| Lawmaker Manu's oft-quoted statement, that | | | | Code, has thus ruled that the decision of the |
| women are not worthy of freedom, exhaustively | | | | Supreme Court gives powers to the High Court to |
| underscores the Indian Paradigm that was sought to | | | | permit compounding of matrimonial offences and the |
| be negated by the legislature, when it set out to | | | | High Court has powers to quash the criminal |
| pass the Criminal Law (Second Amendment) Act No. | | | | proceedings, FIR or complaint. |
| 46 of 1983, introducing for the first time, to a nation | | | | For the woman armed with skewed intentions |
| seemingly never full of dowry deaths and cruelty to | | | | though, and coupled with the executives inclination |
| married women, Section 498A the debutante in a | | | | towards rampant abuse of police powers, as detailed |
| code which lacked the intrinsic aspect of protection | | | | under the preceding sub-heading, this newfound |
| to the hapless victim of marriage in a patriarchal | | | | judicial activism serves as the perfect artillery to |
| society. The 20th century had been the Dark Age | | | | avenge and extort. Where the courts are allowing |
| for women the world over, who had been subjected | | | | the withdrawal of the case when the parties agree |
| to different standards than men. They had been | | | | to reconcile or settle case, in real terms it amounts |
| consistently oppressed in nearly all aspects of life, | | | | to the fact that if you pay up, the case goes away, |
| from political to personal, public to private. Women | | | | if you dont you will get stuck with a criminal case |
| were always a weaker section of the society, which | | | | that will go on for years. Every year, close to 4,000 |
| denied them basics such as education, nutrition and | | | | innocent senior citizens are arrested under IPC |
| expression. Consequently, marriage too weighed | | | | Section 498A. Many retired elders have been ill |
| against them; statistical testimonies being the number | | | | treated, thrown out of their own homes and |
| of dowry-related harassment and domestic violence | | | | deprived of their meager means of sustenance by |
| cases that are on record from that era. | | | | greedy or vengeful daughters-in-law. A visit to the |
| Section 498A of the IPC defined a new cognizable | | | | Crime Against Women Cell shall reveal hoards of Men |
| offence, namely, cruelty by husband or relatives of | | | | and their relatives being tortured by the legal |
| husband. It is directed against the husband and/or his | | | | machinery at the behest of women. |
| relative, who is guilty of the offence of subjecting | | | | Thus we are witnessing an era of misconstruction at |
| the wife of such husband to cruelty, and can be | | | | its best, of the meaning and implication to be given |
| invoked by such wife, or daughter-in-law, or her | | | | to the compounding of this matrimonial offence. |
| relative, against the offenders. The term cruelty has | | | | |
| been given a wide berth, a protectively, non-evasive | | | | NO-BAIL: A LOST BARGAIN |
| connotation in the explanation to the section, and | | | | There are two kinds of offences, bailable and |
| includes both forms physical as well as mental. The | | | | non-bailable. 498A is non bailable. This means that the |
| offence is non-bailable, non-compoundable and | | | | magistrate has the power to refuse bail and remand |
| cognizable on a complaint made to the police officer | | | | a person to judicial or police custody. The process of |
| by the victim or by designated relatives. | | | | anticipatory bail, arrest, regular bail, filing of charge |
| The legislatures bona fide attempt in re-asserting, | | | | sheet, if any, have to follow the registration of an |
| through the passage of the aforesaid provision, a | | | | FIR. Given the nature of matrimonial disputes, |
| womans right to be treated with due care and | | | | straightway registering an FIR, which triggers the |
| respect, has been successful in its own right. It is | | | | criminal justice process, can place the parties in an |
| only now that women are learning to use the laws | | | | inflexible position and thereafter less inclined to |
| put in place for their protection. This law has laid the | | | | reconcile their differences. Here comes in the |
| foundation for the demand of a civil law to protect | | | | notorious Crime Against Women Cell (CAW Cell), |
