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), 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.
In view of the
aforesaid premises, the direction contained in paragraph 19(i) as a whole is
not in accord with the statutory framework and the direction issued in
paragraph 19(ii) shall be read in conjunction with the direction given
hereinabove.
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
(supra), shall dispose of the same.
41. As far as
direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall
be governed by what we have stated in paragraph 35
READ THE WHOLE JUDGMENTS BELOW:
--------------------------------------------------------------------------------------------------------------------------
------- REPORTABLE
IN THE SUPREME COURT
OF INDIA
CIVIL ORIGINAL
JURISDICTION
WRIT PETITION (CIVIL) NO. 73 OF 2015
Social Action Forum
for Manav Adhikar ...Petitioner(s) and another
VERSUS
Union of India
Ministry of Law and Justice and others …Respondent(s)
WITH CRIMINAL APPEAL
NO. 1265 OF 2017
WRIT PETITION (CRIMINAL) NO. 156 of 2017
J U D G M E N T
Dipak Misra, CJI
Law, especially the
criminal law, intends to control, if not altogether remove, the malady that
gets into the spine of the society and gradually corrodes the marrows of the
vertebrae of a large section of the society. A situation arises and the
legislature, expressing its concern and responsibility, adds a new penal
provision with the intention to achieve 2 the requisite result. When a
sensitive legal provision is brought into the statute book, the victims of the
crime feel adequately safe, and if the said provision pertains to matrimonial
sphere, both the parties, namely, wife and husband or any one from the side of
the husband is booked for the offence and both the sides play the victim card.
The accused persons, while asserting as victims, exposit grave concern and the
situation of harassment is built with enormous anxiety and accentuated vigour.
It is propounded in a court of law 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. When the implementation of law is abused by the law
enforcing agency, the legislature introduces a protective provision as regards
arrest. Needless to say, 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.
The role of the law enforcing agency or the prosecuting 3 agency is sometimes
coloured with superlative empathy being totally oblivious of the sensation to
make maladroit efforts to compete with the game of super sensitivity. Such a
situation brings in a social disaster that has the potentiality to vertically
divide the society. The sense of sensitivity and the study of social phenomenon
are required to be understood with objectivity. In such a situation, it is
obligatory on the part of the legislature to bring in protective adjective law
and the duty of the constitutional courts to perceive and scrutinize the
protective measure so that the social menace is curbed. We are, in the instant
matters, focussing on Section 498-A of the Indian Penal Code, 1860 (for short,
„the IPC‟).
2. Section 498-A was
brought into the statute book in the year 1983. The objects and reasons for
introducing Section 498-A IPC can be gathered from the Statement of Objects and
Reasons of Criminal Law (Second Amendment) Act of 1983 and read as under :-
"The increasing
number of Dowry Deaths is a matter of serious concern. The extent of evil has
been commented upon by the Joint Committee of the Houses constituted to examine
the working of Dowry Prohibition Act, 1961. Cases of cruelty by the husband and
the relatives of the husband which culminate in suicide by, or murder of the
hapless woman concerned, constitute only a small fraction of the cases
involving such cruelty. It is, therefore proposed to amend the Indian Penal
Code, Code of Criminal Procedure and the Indian Evidence Act suitably to deal
effectively not only with cases of Dowry Death but also cruelty to married
woman by their in laws.
2. The following are
the changes that are proposed to be made:
(i) The Indian Penal Code is proposed to be amended to make
cruelty to a woman by her husband or any relative of her husband punishable
with an imprisonment for a term which may extend to three years and also with
fine. Willful conduct of such a nature by the husband or any other relative of
the husband as is likely to drive the woman to commit suicide or cause grave
physical or mental injury to her, and harassment of woman by her husband or by
any relative of her husband with a view to coercing her or any of her relatives
to meet any unlawful demand for property would be punishable as cruelty, the
offence will cognizable if information relating to the commission of the
offence is given to the officer in charge of a Police Station by the victim of
the offence or a relative of the victim of the offence or, in the absence of
any such relative, by any public servant authorized in this behalf by the State
Government. It is also being provided that no court shall take cognizance of
the offence except upon a Police Report or complaint made by the victim of the
offence or by her father, mother, brother, sister or by her father's or
mother's brother or sister or with the leave of the court by any other person
related to her by blood, marriage or adoption (vide Clauses 2, 5 and 6 of the
Bill.)
(ii) Provision is
being made for inquest by Executive Magistrates and for postmortem in all cases
where a woman has, within seven years of her marriage, committed suicide or
died in circumstances raising a reasonable suspicion that some other person has
committed an offence. Post-mortem is also being provided for in all cases where
a married woman has died within seven years of her marriage and a relative of
such woman has made a request in this behalf (vide Clauses 3 and 4 of the Bill)
(iii)The Indian
evidence Act, 1872 is being amended to provide that where a woman has committed
suicide 5 within a period of seven years from date of her marriage and it is
shown that her husband or any relative of her husband and subjected her to
cruelty, the court may presume that such suicide had been abetted by her
husband or by such relative of her husband (vide Clause 7 of the Bill)
3. The Bill seeks to
achieve the above objectives."
