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Report No. 243

2. Judicial decisions

2.1 In the case of Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 (supra) decided in 2010, the Supreme Court observed that a serious relook of the provision is warranted by the Legislature. The Court said:

"It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints". The Court took note of the common tendency to implicate husband and all his immediate relations. The Supreme Court directed the Registry to send a copy of judgment to the Law Commission and Union Law Secretary so that appropriate steps may be taken in the larger interests of society.

In an earlier case als.- Sushil Kumar Sharma v. UOI, 2005 6 SCC 281, the Supreme Court lamented that in many instances, complaints under Section 498-A were being filed with an oblique motive to wreck personal vendetta and observed. "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". It was also observed that "by misuse of the provision, a new legal terrorism can be unleashed".

2.2 Various High Courts in the country have also noted that in several instances, omnibus allegations are made against the husband and his relations and the complaints are filed without proper justification. The need to exercise caution in the case of arrest of the husband and his relatives has been stressed while observing that by such a step, the possibility of reconciliation becomes remote and problematic.

In some of the cases, directions were given by the High Courts for regulating the power of arrest and for taking necessary steps to initiate conciliatory effort at the earliest point of time. Reference may be made in this context to the decision of Delhi High Court in Chandrabhan v. State (order dated 4.8.2008 in Bail application No. 1627/2008) and of the Madras High Court in the case of Tr. Ramaiah v. State (order dated 7.7.2008 and 4.8.2008 in MP No.1 of 2008 in Crl. O.P. No. 10896 of 2008).

In the former case, it was observed that "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". The following directions were given to the police authorities:

(i) "FIR should not be registered in a routine manner.

(ii) Endeavour of the police should be to scrutinize complaints carefully and then register FIR.

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

(iv) Before the registration of FIR, all possible efforts should be made for reconciliation and in case it is found that there is no possibility of settlement, then, necessary steps should, in the first instance, be taken to ensure return of sthridhan and dowry articles to the complainant.

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

(vi) In the case of collateral accused such as in-laws, prior approval of DCP should be there on the file."

The other directions given were :

The Delhi Legal Services 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. The need to explore the possibility of reunion and conciliation when the case reaches the Court was also stressed. In conclusion, it was observed that in these matters, the parties themselves can adopt a conciliatory approach without intervention of any outside agency.

2.3 In an earlier judgment of Delhi High Court in the case of "Court on its own in Motion v. CBI", reported in 109 (2003) Delhi Law Times 494, similar directions were issued to the police and courts regarding arrest, grant of bail, conciliation etc. It appears that these procedural directions issued by the High Court are being followed in Delhi as stated by senior police officers of Delhi, though according to the version of some lawyers, there are many instances of violation at the police station level.

It is to be mentioned that after the order in Chander Bhan's case, (supra), the Commissioner of Police of Delhi issued Standing Order No.330 of 2008 compiling the "Guidelines for Arrest" as laid down by the Supreme Court and Delhi High Court. The judgments relevant to Section 498-A and the directions issued therein were referred to in the Standing Order.

It is learnt that the practice of obtaining the permission of ACP/DCP level officers before effecting arrest of husband/relatives is being followed in Delhi. In many States, according to information received by the Chairman of this Commission, there are no systemic guidelines and there is no regular monitoring of this type of cases by the higher officials. Ad-hoc practices and procedures are in vogue.

2.4 The directives given by the Madras High Court in the case of Tr. Ramiah are as follows:

(i) Except in cases of dowry death/suicide and offences of serious nature, the Station House Officers of the All Women Police Stations are to register F.I.R. only on approval of the Dowry Prohibition Officer concerned.

(ii) Social workers/mediators with experience may be nominated and housed in the same premises of All Women Police Stations along with Dowry Prohibition Officers.

(iii) Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations.

(iv) If arrest is necessary during investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding the reasons recorded in writing.

(v) Arrest can be made after filing of the final report before the Magistrate concerned if there is non-cooperation and abscondance of accused persons, and after receipt of appropriate order (Non-Bailable Warrant).

(vi) Charge sheet must be filed within a period of 30 days from the date of registration of the F.I.R. and in case of failure, extension of time shall be sought for from the jurisdiction Magistrate indicating the reasons for the failure. vii) No weapon including lathis/physical force be used while handling cases at the All Women Police Stations.

(viii) Complainants/victims should be provided with adequate security/accommodation at Government Home and interest of the children must be taken care of.

(ix) Stridana properties/movables and immovable to be restored at the earliest to the victims/complainants and legal aid may be arranged for them through Legal Services Authority for immediate redressal of their grievances."

2.5 Pursuant to this order, the Director-General of Police, Tamil Nadu, issued a circular to the effect that the said orders of the Court should be strictly followed. In the further order dated 4.8.2008, the Court observed that when the I.O. seeks remand of the accused, the Magistrate must examine the necessity therefor and the remand should not be ordered mechanically on the mere request of the I.O. The Magistrate should be satisfied that sufficient grounds exist for directing remand. Further, the Court deprecated the practice of conducting lengthy panchayats in police stations.

Section 498-A of the Indian Penal Code Back

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