What is a warrant case? Difference between summons and warrant procedure case

  

What is a warrant case?

The Warrant Case's Meaning: – A warrant case is one involving an offense that carries a sentence of death, life in prison, or more than two years in prison. Most of the time, these are cognizable offenses that the police arrest without a warrant for because they are serious or grievous. Chapter 19 of the Code of Criminal Procedure defines the Warrant case's procedure. In warrant cases, the accused is put on trial. In Section 2 (x) of the 1973 Code of Criminal Procedure, the term "warrant case" is defined.

 

The duration of a conviction for any offense, punishable by a fine of Rs. 1,500, is determined by the criteria of a summons and warrant case. 50/-, the case becomes a summons.

 

The issuance of a warrant or summons in any case does not alter the nature of the case; the warrant is issued in the case of a summons, and the case does not become a warrant case. A warrant is issued with the intention of bringing an accused person before the court who has not shown up, even after being summoned.

 

The following is the procedure for the trial of a warrant case: – Section 220-237 of the Criminal Procedure Code specifies the procedure for the trial of warrant cases before a Court of Sessions based on a police report:

 

Section 225 describes the Public Prosecutor's trial: The Public Prosecutor is in charge of the prosecution in a Court of Session. In every trial before the Court of Sessions, the State is represented by the Public Prosecutor.

Starting the Prosecution Case (Section 226): – The Prosecutor is required to begin his case by outlining the charges against the accused and the evidence he proposes to use to establish the accused's guilt whenever the accused is brought before the Court for a violation of Section 209 of the Criminal Code. At the beginning of the prosecution, it is not necessary to present all of the evidence documents to the Court of Sessions. The Prosecutor is obligated to address the case's witnesses and propose witnesses.

Section 227: Discharge If the judge determines that there is insufficient evidence to proceed against the accused after reviewing the case records and submitted documents and hearing the prosecution and the accused, he must discharge the accused in accordance with Section 227. Additionally, the reasons for the accused's release must be recorded.

Charge Framing (Section 228): – If it is determined that the accused has committed the offense, which is only triable in the Court of Session, the Court will formulate the charge against the accused after considering the record of cases and documents as evidence and hearing the prosecution and the accused. The judge may charge and transfer the case to a Chief Judicial Magistrate or any other Judicial Magistrate of First Class if the case is not exclusively triable in the Court of Session.

Conviction on Guilty Plea (Section 229): – The Court is permitted to accept the accused's plea under this section, and he also ensures that the accused's plea is made independently and without any influence. After recording the plea, the judge may, at his discretion, find the accused guilty.

Date of Prosecution, Evidence, and Prosecution Evidence: – According to Sections 230 and 231 respectively, the judge may issue any process necessary to compel the production of any document, the attendance of the witness, or any other thing if the accused refuses to plead guilty or does not plead or claims to be tried. The judge will then examine all of the prosecution's evidence.

Section 232: Acquittal: – A judge can order an acquittal under Section 232 if there is no evidence against the accused or if the court finds the evidence the prosecution presented against the accused to be unfounded.

Protection (Section 233): In the event that the accused is not found guilty, preparations for his defense may begin, and he will be required to present supporting evidence. The judge will make a record of the written evidence that the defense has provided.

Acquittal or Conviction Decision (Section 234): – The judge will make a decision regarding the case after hearing the arguments (Section 234 CrPC). After the hearings of both the prosecution and the defense, the verdict—whether acquittal or conviction—is made. According to Section 236 of the CrPc, the judge may call for the evidence of the previous charge if the accused has been convicted under Section 211(7) and does not admit the previous conviction.

The procedure for trial of warrant cases by Magistrate established on police report is outlined in Sections 238-250 of the Criminal Procedure Code, and it is as follows: –

 

CrPC Section 207: – When an accused person appears in court or is brought before the Magistrate at the beginning of the trial, they are required to receive a copy of the police report and any other relevant documents upon the establishment of any warrant case.