3. Regarding the constitutionality of Section 498-A IPC, in
Sushil Kumar Sharma v. Union of India and others1 , it was held by the Supreme
Court:
"Provision of S.
498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of
abuse of a provision of law does not per se invalidate a legislation. Hence
plea that S. 498A has no legal or constitutional foundation is not tenable. The
object of the provisions is prevention of the dowry menace. But many instances
have come to light where the complaints are not bona fide and have been filed
with oblique motive. In such cases acquittal of the accused does not in all
cases wipe out the ignominy suffered during and prior to trial. Sometimes
adverse media coverage adds to the misery. The question, therefore, is what
remedial measures can be taken to prevent abuse of the well-intentioned
provision. Merely because the provision is constitutional and intra vires, does
not give a licence to unscrupulous persons to wreck personal vendetta or
unleash harassment. 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. Till then the Courts have to take care of the
situation within the existing frame-work."
4. In B.S. Joshi and
others v. State of Haryana and another2 , the Court observed:- 1 (2005) 6 SCC
281 : AIR 2005 SC 3100 2 (2003) 4 SCC 675 : AIR 2003 SC 1386 6
"There is no doubt that the object of introducing
Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent
the torture to a woman by her husband or by relatives of her husband. Section
498A was added with a view to punishing a husband and his relatives who harass
or torture the wife to coerce her or her relatives to satisfy unlawful demands
of dowry. The hyper-technical view would be counter productive and would act
against interests of women and against the object for which this provision was
added. There is eveiy likelihood that nonexercise of inherent power to quash
the proceedings to meet the ends of justice would prevent women from settling
earlier. That is not the object of Chapter XXA of Indian Penal Code."
5. In Brij Lal v.
Prem Chand and another3 , this Court ruled thus:
“It would not be out
of place for us to refer here to the addition of Sections 113-A and 113-B to
the Indian Evidence Act and Sections 498-A and 304-B to the Indian Penal Code
by subsequent amendments. Section 113-A Evidence Act and 498-A Indian Penal
Code have been introduced in the respective enactments by the Criminal Law
(Second amendment) Act, 1983 (Act 46 of 1983) and Section 113-B of the Evidence
Act and 304-B Indian Penal Code have been introduced by Act No. 43 of 1986. The
degradation of society due to the pernicious system of dowry and the
unconscionable demands made by greedy and unscrupulous husbands and their
parents and relatives resulting in an alarming number of suicidal and dowry
deaths by women has shocked the Legislative conscience to such an extent that
the Legislature has deemed it necessary to provide additional provisions of
law, procedural as well as substantive, to combat the evil and has consequently
introduced Sections 113-A and 113-B in the Indian Evidence Act and Sections
498-A and 304-B in the Indian Penal Code. By reason of Section 113-A, the
Courts can presume that the commission of suicide by a woman has been abetted
by her husband or relation if two factors are present viz. (1) that the woman 3
(1989) 2 SCR 612 7 had committed suicide within a period of seven years from
her marriage, and (2) that the husband or relation had subjected her to
cruelty. We are referring to these provisions only to show that the Legislature
has realised the need to provide for additional provisions in the Indian Penal
Code and the Indian Evidence Act to check the growing menace of dowry
deaths...”
6. Presently, to the factual score. The instant Petitions
have been preferred under Article 32 of the Constitution of India seeking
directions to the respondents to create an enabling environment for married
women subjected to cruelty to make informed choices and to create a uniform
system of monitoring and systematically reviewing incidents of violence against
women under Section 498-A IPC including their prevention, investigation,
prosecution and rehabilitation of the victims and their children at the
Central, State and District levels. That apart, prayer has been made to issue a
writ of mandamus to the respondents for a uniform policy of registration of
FIR, arrest and bail in cases of Section 498-A IPC in consonance with the law
of the land, i.e., to immediately register FIR on complaint of cruelty and
harassment by married women as per the IPC.
7. It has been
averred by the petitioners that hundreds of women are being subjected to
horrific acts of violence often in the guise of domestic abuse or to extract
more money from the girl's natal family due to absence of any uniform system of
monitoring and systematic review of 8 incidents of violence against married
women which has led to dilution of the legislative intent behind Section 498-A
IPC. And, in the wake of ever increasing crimes leading to unnatural deaths of
women in marital homes, any dilution of Section 498-A IPC is not warranted.
