Modified Guidelines On 498a On Various Aspect
By way of this article I am going to discuss what the supreme court said in Rajesh Sharma vs State of U.P AIR 2017 SC by laying down various guidelines related to the section 498A IPC. As the sociological school of jurisprudence suggested that the law has to be changed in accordance with the need of the society hence considering the misuse of section 498A IPC, the apex court had modified the guidelines to a large extent in a recent decision Social Action Forum for Manav Adhikar and Another vs. Union of India & others (Writ Petition No.73 of 2015).
The Apex Court in various decisions issued guidelines in respect of arrest such as Arnesh Kumar vs State of Bihar and Another (2014) 8 SCC 273, Joginder Kumar vs State of U.P (1994) 4 SCC 260 and D.K. Basu vs State of Bengal (1997) 1 SCC 416 but despite of guidelines misuse of various provision of laws is at a peak.
The Supreme Court having taking note on the misuse of section 498A IPC issued various guidelines in Rajesh Sharma Vs. State of U.P. AIR 2017 SC 3869 in relation to arrest, family welfare committees designated Investing officer and investigation of complaints made to police officer, settlement, bail in this cases, clubbing of all connected cases by the district judge and personal appearance of parties.
It was contended by the petitioner that due to the absence of any uniform system of monitoring review of indents of violence against married women which has led to a dilution of the legislative intent behind section 498A IPC. It is further contended that the social purpose behind section 498A 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 qualification and restrictions prescribed by various decisions of this court in abovementioned case. It was further contended that mostly well- educated women abuse the penal provision as she knows that the offence is both cognizable and non-bailable by placing the man behind the bars. But this cannot be the ground of denying the poor and illiterate women the protection that is offered by Section 498A IPC so there is need to create awareness.
There are following contentions on behalf of union of India after perusal of the nature and scope of the section 498A IPC:
1. Constitution of Family Welfare Committees (FWC) in each district is an extra judicial in the first instance and further there has been a direction that till such time a report of committee is received, no arrest should be made. Hence constitution of FWC to look into the criminal complaint under section 498A IPC is contrary to the procedure prescribed under Criminal Procedure Code.
2. Entrustment of power to dispose of the proceeding under section 498A IPC b the District and Session Judge or any other judicial officer nominated by him in district in cases where settlement is arrived at, are impermissible as the offence under this section is non-compoundable hence such power could not have been conferred.
3. Recovery of disputed dowry article may not itself be a ground for denial of bail which is discretion of court to decide the application of grant of bail in the facts and circumstances of the case. Hence this tantamount to a direction which is not warranted in law.
4. There was no direction as to dispensation of personal appearance by this court hence personal appearance of outstation of family members is unwarranted.
After considering the contentions of parties and after perusal of various judicial precedents, a need was felt to modify above directions not as a whole but to an extent. So for no let us discuss what the apex court view after discussing the entire case.
1.
Constitution of Family Welfare Committee and its power
It should be noted that in a criminal system there are only two organs first is the investigation agency whose duty is to investigate the offence and other is the Adjudicating Authority i.e. court whose duty is to give decision on the case investigated by the investigating agency. Hence there is an introduction of third agency which has nothing to do with the code apart that the committees have been empowered to suggest a report falling which no arrest can be made. Further the direction to settle a case after it is registered is not correct view. Hence the constitution of FWC would be erroneous.
2. Bail application
When an application of bail is filed proper condition can be imposed after perusal of the case but recovery of disputed dowry articles may not itself be a ground while rejecting and application for grant of bail under section 498A IPC. So the direction as issued by the apex court in Rajesh Sharma’s case that issuance of red corner notice to persons residing outstation has been left untouched.
3. Direction as to personal appearance
So far as the direction as to exemption from personal appearance is concerned, an application under section 205 Cr.P.C or section 317 Cr.P.C. depending upon the stage at which exemption is sought.
4. Inherent powers of the High Court under section 482 Cr.P.C
In Rajesh Sharma’s case it has been directed that if the settlement is arrived at between the parties the district judge may dispose of the proceeding accordingly but that was against the provision of the law. Hence from now if settlement arrived at the parties can approach the High Court under section 482 Cr.P.C and the high court keeping in view the law laid down in Gian Singh case shall dispose of the same.
Conclusion
From the above discussion now we can conclude that:
1. Constitution of family welfare Committees in each District is no longer in existence and apart from that FWC had no role in either investigation or inquiry or trial.
2. Bail application cannot be rejected merely on the the ground of denial of disputed dowry article and restriction can be imposed while granting the bail such as impounding of passport etc.
3. Persons residing in outstation can be summoned by way of red corner notice.
4. Only the high court under section 482 Cr.P.C. can quash the proceeding if the settlement has been arrived at between the parties.
5. It has also directed that the Director-General of Police of each State to ensure that investigating officer who is in charge of investigation of cases should be imparted rigorous training with regard to the principles stated by the apex court relating to arrest.
