therefore, in any matrimonial dispute, it may not necessary in all cases to immediately exercise the powers of arrest. Recourse may be initially taken to dispute settlement mechanism such as conciliation, mediation, counseling of the parties etc."

15.2 The views of the National Commission for Women (extracted in 140th Report of the Rajya Sabha Committee on Petitions) substantially accords with the instructions issued by the Ministry of Home Affairs in the advisory issued by it.

15.3 We have indicated earlier what the police is expected to do (vide paras 13 supra). These aspects should also form the subject matter of the Circular/Standing order to be issued by the DGPs/Police Commissoners for the guidance of the police personnel. A mechanism to monitor the observance of the guidelines/instructions should be put in place. Regular and dedicated supervision by high level officers would go a long way in ensuring enforcement of this provision on right lines.

15.4 In some States, as noticed earlier, there are directives of the High Courts as to how the police should handle the complaints under Section 498-A. Based on these directives, it is noticed that certain instructions have already been issued by the DGPs. It is needless to state that the High Court's directives are binding and a fresh circular cannot be issued by the DGP superseding the instructions based on the High Court's judgment.

In such a situation, the proper course would be to apprise the High Court of the decision taken at the conference of DGPs and to request the High Court to modify the directions appropriately in the light of the decision taken so that there will be uniformity in approach all over the country.

Section 498-A of the Indian Penal Code Back

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