8. It has been
contended that Section 498-A IPC, since its introduction, has increasingly been
vilified and associated with the perception that it is misused by women who
frequently use it as a weapon against their in-laws. As per the petitioners,
though there is general complaint that Section 498-A IPC is subject to gross
misuse, yet there is no concrete data to indicate how frequently the provision
has been misused. Further, the Court, by whittling down the stringency of
Section 498-A IPC, is proceeding on an erroneous premise that there is misuse
of the said provision, whereas in fact misuse by itself cannot be a ground to
repeal a penal provision or take away its teeth.
9. It is set forth in
the petition that Section 498-A IPC has been specifically enacted to protect
the vulnerable sections of the society who have been victims of cruelty and
harassment. The social purpose behind Section 498-A IPC is being lost as the
rigour of the said provision has been diluted and the offence has practically
been made bailable by reason of various qualifications and restrictions
prescribed by various 9 decisions of this Court including Rajesh Sharma and
others v. State of U.P. and another4 , a recent pronouncement.
10. It has also been submitted by the petitioners that the
police is hesitant to arrest the accused on complaint of married women and the
same inaction is justified by quoting various judgments, despite the fact that
Section 498-A IPC discloses a non-bailable offence and sufficient checks and
balances have been provided in the law itself under Section 41 CrPC. To prevent
arbitrary and necessary arrest, the statute very clearly states that the police
shall record reasons for effecting arrest as well as for not arresting.
11. The petitioners
have also asseverated that there is lack of monitoring mechanism to track cases
registered under Section 498-A IPC including systematic study of the reason of
low convictions and due to this absence, penal laws have not been able to
secure a safe married environment to women. This, as per the petitioners, has
also resulted in rise in cases under Section 498-A IPC because the deterrent
effect of the said provision is getting diluted. It is also the case of the
petitioners that investigation by the police of offence under Section 498-A IPC
is often unprofessional and callous and the investigating officers 4 AIR 2017
SC 3869 : 2017 (8) SCALE 313 10 perceptibly get influenced by both the parties
which results in perpetrators escaping conviction.
12. It is further contended
that in many cases under Section 498-A, IPC the Court has not considered mental
cruelty caused to the woman but has concentrated only on any sign of physical
cruelty due to which the courts do not look into a case if the evidence does
not show that the woman was physically harassed. This has led the courts to
brand the woman on many occasions as hyper-sensitive or of low tolerance level.
13. It has been further averred that the alleged abuse of
the penal provision is mostly by well-educated women who know that the offence
is both cognizable and non-bailable and impromptu works on the complaint of the
woman by placing the man behind the bars, but this cannot be a ground for
denying the poor and illiterate women the protection that is offered by Section
498-A IPC against cruelty, rather there is a need to create awareness
specifically in the rural areas about the laws for protection of women and
consequent available remedies in case of breach.
14. It is also set forth in the petition that despite the Dowry
Prohibition Act, 1961 being passed, the irony still survives perhaps with more
oxygen, for the social evil of dowry is on the increase and is openly 11
practised with pride. It is put forth that women today are still tortured and
often the court, despite being the ultimate saviour, does not come to the
rescue of these women as a consequence of which an atmosphere of ambivalence
prevails and such societal ambivalence creates a situation of war between two
classes though in actuality the offence is relatable to individuals. A sorry
state of affairs is pronouncedly asserted.
15. On the aforesaid bedrock, a prayer in Writ Petition
(Civil) No. 73 of 2015 has been made to have a uniform policy of registration
of FIR, arrest and bail in cases of Section 498-A IPC. It is worthy to note
here that during the pendency of this Writ Petition, the judgment had been
pronounced in Rajesh Sharma (supra).
The Court in Rajesh
Sharma (supra) issued the following guidelines:-
“19.i) (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.
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;
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;
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;
v) In respect of
persons ordinarily residing out of India impounding of passports or issuance of
Red Corner Notice should not be a routine;
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
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.
. viii) These directions will not apply to the offences
involving tangible physical injuries or death.”
16. In the meanwhile, Writ Petition (Criminal) No. 156 of
2017 had been filed. A prayer had been made in the said Writ Petition to
implement the suggestion that out of three members, at least two members should
be appointed in the Family Welfare Committee. When this Writ Petition was
listed on 13.10.2017, the following order came to be passed:-
“Mr. Alok Singh, learned counsel for the petitioner
though has a different set of prayers in the writ petition, it fundamentally
requires this Court to implement directions rendered in Criminal Appeal No.1265
of 2017 [Rajesh Sharma vs. State of U.P. and Another]. Additionally, learned
counsel would submit that certain lady members, certain organizations and
welfare committees are to be involved. 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. Issue notice to the respondent Nos.1 to 3. No notice need be issued to
the respondent No.4. Even if the petitioner does not take steps, the Registry
shall see to it that the respondents are served. Ms. Indu Malhotra and Mr. V.
