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Sec. 498A IPC: Only HC Can Quash Cases On Settlement; A Third Agency Created By Courts Can’t Exercise Statutory Functions: SC
It has to be said right at the outset that the directions issued by a two-Judges Bench in Rajesh Sharma and others v State of UP and another AIR 2017 SC 3869 to regulate the purported gross misuse of Section 498A IPC have been modified just recently on September 14, 2018 in a latest judgment titled Social Action Forum Manav for Manav Adhikar and another v Union of India Ministry of Law and Justice and others in Civil Original Jurisdiction in Writ Petition (Civil) No. 73 of 2015. It may be recalled that in Rajesh Sharma case, it was held explicitly that the Family Welfare Committees should be constituted at every districts by District Legal Services Authority. The complaints of domestic violence under Section 498A IPC were directed to be vetted by the Committee first. It was also held that the police can carry out investigation and arrest only on the basis of report by the Committee.
Be it noted, these directions which were issued by the Bench of Justice AK Goel and Justice UU Lalit in clause 19(i) of the Rajesh Sharma case were wholly struck down by the three Judges Bench of Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud in this case. The Court held that Family Welfare Committee was an extra-judicial authority, which cannot exercise powers and functions of police and court. The Court expressed that the directions were contrary to the scheme of Code of Criminal Procedure, and held that they had the “potential to enter into the legislative field”. Hence, it was held that “the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework.”
As it turned out, the Apex Court while overturning the decision of Rajesh Sharma’s case on constitution of Family Welfare Committees said that, “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 therefore, as we find, are beyond the Code and the same does not really flow from any provision of the Code.” It was added that there were enough statutory provisions and judgments in place to check abuse of the provision. It was also held that, “…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 erroneous.”
Only HC Can Quash FIR/Complaint On Settlement
It may also be recalled that another direction in the Rajesh Sharma case empowered District/Sessions Judge to quash FIR/Complaint on settlement between the parties. The District/Sessions Judge was also empowered to nominate any other senior judicial officer to pass orders of quashing. This direction in clause 19(iii) of Rajesh Sharma case read as follows:
“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.”
Truth be told, this did not find favour with the three-Judges Bench of Apex Court in this case which includes the CJI Dipak Misra. It was held that Section 498A IPC was a non-compoundable offence. Therefore, only High Courts had the power to quash the case on the basis of mutual settlement, as held in Gian Singh case. It was also held that, “The directions to settle a case after it is registered is not a correct expression of law. A criminal proceeding which is not compoundable can be quashed by the High Court under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC. 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.”
Other Directions Not Disturbed
At the same time, it is significant to note that the other directions in Rajesh Sharma case were left undisturbed by the three Judges Bench in this case. The Court approved the direction mandated in Rajesh Sharma’s case that red corner notices and impounding of passports in cases of accused staying abroad should not be done in a routine manner. The Apex Court also agreed that recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC. Therefore, the directions in clauses 19(iv) and 19(v) were endorsed. As regards direction in clause 19(vii) which held that personal appearance of the accused should not be insisted and that video conferencing should be resorted to, the Court held that appropriate application seeking exemption from personal appearance, either under Section 205 CrPC or Section 317 CrPC, depending upon the stage of case, should be filed.
Police To Be Sensitised
Simply put, the Apex Court noted in this case that the police has to act as per the provisions of Section 41 CrPC and also the judgments of the Supreme Court in Arnesh Kumar, Lalita Kumari, DK Basu and Joginder Kumar cases before making arrests for offences under Section 498A of IPC. In Arnesh Kumar v State of Bihar and another (2014) 8 SCC 273, the Apex Court had held that arrest for offence under Section 498A IPC has to be made only in exceptional circumstances, that too after recording special reasons in writing in accordance with Section 41(1)(b) CrPC. In Lalita Kumari v Government of Uttar Pradesh and others (2014) 2 SCC 1, a Constitution Bench of Apex Court held that police has to carry out preliminary enquiry before registration of FIR in respect of matrimonial disputes.
To be sure, in Joginder Kumar v State of UP and others (1994) 4 SCC 260, the Apex Court exhorted that police should not carry out arbitrary arrests. Also, in this case, the Apex Court held in para 26 that, “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 UP and others (1994) 4 SCC 260:
“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.” In DK Basu v State of W.B. (1997) 1 SCC 416, the Apex Court laid down procedural guidelines and safeguards to be followed by police while arresting.
Having said this, it must also be pointed here that in this case, the Apex Court also held that, “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 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest.”
Genesis Of The Case
In essence, this judgment of the three-Judges Bench of Apex Court came in a writ petition filed in 2015 by an NGO, Social Action for Manav Adhikar consisting of women lawyers from Ahmednagar in Maharashtra, seeking to create a uniform system of monitoring and reviewing incidents of violence against women under Section 498-A IPC and rehabilitation of the victims and their children at the Central, State and District levels. That apart, it also sought for directions to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC.
During the pendency of the petition, the directions in Rajesh Sharma came to be passed on July 27, 2017. After that, another PIL was filed in Supreme Court seeking a direction that two out of three members of the Family Welfare Committees directed to be constituted as per Rajesh Sharma’s decision should be women. When the PIL was mentioned before the Bench of Chief Justice on October 13, 2017, the Bench expressed prima facie disapproval of Rajesh Sharma directions.
Truly speaking, the Bench then observed: “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.” The Court then appointed Indu Malhotra who was then a senior advocate and now Supreme Court Judge as also V Shekhar also a senior advocate as amicus curiae to assist the matter and they then proceeded to re-consider the directions. Both the amicus opined that the Court went overboard by issuing directions in Rajesh Sharma’s case. This also convinced the Apex Court to overturn the earlier decision in Rajesh Sharma’s case 13 months ago to some extent.
But it cannot be lost on us that some directions in Rajesh Sharma’s case were not disturbed. In para 35, it was held that, “We do not find anything erroneous in direction Nos. 19(iv) and (v). So far as direction No. 19(vi) and (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.”
Going forward, in para 38 of this judgment, the Bench directed that, “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), DK Basu (supra), Lalita Kumari (supra) and Arnesh Kumari (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 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest.”
All said and done, this judgment also conceded that dowry laws are misused. But it refused to lay down guidelines for police on lodging FIR in such cases. It cannot be lightly dismissed that 122596 cases lodged on husband and relatives of husband, 7621 cases lodged on dowry death and 44123 cases on dowry death pending. It is rightly observed in para 22 of this judgment that, “The said offence is a cognizable and non-bailable offence. This Court in Arnesh Kumar v State of Bihar and another (2014) 8 SCC 273 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 498-A. 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 despiter 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 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’.”
There can be no denying or disputing that this judgment also conceded that just recovery of some dowry items cannot be a ground to reject bail! This judgment also has ended the obligation on woman to first take the case to Family Welfare Committee who would vet it first of all which was done in Rajesh Sharma’s case. No doubt, this judgment has brought a smile on the faces of women who earlier felt aggrieved and they have valid reasons also for it! No doubt, Section 498-A has been grossly misused just like many other laws but that by itself cannot be a ground to repeal or dilute it considerably!