Release of the accused on an unfounded charge (Section 239): – After receiving the police report and any other documents from the accused and making them available to them, the Magistrate must take each report into consideration. He will have a fair chance to be heard by the accused and the prosecution (commonly referred to as a charge argument); If necessary, the magistrate will conduct an investigation into the accused. In accordance with Section 239, the magistrate is obligated to acquit the accused if he determines that the charge against him is unfounded. Additionally, he will investigate the case's presumption.

Charges' framing (Section 240): – If the Magistrate is of the opinion that there is probable cause to believe that the accused has committed an offense, he or she is authorized to try the accused for that offense, which, in his or her opinion, may be severe enough to punish the accused. The accused will then be charged in writing, and the trial will begin.

Conviction of charge of blameworthy: - The Magistrate must record the accused's guilty plea and may, at his discretion, convict him.

Prosecution Evidence (Section 247): – The Magistrate is obligated to set a date for the witnesses' examination in accordance with Section 247 if the accused denies guilt and asserts that they will be prosecuted. The Magistrate sets a date for the examination of prosecution witnesses if the accused refuses to plead, does not plead, or claims to be tried. Additionally, upon request from the prosecution, the Magistrate may summon any witness and require him to produce the documents.

Section 313 of the Statement of Accused: – In accordance with Section 313 of the Criminal Procedure Code, the accused is asked to explain the circumstances that support the case against him. Questions and answers given by the accused are recorded during the examination.

Defendant's Evidence (Section 243): – According to section 243 of the prosecution witnesses, the accused must produce the defense witnesses and bear the costs of coercing their appearance. The accused confronts the defense and presents the evidence. If the accused provides written evidence, the Magistrate records it.

Argument and conclusion: – Argument and the Magistrate's decision comprise the final two stages. During the argument, the defense presents their evidence, the prosecutor presents the case, and the accused or his attorney must respond. The Magistrate's acquittal or conviction of the accused follows the argument.

Difference between Warrant case and Summons case

S.NO.	WARRANT  CASE	SUMMONS CASE
1.	In Warrant case, the punishment is of death penalty, life imprisonment or imprisonment more than 2 years.	In summon case, the punishment will not exceed more than 2 years.
2.	Procedure of Warrant case is described under Chapter-19 of CrPC from Section 238 to section 250.	Procedure or summon case is described under Chapter-20 of CrPC from Section 252 to section 259.
3.	It is mandatory to frame charges against accused.	It is not mandatory to frame charges against accused.
4.	Its objective is to notify the person about the legal obligation to appear in the court.	To bring the accused to the court who has ignored the summons and did not appear to the court.
5.	In this, authority is given to police officer to bring and produce the accused to the court.	In this, instructions are to produce any documents or other thing in the court.

Trial of summon cases under Code of Criminal Procedure, 1973

 

Important Sections: 

Chapter 20 – Trial of Summons-Cases By Magistrates

Section 251 – Substance of accusation to be stated

When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.

Section 252 – Conviction on plea of guilty

If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion convict him thereon.

Section 253 – Conviction on plea of guilty in absence of accused in petty cases

1. Where a summons has been issued under section 206 and the accused desires to plead guilty to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter containing his plea and also the amount of fine specified in the summons.
2. The Magistrate may, in his discretion, convict in his accused in his absence, on his plea of guilty and sentence him to pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards that fine, or where a pleader authorised by the accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as aforesaid.

Section 254 – Procedure when not convicted

1. If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
2. The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.
3. A Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.

Section 255 – Acquittal or conviction

1. If the Magistrate, upon taking the evidence referred to in section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilt, he shall record an order of acquittal.
2. Where the Magistrate does not proceed in accordance with the provisions of section 325 or section 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.
3. A Magistrate may, under section 252 or section 255, convict the accused of any offence triable under this Chapter which form the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons, if the Magistrate is satisfied that the accused would not be prejudiced thereby.

Section 256 – Non-appearance or death of complainant

1. If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
   
   Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
2. The provisions of Sub-Section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

Section 257 – Withdrawal of complaint

If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.

Section 258 – Power to stop proceedings in certain cases

In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case release, the accused, and such release shall have the effect of discharge.

