The Hon’ble Apex court on 14th September 2018, in the matter of Social Action Forum for Manav Adhikar and another vs. Union of India Ministry of Law and Justice and others while determining the validity of directions issued with respect to Section 498-A of IPC in the case of Rajesh Sharma and others v. State of U.P. and another observed that the core issue was that whether the Court in the abovementioned case could by the method of interpretation, have issued such directions. Thus the court went on to modify the directions given with respect to the registration of FIR, arrest and bail in cases under Section 498-A IPC.
The court, observed 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. (Para 1)
It was enunciated that 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. (Para 1)
Furthermore, it was observed by the court that 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 498-A IPC cognizable and non-bailable. The fault lies with the investigating agency which sometimes jumps into action without application of mind. (Para 33)
In the matter of Rajesh Sharma and others v. State of U.P. and another, it was directed that Family Welfare Committees by the District Legal Services Authorities shall be constituted and the District Legal Services authorities shall prescribe the duties of the Committees. As regards this the Hon’ble Apex court yesterday expressed that the prescription of duties of the Committees and further action therefore , are beyond the Code and the same does not really flow from any provision of the Code. (Para 33)
The Hon’ble Court declared that 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. (Para 38)
The directions given in Rajesh Sharma and others v. State of U.P. and another (AIR 2017 SC 3869 : 2017 (8) SCALE 313) are:
(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.
Para 19(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;
Para 19(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;
Para 19(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;
Para 19(v): In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
Para 19(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
Para 19 (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.
While taking note of these provisions, the Hon’ble Supreme Court expressed:
- The direction contained in paragraph 19(i) as a whole was not in accord with the statutory framework. (Para 39)
- The direction issued in paragraph 19(ii) shall be read in conjunction with the directions of the Court in the present matter (Para 39). The court in Para 38 of its judgement yesterday, directed that 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 and the investigating officers be careful and be guided by the principles stated in:
- 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 v. State of Punjab (read more), shall dispose of the same. (Para 40)
- The court did not find anything erroneous in direction Nos. 19(iv) and (v) because it was also of the view that 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 498-A IPC. That cannot be considered at that stage. (Para 35)
- So far as direction No. 19(vi) and 19(vii) are concerned, the Hon’ble Court pronounced that an application has to be filed either under Section 205 CrPC or Section 317 Cr.P.C. depending upon the stage at which the exemption is sought. (Para 35)
- The Hon’ble Supreme Court further directed that direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) shall be governed by the findings of this court in the present judgement. (Para 41)
Copy of Judgement: Judgement 14-Sep-2018