Shekhar, learned senior counsel are appointed as Amicus Curiae to assist the
Court in the matter.
List the matter on
29th November, 2017.”
17. Mr. V. Shekhar, learned senior counsel, was appointed as
Amicus Curiae to assist the Court in the matter.
18. It was submitted
by the learned Amicus Curiae that the decision in Rajesh Sharma (supra) requires
reconsideration, for the said judgment confers powers on the Family Welfare
Committee to be constituted by the District Legal Services Authority which is
an extra-judicial committee of para legal volunteers/social workers/retired
persons/wives of working officers/other citizens to look into the criminal
complaints under Sections 15 498-A IPC in the first instance and further, there
has been a direction that till such time a report of the committee is received,
no arrest should be made. It is urged that the constitution of FWC to look into
the criminal complaints under Section 498-A IPC is contrary to the procedure
prescribed under the Code of Criminal Procedure.
19. It is further
propounded that the directions in certain paragraphs of the judgment in Rajesh
Sharma (supra) entrusting the power to dispose of the proceedings under Section
498-A IPC by the District and Sessions Judge or any other senior judicial
officer nominated by him in the district in cases where there is settlement,
are impermissible, for an offence under Section 498-A is not compoundable and
hence, such a power could not have been conferred on any District and Sessions
Judge or any senior judicial officer nominated by him. Elaborating the said
submission, it is canvassed that the High Court is empowered under Section 482
CrPC to quash the proceeding if there is a settlement between the parties.
Learned Amicus Curiae further submitted that the recovery of disputed dowry
items may not itself be a ground for denial of bail which is the discretion of
the court to decide the application of grant of bail in the facts and
circumstances of the case and thus, this tantamounts to a direction which is
not warranted in law. Criticism has 16 been advanced with regard to the
direction in paragraph 19(v) which states that for persons who are ordinarily
residing out of India, impounding of passports or issuance of Red Corner Notice
should not be done in a routine manner. It is urged that if an accused does not
join the investigation relating to matrimonial/family offence, the competent
court can issue appropriate directions to the concerned authorities to issue
Red Corner Notice which will depend on the facts of the case.
20. Learned Amicus Curiae has further put forth that
dispensation of personal appearance of outstation family members is
unwarranted, for in a criminal proceeding, the competent court which deals with
application of exemption should be allowed to exercise the judicial discretion
and there should not have been a general direction by this Court. Certain
suggestions have been given by the learned Amicus Curiae which we shall refer
to at the relevant stage.
21. To appreciate the
controversy, it is necessary to understand the scope of Section 498-A of IPC.
It reads thus:-
“498-A. Husband or relative
of husband of a woman subjecting her to cruelty.—Whoever, being the husband or
the relative of the husband of a woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may extend to three years and shall
also be liable to fine. Explanation.—For the purpose of this section, “cruelty”
means—
(a) any wilful
conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave 17 injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the
woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to
meet such demand.”
22. The said offence is a cognizable and non-bailable
offence. This Court in Arnesh Kumar v. State of Bihar and another5 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 despite 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 5 (2014) 8 SCC 273 18
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.”
23. The Court, thereafter, has drawn a distinction between
the power to arrest and justification for the exercise of it and analysed
Section 41 CrPC. Section 41 stipulates when police may arrest without warrant.
The said provision reads as follows:-
“41. When police may
arrest without warrant.—(1) Any police officer may without an order from a
Magistrate and without a warrant, arrest any person—
(a) who commits, in
the presence of a police officer, a cognizable offence;
(b) against whom a
reasonable complaint has been made, or credible information has been received,
or a reasonable suspicion exists that he has committed a cognizable offence
punishable with imprisonment for a term which may be less than seven years or
which may extend to seven years whether with or without fine, if the following
conditions are satisfied, namely:-
- (i) the police officer has reason to believe on the basis
of such complaint, information, or suspicion that such person has committed the
said offence;
(ii) the police officer is satisfied that such arrest is
necessary—
(a) to prevent such
person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such
person from causing the evidence of the offence to disappear or tampering with
such evidence in any manner; or
(d) to prevent such
person from making any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing such facts to
the Court or to the police officer; or
(e) as unless such
person is arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall record while making such arrest, his reasons in
writing. Provided that a police officer shall, in all cases where the arrest of
a person is not required under the provisions of this sub-section, record the
reasons in writing for not making the arrest.
(ba) against whom
credible information has been received that he has committed a cognizable
offence punishable with imprisonment for a term which may extend to more than
seven years whether with or without fine or with death sentence and the police
officer has reason to believe on the basis of that information that such person
has committed the said offence.