Section 259 – Power of Court to convert summons-cases into warrant cases

 

Introduction

A "summon" is a document that tells the person who has been served with it to appear before the court and respond to the complaint that has been filed against him. The accused is summoned by the Magistrate in accordance with section 204(1)(a) of the Criminal Code. P.C, 1973. “ A "summon case" is not a "warrant case" but rather a case involving an offense [1]. Summon cases can be derived from the definition of a warrant case, which states that crimes punishable by death, life in prison, or imprisonment for more than two years are referred to as warrant cases [2]. Therefore, summon cases are those for which the penalty will not exceed two years in prison. It's possible to say that summons cases aren't very serious, so they need to be decided quickly without sacrificing a fair trial. Sections 251 to 259 of the Cr. outline the procedure for dealing with such issues. P.C., 1973, which is less serious and formal than other trials (session trial, warrant cases initiated outside of the police report, and warrant cases initiated within the police report).

The procedure for summons cases is the primary focus of this article. The general procedures for a summons case are the same as for other trials, but this one is less formal in order to expedite the process.

 

Procedure of trial in summon-cases

Explanation of the particulars of the offence

While Section 251 states that it is not required to file charges, it does not forbid the accused from explaining the specifics of the offense when they are brought before the Court. This is done to alert the accused to the allegations that have been leveled against him. Because this error can be fixed under section 465 of the code [3], if the details are not provided, it will not affect the outcome of the trial or prejudice the accused. Sections 252 and 253 must be followed if the accused is to be found guilty under section 251, which mandates that courts inquire about the accused's guilty plea.

 

Conviction on plea of guilty

Sections 252 and 253 allow for a guilty plea to be accepted as evidence. In general, section 252 allows for a guilty plea, while section 253 allows for a guilty plea in minor cases. If the accused responds with an affirmative, the court will, in accordance with the law, record the plea in the accused's own words, on the basis of which the accused may be found guilty at the Court's discretion. If the answer is no, the court must proceed with Section 254 further. The accused will not be found guilty even if he or she enters a guilty plea and the charges against him or her do not constitute any offense. If the accused is found guilty on the plea, the magistrate must proceed in accordance with section 360; otherwise, the magistrate must hear the accused's plea and impose a legal sentence. The magistrate has discretion over whether to convict on the plea. The magistrate must proceed in accordance with Section 254 if the guilty plea is rejected.

 

Procedure if the accused not convicted on plea

Section 254 provides about both prosecution and defence case if the accused not convicted on plea under section 252 and 253.

 

Prosecution case

The accused will be heard by the magistrate, who will also take all of the evidence. The prosecution will have the opportunity to present its case during the hearing by presenting the facts and circumstances that make up the case and by revealing the evidence that he used to support the case. On behalf of the prosecution, the magistrate issues a summons to any witness to appear and produce any document or object. In accordance with Section 274, the magistrate will prepare the memorandum of the evidence. In summons cases, as in other trials, the magistrate will adhere to sections 279, which requires the accused to interpret the evidence, and 280, which requires the witnesses to record their demeanor.

 

Hearing of the defence: – (Defence Case)

The court will proceed with the defense hearing under section 254(1) following the examination of the defense under section 313 and the evidence presented by the prosecution under section 254. During the defense's hearing, the accused will be asked to respond to the prosecution's evidence. In any case, the criminal trial will be fundamentally flawed because the accused will not be heard, and section 465 cannot correct this. The accused's evidence will be recorded in the same way that it would in a prosecution under sections 274, 279, and 280. He will be permitted to present his arguments in accordance with Section 314 after the defense has presented their evidence.

 

Acquittal or conviction

If the magistrate finds the accused not guilty, he will acquit them after recording the evidence under 254. The Magistrate must proceed according to Section 360 or 325 if the accused is found guilty; otherwise, he must be sentenced in accordance with the law.

 

Non-appearance or the death of the complainant

Section 256 says that if the complainant does not show up on the date set for the accused to appear, the court can acquit the accused unless there is a good reason to move the case to another day. Section 256(1) also applies in the event of the complainant's death. The Supreme Court can acquit the defendant [4] if the deceased complainant's representative does not appear for 15 days where the defendant appeared.