| women and children. Domestic violence has since | | | | which has been notified as a Police station. The |
| 1983 been recognised as a crime and also constitutes | | | | complaint, at the stage at which it is referred to the |
| a considerable part of the workload of police, | | | | CAW Cell by the police, has not been registered as |
| prosecutors and the courts. | | | | an FIR. The reference of the complaint to the CAW |
| However, 498A in leading the pack of Indian | | | | cell has increasingly gained recognition as supposedly |
| 'women-protection laws', and in assuming that wives | | | | having the effect of postponing the activation of the |
| are always honest victims of marital wrath, therefore | | | | criminal justice process by facilitating dialogue |
| requiring no proof of their claims before initiating | | | | between the parties with the help of the police. The |
| action against the accused, quite unwittingly | | | | Supreme Court has in some of its decisions |
| overlooks the possible emergence of a reverse trend | | | | recognized the practice of the police conducting a |
| in the aforesaid scenario. The victim turning into the | | | | preliminary enquiry before registering an FIR. Now the |
| abuser! | | | | CAW cell is not bound to follow the statutory |
| The section, today, has metamorphosized into a | | | | procedure for investigation as under the Criminal |
| unilateral and indefeasible weapon in the hands of | | | | Procedure Code, since it is only a pre-enquiry stage. |
| married women, which can be easily abused if | | | | So the cell devises its own methods to identify the |
| intended. The scope and limitations of the section | | | | nature of offence, collection of evidence and |
| have not been defined and demarcated which makes | | | | examination of witnesses. Even vague, unspecific or |
| the situation worse. Many instances have come to | | | | exaggerated allegations bereft of any evidence of |
| light where the complaints are not bona fide and | | | | any physical or mental harm or injury inflicted upon |
| have been filed with an oblique motive. | | | | the woman cater to the cells quest to hound the |
| | | | husbands with the threat of arrest making them run |
| POLICE PROCEDURES: FIRST IN LINE FOR THE | | | | here and there and force them to hide at their |
| SCANNER! | | | | friends or relatives houses till they get anticipatory |
| No arrest can be made because it is lawful for the | | | | bail. Thousands of such complaints and cases are |
| Police Officer to do so. | | | | pending and are being lodged day in and day out. |
| Offences are divided into cognizable and | | | | Read between the lines, this is the tyranny of |
| non-cognizable. By law, the police are duty bound to | | | | corrupt CAW cells. Picture Jasbir Kaur Vs State , |
| register and investigate a cognizable offence. 498A is | | | | where instead of making an effort to bring about |
| a cognizable offence. S.498A was intended, by the | | | | amicable settlement between the parties, the cell |
| legislature, to be invoked by way of private | | | | blackmailed the husband with threats of registering |
| complaint to the Judicial Magistrate First Class or the | | | | immediately an FIR against him. Leading dailies have |
| Metropolitan Magistrate, who will take cognizance of | | | | been documenting statistical evidence of the number |
| the complaint, if it is found to be up to his judicial | | | | of fake cases before such CAW cells, and yet we |
| satisfaction, and issue summons to the opposite | | | | have figures such as over 100,000 women being |
| party, directing them to apply for bail. Nowhere in this | | | | arrested since 2004, u/s 498A! |
| scheme, does a clause of unconditional arrest book a | | | | Losing our reins over the mushrooming CAW cells is |
| place. But evidently, the Police has pushed to the | | | | one aspect; the other is the sheer abandon of a |
| backward recesses of the systems memory, the | | | | citizens A.21 right under the constitution. When the |
| fact that the existence of the power to arrest is | | | | basic criterion that whether there is any prima facie |
| one thing, while the justification for its exercise is | | | | evidence to connect the accused with the crime is |
| quite another. The Police Officer must be able to | | | | overlooked, and each time a bail plea is rejected |
| justify the arrest apart from his power to do so. No | | | | even without giving opportunity of hearing to the |