(c) who has been
proclaimed as an offender either under this Code or by order of the State
Government; or
(d) in whose possession anything is found which may
reasonably be suspected to be stolen property and who may reasonably be
suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of
his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonable
suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been
concerned in, or against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable 20 suspicion exists, of his
having been concerned in, any act committed at any place out of India which, if
committed in India, would have been punishable as an offence, and for which he
is, under any law relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any
rule made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or
oral, has been received from another police officer, provided that the
requisition specifies the person to be arrested and the offence or other cause
for which the arrest is to be made and it appears therefrom that the person
might lawfully be arrested without a warrant by the officer who issued the
requisition.
(2) Subject to the
provisions of section 42, no person concerned in a non-cognizable offence or
against whom a complaint has been made or credible information has been
received or reasonable suspicion exists of his having so concerned, shall be
arrested except under a warrant or order of a Magistrate.”
24. Scrutinising the said provision, the Court held as
under:
“7.1. From a plain reading of the aforesaid provision, it is
evident that a person accused of an offence punishable with imprisonment for a
term which may be less than seven years or which may extend to seven years with
or without fine, cannot be arrested by the police officer only on his
satisfaction that such person had committed the offence punishable as
aforesaid. A police officer before arrest, in such cases has to be further
satisfied that such arrest is necessary to prevent such person from committing
any further offence; or for proper investigation of the case; or to prevent the
accused from causing the evidence of the offence to disappear; or tampering
with such evidence in any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the court or the police officer; or unless such
accused person is arrested, his 21 presence in the court whenever required
cannot be ensured. These are the conclusions, which one may reach based on
facts. x x x x x 7.3. In pith and core, the police officer before arrest must
put a question to himself, why arrest? Is it really required? What purpose it
will serve? What object it will achieve? It is only after these questions are
addressed and one or the other conditions as enumerated above is satisfied, the
power of arrest needs to be exercised. In fine, before arrest first the police
officers should have reason to believe on the basis of information and material
that the accused has committed the offence. Apart from this, the police officer
has to be satisfied further that the arrest is necessary for one or the more
purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.”
25. The learned Judges, thereafter, referred to Section 41-A
CrPC which has been inserted by Section 6 of the Code of Criminal Procedure
(Amendment) Act, 2008 (5 of 2009). The said provision is to the following
effect:-
“41-A. Notice of
appearance before police officer.—(1) The police officer shall, in all cases
where the arrest of a person is not required under the provisions of
sub-section (1) of Section 41, issue a notice directing the person against whom
a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place as may be specified in the
notice.
(2) Where such a
notice is issued to any person, it shall be the duty of that person to comply
with the terms of the notice.
(3) Where such person
complies and continues to comply with the notice, he shall not be arrested in
respect of the 22 offence referred to in the notice unless, for reasons to be
recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the
terms of the notice or is unwilling to identify himself, the police officer
may, subject to such orders as may have been passed by a competent court in
this behalf, arrest him for the offence mentioned in the notice.” Explaining
the said provision, it has been ruled:-
“9. …The aforesaid
provision makes it clear that in all cases where the arrest of a person is not
required under Section 41(1) CrPC, the police officer is required to issue
notice directing the accused to appear before him at a specified place and
time. Law obliges such an accused to appear before the police officer and it
further mandates that if such an accused complies with the terms of notice he
shall not be arrested, unless for reasons to be recorded, the police officer is
of the opinion that the arrest is necessary. At this stage also, the condition
precedent for arrest as envisaged under Section 41 CrPC has to be complied and
shall be subject to the same scrutiny by the Magistrate as aforesaid.” The
Court further went on to say that:-
“10. We are of the
opinion that if the provisions of Section 41 CrPC which authorises the police
officer to arrest an accused without an order from a Magistrate and without a
warrant are scrupulously enforced, the wrong committed by the police officers
intentionally or unwittingly would be reversed and the number of cases which
come to the Court for grant of anticipatory bail will substantially reduce. We
would like to emphasise that the practice of mechanically reproducing in the
case diary all or most of the reasons contained in Section 41 CrPC for
effecting arrest be discouraged and discontinued.