 

Discharge in case of Summon cases

Section 258 grants the first class Magistrate permission to halt the case at any stage with approval from the Chief Judicial Magistrate in summons cases initiated without a complaint. As a result, if he stops the proceeding "after record of the evidence," his decision is one of acquittal; if he stops "before record of the evidence," his decision is one of release, which has the same effect as discharge.

The fact that a magistrate cannot dismiss a summons case based on a complaint even if there is insufficient evidence to proceed against the accused is contentious. This is because the Magistrate will recall his own order if he does so. The issue of process, according to the Supreme Court, is the Magistrate's interim order, not the judgment, so it can be recalled. The magistrate is not authorized to drop the case in such a situation by any provision [5]. The Magistrate is unable to discharge, review, or recall the process's order in summons cases based on a complaint. In summons cases, the Magistrate of the trial court does not have the authority to drop the proceeding in the absence of such a provision in the law. The case cannot be dropped; the trial must be concluded by the court.[6] Under section 482 of the Cr, an individual may approach the High Court. P.C. under these conditions [7]. In summons cases brought on the basis of a complaint, the accused will either be found guilty or acquitted.[8]

 

Conclusion

In order to expedite the resolution, the summon case trial is less formal than other types of trials. Therefore, the fact that Section 258 does not grant the Magistrate the authority to dismiss the case, even in the absence of sufficient grounds, is unfair to the accused. In the K.M. Matthew case, the court decided that the Magistrate has the implied authority to drop the case if the accusation against the accused does not prove any crime was committed. It has opposed a number of judicial rulings. In the Arvind Kejriwal case, the Supreme Court ruled that the law does not specifically authorize the Magistrate to drop the case under section 258 and assigned the case to the high court under section 482. However, it is important to keep in mind that the High Court must also examine the case once more to determine whether there is sufficient evidence to proceed against the accused. All of this will impede the primary goal of the summons case, which is a speedy trial. Even though the Supreme Court dealt with this issue in a number of cases, it needs to be looked at again to ensure that the accused get a fair trial and that their rights are protected in these situations.

 

The below flow chart may be helpful to summarise the procedure:

References:

[1] Section 2(w) of Criminal procedure code, 1973

[2] Section 2(x) of Criminal procedure Code, 1973

[3] Manbodh Biswal v. Samaru Pradhan 1980 Cri LJ 1023(ori); Nayan Ram v. Prasanna Kumar, 1953 cri LJ 1574;

[4] S. Rama Krishna v. S Rami Reddy (2008) 5 SCC 535

[5] K. M. Matthew v. State of Kerala (1992) 1 SCC 217

[6] Subramanium Sethuraman v. State of Maharashtra & Anr, (2004) 13 SCC 324

[7] Arvind Kejriwal and others v. Amit Sibal & Anr (2014) 1 High Court Cases (Del) 719

[8] R.K. Aggarwal v. Brig Madan Lal Nassa & Anr 2016 SCC Online Del 3720

 

Post on Social Media – Legal Responsibility

 The technological age has produced digital platforms – not like the railway platforms where trains were regulated on arrival and departure. These digital platforms can be imminently uncontrollable at times and carry their own challenges. One form of digital platforms are the intermediaries that claim to be providing a platform for exchange of ideas without any contribution of their own. It is their say that they are not responsible for all that transpires on their platform; though on complaints being made, they do remove offensive content based on their internal guidelines. The power and potentiality of these intermediaries is vast, running across borders. These are multinational corporations with large wealth and influence at their command. By the very reason of the platform they provide, their influence extends over populations across borders. Facebook is one such corporation. (Ajit Mohan & Ors. Vs Legislative Assembly National Capital Territory Of Delhi & Ors. WRIT PETITION (C) NO.1088 OF 2020; Supreme Court of India).

Social media has become part and parcel of our daily life and most of the people are somehow remain engaged in social media, share their feelings, pictures and others. We also share our opinion on different issues – that may be political or otherwise. Now we should know our legal responsibilities attached to those posts.
In this article, I will try to analyze different case laws through which we can derive an idea of our responsibilities attached to social media posts.