| arrest can be made without a reasonable satisfaction | | | | defence counsel, it is a sheer violation of the basic |
| reached after some investigation as to the | | | | principles of natural justice. The amended S.437(2), |
| genuineness and bona fides of a complaint and a | | | | CrPC lends support to the contention that in deciding |
| reasonable belief both as to the person''s complicity | | | | the question of grant of bail, the seriousness of the |
| and even as so as to the need to effect arrest. A | | | | offence is of no consequence unless and until the |
| person is not liable to arrest merely on the suspicion | | | | nexus between the accused and the crime is |
| of complicity in an offence. It is not imperative that in | | | | highlighted by the prima facie evidence. |
| each and every cognizable offence, the accused | | | | |
| must be arrested merely because an F.I.R. has been | | | | A RETURN-PATH TOWARDS LAW AND ORDER |
| lodged against him. The officer in charge, if comes to | | | | The use of S.498A by reading in part or in isolation to |
| the conclusion that there is no sufficient ground for | | | | each other, of the provisions of the Criminal |
| entering on an investigation, shall not proceed to | | | | (Amendment) Act No. 46 of 1983, is resulting in a |
| investigate the allegations made in the report, and in | | | | stark deviance from the literal meaning of the |
| such a situation, he shall inform accordingly to the | | | | section. Exigent is a reversion to the golden rule of |
| informant. | | | | interpretation here. 498A was never developed as a |
| Thus even a special women-oriented law like the | | | | weapon of mass-destruction, but that is what it |
| 498A itself, is untenable where statistics such as the | | | | easily mirrors itself into, the moment the thin line |
| one indicating arrest of 30,000 innocent women | | | | between judicial activism and gross misconstruction |
| annually based solely on the F.I.R lodged by a living | | | | of the provision is ignored. To save such ignominy of |
| tortured daughter-in-law or sister-in-law, are | | | | the well-intended provision, certain authoritative |
| concerned. The law was not designed as ultra vires | | | | observations, such as the following, may be taken |
| the constitution, and never was its true | | | | guidance of: |
| implementation intended to give way to any such | | | | 1. The Apex Court has set out in some detail, the |
| defence of the section. | | | | categories of cases where the High Court may |
| If any special treatment need be given to the said | | | | exercise its power relating to cognisable offences to |
| section, it shall touch upon the fact that S.498A | | | | prevent abuse of process of any court or otherwise |
| unlike regular penal laws is a matrimonial law. Levying | | | | to secure the ends of justice. Significant among them |
| of other penal sections in addition to S.498A is a sure | | | | are: |
| indicator of abuse of the process to cause arrest for | | | | 1. |
| ulterior motives. This additional levying causes a | | | | 2. Where the allegations made in the FIR or complaint |
| repetition of charges, because the said section is not | | | | are so absurd and inherently improbable on the basis |
| entirely bereft of the elements of dowry demand. | | | | of which no prudent person can ever reach a just |
| This is a clear abuse of police powers to arrest, by | | | | conclusion that there is sufficient ground for |
| abetting the woman and her side to authoritatively | | | | proceeding against the accused. |
| implement her ulterior design to commit extortion in | | | | 3. Where a criminal proceeding is manifestly attended |
| the garb of a prosecution for cruelty. | | | | with mala fides and where the proceeding is |
| | | | maliciously instituted with an ulterior motive for |
| COMPOUNDING OF NON-COMPOUNDABLE | | | | wreaking vengeance on the accused and with a view |
| OFFENCES | | | | to spite him due to private and personal grudge. |
| Based on whether a criminal complaint can be | | | | If for the purpose of securing the ends of justice, |
| withdrawn, and investigations against the opposite | | | | quashing of FIR becomes necessary, section 320 of |
| party compromised to give effect to private | | | | Cr.P.C would not be a bar to the exercise of power |
| settlement between parties to the complaint, | | | | of quashing. The court considering the special |