” The directions issued in the said case are worthy to
note:-
“11. Our endeavour in
this judgment is to ensure that police officers do not arrest the accused
unnecessarily and Magistrate do not authorise detention casually and 23
mechanically. In order to ensure what we have observed above, we give the
following directions:
11.1. All the State
Governments to instruct its police officers not to automatically arrest when a
case under Section 498-A IPC is registered but to satisfy themselves about the
necessity for arrest under the parameters laid down above flowing from Section
41 CrPC;
11.2. All police officers be provided with a check list
containing specified sub-clauses under Section 41(1)(b)(ii);
11.3. The police officer shall forward the check list duly
filled and furnish the reasons and materials which necessitated the arrest,
while forwarding/producing the accused before the Magistrate for further
detention;
11.4. The Magistrate while authorising detention of the
accused shall peruse the report furnished by the police officer in terms
aforesaid and only after recording its satisfaction, the Magistrate will
authorise detention;
11.5. The decision
not to arrest an accused, be forwarded to the Magistrate within two weeks from
the date of the institution of the case with a copy to the Magistrate which may
be extended by the Superintendent of Police of the district for the reasons to
be recorded in writing;
11.6. Notice of
appearance in terms of Section 41-A CrPC be served on the accused within two
weeks from the date of institution of the case, which may be extended by the
Superintendent of Police of the district for the reasons to be recorded in
writing;
11.7. Failure to comply with the directions aforesaid shall
apart from rendering the police officers concerned liable for departmental
action, they shall also be liable to be punished for contempt of court to be
instituted before the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as
aforesaid by the Judicial Magistrate concerned shall be liable for departmental
action by the appropriate High Court
26. The aforesaid
decision, as is perceptible, is in accord with the legislative provision. The
directions issued by the Court are in the nature of statutory reminder of a
constitutional court to the authorities for proper 24 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 U.P and others :-
“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.”
27. Again, the Court in Joginder Kumar (supra), while
voicing its concern regarding complaints of human rights pre and after arrest,
observed thus:- “9. A realistic approach should be made in this direction. The
law of arrest is one of balancing individual rights, liberties and privileges,
on the one hand, and individual duties, obligations and responsibilities on the
other; of weighing and balancing the rights, liberties and privileges of the
single individual and those of individuals collectively; of simply deciding
what is wanted and where to put the weight and the emphasis; of 6 (1994) 4 SCC
260 25 deciding which comes first—the criminal or society, the law violator or
the law abider….” 28. In D.K. Basu v. State of W.B.7 , after referring to the
authorities in Joginder Kumar (supra), Nilabati Behera v. State of Orissa and
others8 and State of M.P. v. Shyamsunder Trivedi and others9 , the Court laid
down certain guidelines and we think it appropriate to reproduce the same:-
“(1) The police
personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags
with their designations. The particulars of all such police personnel who
handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the
arrestee shall prepare a memo of arrest at the time of arrest and such memo
shall be attested by at least one witness, who may either be a member of the
family of the arrestee or a respectable person of the locality from where the
arrest is made. It shall also be countersigned by the arrestee and shall
contain the time and date of arrest.
(3) A person who has
been arrested or detained and is being held in custody in a police station or
interrogation centre or other lock-up, shall be entitled to have one friend or
relative or other person known to him or having interest in his welfare being
informed, as soon as practicable, that he has been arrested and is being
detained at the particular place, unless the attesting witness of the memo of
arrest is himself such a friend or a relative of the arrestee.
(4) The time, place
of arrest and venue of custody of an arrestee must be notified by the police
where the next friend or relative of the arrestee lives outside the district or
town through the Legal Aid Organisation in the District and the 7 (1997) 1 SCC
416 8 (1993) 2 SCC 746 9 (1995) 4 SCC 262 26 police station of the area
concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person
arrested must be made aware of this right to have someone informed of his
arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be
made in the diary at the place of detention regarding the arrest of the person
which shall also disclose the name of the next friend of the person who has
been informed of the arrest and the names and particulars of the police
officials in whose custody the arrestee is
. (7) The arrestee should, where he so requests, be also
examined at the time of his arrest and major and minor injuries, if any,
present on his/her body, must be recorded at that time. The “Inspection Memo”
must be signed both by the arrestee and the police officer effecting the arrest
and its copy provided to the arrestee.
(8) The arrestee
should be subjected to medical examination by a trained doctor every 48 hours
during his detention in custody by a doctor on the panel of approved doctors
appointed by Director, Health Services of the State or Union Territory
concerned. Director, Health Services should prepare such a panel for all
tehsils and districts as well.
(9) Copies of all the
documents including the memo of arrest, referred to above, should be sent to
the Illaqa Magistrate for his record.
(10) The arrestee may
be permitted to meet his lawyer during interrogation, though not throughout the
interrogation.
(11) A police control
room should be provided at all district and State headquarters, where
information regarding the arrest and the place of custody of the arrestee shall
be communicated by the officer causing the arrest, within 12 hours of effecting
the arrest and at the police control room it should be displayed on a
conspicuous notice board.”
29. In Lalita Kumari
v. Government of Uttar Pradesh and others10 , the Constitution Bench, referring
to various provisions of CrPC, adverted 10 (2014) 2 SCC 1 27 to the issue of
conducting a preliminary enquiry. Eventually, the Court opined that the scope
of preliminary enquiry is not to verify the veracity or otherwise of the
information received but only to ascertain whether the information reveals any
cognizable offence and, thereafter, proceeded to state thus:- “120.6. As to
what type and in which cases preliminary inquiry is to be conducted will depend
on the facts and circumstances of each case.