| offences under the penal code are divided into | | | | features of the matrimonial matters, has observed |
| compoundable and non-compoundable offences. | | | | that it is the duty of the court to encourage general |
| S.498A is a non-compoundable offence under the | | | | settlement of matrimonial disputes U/S 498-A by |
| code. An offence under S.498A or any other offence | | | | quashing the criminal proceedings under that section. |
| under the Code which is not specifically enumerated | | | | Further, it would not be wrong to assume that the |
| in Section 320 of the Code cannot be compounded | | | | personality of the offender as revealed by his age, |
| by the apex court in exercise of its powers under | | | | character, antecedents and other circumstances and |
| Section 320 and by High Court in exercise of its | | | | the tractability of the offender to reform must |
| inherent powers under Section 482 of the Code. | | | | necessarily play the most prominent role in |
| However in a recent case of the Bombay High Court, | | | | determining the sentence to be awarded. |
| it was added to this position of law, that, the | | | | An attitude that has the potential to uncover great |
| inherent powers under Section 482 of the Code | | | | institutional damage is that justice is required to be |
| include powers to quash FIR, Investigation or any | | | | done only in the courts. It should instead be taken to |
| criminal proceedings pending before the High Court or | | | | be that any and every authority under the statute |
| any Courts subordinate to it and are of wide | | | | has to discharge its duties in a just manner, |
| magnitude and ramification. Such powers can be | | | | otherwise people will lose faith in the governance. |
| exercised to secure ends of justice, prevent abuse | | | | Public authorities should stringently desist from |
| of the process of any court and to make such | | | | unnecessarily burdening courts by placing before it |
| orders as may be necessary to give effect to any | | | | frivolous and fabricated cases. |
| order under this Code, depending upon the facts of a | | | | 4. Section 498A is intended to protect the |
| given case. These powers are neither limited nor | | | | women from cruelty of husband or his relatives. It |
| curtailed by any other provisions of the Code | | | | has been widely reported that this provision has been |
| including Section 320 of the Code. The Court could | | | | misused and is also harsh as it is non-bailable and |
| exercise this power in offences of any kind, whether | | | | non-compoundable. It is desirable to provide a chance |
| compoundable or non-compoundable. However, such | | | | to the estranged spouse to come together and |
| inherent powers are to be exercised sparingly and | | | | therefore it is proposed to make the offence under |
| with caution. Further, the Court should ensure that | | | | Section 498A IPC, a compoundable one by inserting |
| object and purpose of passing any order in exercise | | | | this Section in the Table under sub section (2) of |
| of its inherent powers should be confined to one of | | | | Section 320 of CrPC, wherein it can be compounded |
| the three categories stated in Section 482 of the | | | | with permission of the Court.However, as has been |
| Code. | | | | detailed above, the ordeal does not end at the |
| This fresh observation may be supplemented with | | | | withdrawal of petition. To treat this malady, an |
| the legislatures intention to not apply ordinary judicial | | | | amendment to the effect of making the misuse of |
| procedure to the sensitive area of personal | | | | the law as a valid ground for divorce, is suggested. |
| relationships. Litigation concerning or involving affairs | | | | Furthermore, all marriages ending up with false dowry |
| of the family, therefore, seems to require a special | | | | cases should not be allowed alimony and child |
| approach in view of the serious emotional aspects | | | | custody. |
| involved. | | | | A cardinal principal of the sentencing policy is that it is |
| A Division Bench of The Bombay High Court relying | | | | better to forgive ten suspected criminals than to |
| upon the judgment of the Supreme Court in B.S. | | | | punish one innocent person but today, the IPC 498A |
| Joshi''s case and expanding the principles of | | | | is powerfully working its way towards uprooting the |
| socio-welfare interpretation to the provisions of the | | | | very foundation of any such Rule of Law. |