The category of cases in which
preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family
disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption
cases
(e) Cases where there is abnormal delay/laches in initiating criminal
prosecution, for example, over 3 months‟ delay in reporting the matter without
satisfactorily explaining the reasons for delay. The aforesaid are only
illustrations and not exhaustive of all conditions which may warrant
preliminary inquiry.”
30. From the
aforesaid, it is quite vivid that the Constitution Bench had suggested that
preliminary enquiry may be held in matrimonial/family disputes. 31. In Rajesh
Sharma (supra), as is noticeable, the Court had referred to authorities in
Arnesh Kumar (supra) and Lalita Kumari (supra) and observed that:- “16.
Function of this Court is not to legislate but only to interpret the law. No
doubt in doing so laying down of norms 28 is sometimes unavoidable.11 Just and
fair procedure being part of fundamental right to life,12 interpretation is
required to be placed on a penal provision so that its working is not unjust,
unfair or unreasonable. The court has incidental power to quash even a
non-compoundable case of private nature, if continuing the proceedings is found
to be oppressive. 13 While stifling a legitimate prosecution is against public
policy, if the proceedings in an offence of private nature are found to be
oppressive, power of quashing is exercised.
17. We have
considered the background of the issue and also taken into account the 243rd
Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya
Sabha Committee on Petitions (September, 2011) and earlier decisions of this
Court. We are conscious of the object for which the provision was brought into
the statute. At the same time, violation of human rights of innocent cannot be
brushed aside. Certain safeguards against uncalled for arrest or insensitive
investigation have been addressed by this Court. Still, the problem continues to
a great extent.
18. To remedy the situation, we are of the view that
involvement of civil society in the aid of administration of justice can be one
of the steps, apart from the investigating officers and the concerned trial
courts being sensitized. It is also necessary to facilitate closure of
proceedings where a genuine settlement has been reached instead of parties
being required to move High Court only for that purpose.”
32. After so stating,
the directions have been issued which we have reproduced in paragraph 15
hereinabove.
33. On a perusal of
the aforesaid paragraphs, we find that the Court has taken recourse to fair
procedure and workability of a provision so 11 Sahara India Real Estate
Corporation Limited v. Securities and Exchange Board of India : (2012) 10 SCC
603, Para 52; SCBA v. Union of India : (1998) 4 SCC 409, Para 47; Union of
India v. Raghubir Singh (d) by Lrs. : (1989) 2 SCC 754, Para 7; Dayaram v.
Sudhir Batham : (2012) 1 SCC 333 12 State of Punjab v. Dalbir Singh : (2012) 3
SCC 346, Paras 46, 52 & 85 13 Gian Singh v. State of Punjab : (2012) 10 SCC
303, Para 61 29 that there will be no unfairness and unreasonableness in
implementation and for the said purpose, it has taken recourse to the path of
interpretation. 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 therefor, as we find, are beyond the Code and the
same does not really flow from any provision of the Code. 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. The directions issued
in Arnesh Kumar (supra) are in consonance with the provisions contained in
Section 41 CrPC and Section 41-A CrPC. Similarly, the guidelines stated in
Joginder Kumar (supra) and D.K. Basu (supra) are within the framework of the
Code and the power of superintendence of the authorities in the hierarchical
system of the investigating agency. The purpose has been to see that the
investigating agency does not abuse the power and arrest people at its whim and
fancy.
34. In Rajesh Sharma (supra), there is introduction of a
third agency which has nothing to do with the Code and that apart, the
Committees have been empowered to suggest a report failing which no arrest can
be made. The directions to settle a case after it is registered is not a
correct expression of law. A criminal proceeding which is not compundable 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 and the
High Court, considering the bonafide of the petition, may quash the same. The
power rests with the High Court. In this regard, we may reproduce a passage
from a three-Judge Bench in Gian Singh (supra). In the said case, it has been
held that:
- “61. … Inherent power is of wide plenitude with no
statutory limitation but it has to be exercised in accord with the guideline
engrafted in such power viz.:
(i) to secure the ends of justice, or
(ii) to prevent abuse
of the process of any court. In what cases power to quash the criminal
proceeding or complaint or FIR may be exercised where the offender and the
victim have settled their dispute would depend on the facts and circumstances
of each case and no category can be prescribed. However, before exercise of
such power, the High Court must have due regard to the nature and gravity of
the crime. Heinous and serious offences of mental depravity or offences like
murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim
or victim‟s family and the offender have settled the dispute. Such offences are
not private in nature and have a serious impact on society. Similarly, any
compromise between the victim and the offender in relation to the offences
under special statutes like the Prevention of Corruption Act or the offences
committed by public servants while working in that capacity, etc.; cannot
provide for any basis for quashing criminal proceedings involving such
offences. But the criminal cases having 31 overwhelmingly and predominatingly
civil flavour stand on a different footing for the purposes of quashing,
particularly the offences arising from commercial, financial, mercantile,
civil, partnership or such like transactions or the offences arising out of
matrimony relating to dowry, etc. or the family disputes where the wrong is
basically private or personal in nature and the parties have resolved their
entire dispute. In this category of cases, the High Court may quash the
criminal proceedings if in its view, because of the compromise between the offender
and the victim, the possibility of conviction is remote and bleak and
continuation of the criminal case would put the accused to great oppression and
prejudice and extreme injustice would be caused to him by not quashing the
criminal case despite full and complete settlement and compromise with the
victim.”
35. Though Rajesh
Sharma (supra) takes note of Gian Singh (supra), yet it seems to have it
applied in a different manner. The seminal issue is whether these directions
could have been issued by the process of interpretation. This Court, in
furtherance of a fundamental right, has issued directions in the absence of law
in certain cases, namely, Lakshmi Kant Pandey v. Union of India14 , Vishaka and
others v. State of Rajasthan and others15 and Common Cause (A Registered
Society) v. Union of India and another16 and some others. In the obtaining
factual matrix, 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 14 (1984) 2 SCC 244 15 (1997) 6
SCC 241 16 (2018) 5 SCC 1 32 erroneous.
However, 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. Therefore, we do not find anything
erroneous in direction Nos. 19(iv) and (v). So far as direction No. 19(vi) and
19(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. 36. We have earlier stated that some of the directions issued in Rajesh
Sharma (supra) have the potential to enter into the legislative field. A
three-Judge Bench in Suresh Seth v. Commissioner, Indore Municipal Corporation
and others17 ruled thus:
- “5. … In our opinion, this is a matter of policy for the
elected representatives of people to decide and no direction in this regard can
be issued by the Court. That apart this Court cannot issue any direction to the
legislature to make any particular kind of enactment. Under our constitutional
scheme Parliament and Legislative Assemblies exercise sovereign power to enact
laws and no outside power or authority can issue a direction to enact a
particular piece of legislation. In Supreme Court Employees’ Welfare Assn. v.
17 (2005) 13 SCC 287 33 Union of India18 (SCC para 51) it has been held that no
court can direct a legislature to enact a particular law. Similarly, when an
executive authority exercises a legislative power by way of a subordinate
legislation pursuant to the delegated authority of a legislature, such
executive authority cannot be asked to enact a law which it has been empowered
to do under the delegated legislative authority. …
” 37. Another three-Judge
Bench in Census Commissioner and others v. R. Krishnamurthy 19 , after
referring to N.D. Jayal and another v. Union of India and others20 , Rustom
Cavasjee Cooper v. Union of India21 , Premium Granites and another v. State of
T.N. and others22 , M.P. Oil Extraction and another v. State of M.P. and
others23 , State of Madhya Pradesh v. Narmada Bachao Andolan and another24 and
State of Punjab and others v. Ram Lubhaya Bagga and others25 , opined:- “33.
From the aforesaid pronouncement of law, it is clear as noon day that it is not
within the domain of the courts to embark upon an enquiry as to whether a
particular public policy is wise and acceptable or whether a better policy
could be evolved. The court can only interfere if the policy framed is
absolutely capricious or not informed by reasons or totally arbitrary and
founded ipse dixit offending the basic requirement of Article 14 of the Constitution.
In certain matters, as often said, there can be opinions and opinions but the
court is not expected to sit as an appellate authority on an opinion.” 18
(1989) 4 SCC 187 19 (2015) 2 SCC 796 20 (2004) 9 SCC 362 21 (1970) 1 SCC 248 22
(1994) 2 SCC 691 23 (1997) 7 SCC 592 24 (2011) 7 SCC 639 25 (1998) 4 SCC 117 34
38. 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), 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.
39. In view of the
aforesaid premises, the direction contained in paragraph 19(i) as a whole is
not in accord with the statutory framework and the direction issued in
paragraph 19(ii) shall be read in conjunction with the direction given
hereinabove.
40. 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
(supra), shall dispose of the same.
41. As far as
direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall
be governed by what we have stated in paragraph 35
42. With the
aforesaid modifications in the directions issued in Rajesh Sharma (supra), the
writ petitions and criminal appeal stand disposed of. There shall be no order
as to costs. …..………………………..
,CJI (Dipak Misra) …..…………………………..
,J (A.M. Khanwilkar) ..………………………….….,J
(Dr. D.Y. Chandrachud)
New Delhi; September
14 , 2018.