 In the case of Manik Taneja & Anr vs State Of Karnataka & Anr (CRIMINAL APPEAL NO. 141 OF 2015 decided on 20.01.2015) the Hon’ble Supreme Court observed that the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "Criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the minds of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on the Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of appellants posting a comment on the Facebook may not attract ingredients of criminal intimidation in Section 503 IPC.
In Patricia Mukhim vs The State of Meghalaya (Criminal Appeal No.141 of 2021 decided on 25.03.2021) the Hon’ble Supreme Court observed that the question that arises for our consideration is whether the Facebook post dated 04.07.2020 was intentionally made for promoting class/community hatred and has the tendency to provoke enmity between two communities. A close scrutiny of the Facebook post would indicate that the agony of the Appellant was directed against the apathy shown by the Chief Minister of Meghalaya, the Director General of Police and the Dorbar Shnong of the area in not taking any action against the culprits who attacked the non-tribals youngsters. The Appellant referred to the attacks on non- tribals in 1979. At the most, the Facebook post can be understood to highlight the discrimination against non- tribals in the State of Meghalaya. However, the Appellant made it clear that criminal elements have no community and immediate action has to be taken against persons who had indulged in the brutal attack on non-tribal youngsters playing basketball. The Facebook post read in its entirety pleads for equality of non-tribals in the State of Meghalaya. In our understanding, there was no intention on the part of the Appellant to promote class/community hatred. As there is no attempt made by the Appellant to incite people belonging to a community to indulge in any violence, the basic ingredients of the offence under Sections 153 A and 505 (1) (c) have not been made out. Where allegations made in the FIR or the complaint, even if they are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the FIR is liable to be quashed.
In a case, (Neetu Yadav vs Sachin Yadav TRANSFER PETITION (CIVIL) NO.455 OF 2020 decided on 30.09.2020) the allegations of the petitioner claimed affinity of the other side with state Judiciary based on a Facebook Post while the Hon’ble Supreme Court observed as follows: “ ... that the entire family of the petitioner is “influentially associated with the judicial structure of Madhya Pradesh”; that the petitioner’s mother retired from a senior Administrative position from the District judiciary; that the petitioner's mother has very good family relations with the judicial officers who worked in the district; that the petitioner's mother is still closely associated with the “Unionised Cadre of District Court and their Cooperative Societies”; that several officials of the Indore Court used to visit her home for each and every small function in their family; that due to the managerial skill of the petitioner's mother and her influence, the petitioner managed to have the first notice in the divorce petition returned unserved; that the petitioner’s brother is a distinguished lawyer practising in the High Court of Madhya Pradesh and the Subordinate Courts for more than twelve years; that the petitioner’s brother has friendly relationship with the judicial officers of the District Court, as can be evident from his Facebook page; that the petitioner’s brother is an associate of one Mr. Sunil Choudhary who was the President of the District Bar Association, Indore: that he is politically well connected and has connection with the sitting member of the Parliament who was also a Judicial Officer (retired); that the petitioner’s brother is an active member of the Indore Bar Association and is a close friend of many leaders of the Bar; that the petitioner’s younger brother is working in the Information Technology Department, Indore Bench of the High Court of Madhya Pradesh and that, therefore, it is not possible for the respondent to get justice through free and fair hearing.”

“… To prove his contention regarding the status of the petitioner’s family and the influence that they allegedly have, the respondent has filed print outs of a few pages from the Facebook account of the petitioner’s brother. While one of those print outs has photographs taken on the occasion of a cricket tournament held under the aegis of Indore Bar Association and another print out relates to the greetings extended to the Ex¬President of Indore Bar Association, the print outs of all other Facebook pages contain nothing other than the photographs of the petitioner’s brother with comments revolving around some joyous occasions.
I do not know how the pictures taken on the occasion of a cricket tournament conducted by a Bar Association and witnessed by a few judicial officers can be an indication of the influence exerted by the petitioner’s family on the entire district judiciary, merely because the judicial officers and Advocates have stood shoulder to shoulder on that occasion. It was not a private event but an event open to all lawyers of the District Bar. The fact that the petitioner’s brother who is a lawyer, has a Facebook page and that the same has lot of followers and that it attracts a lot of comments and likes cannot be the basis to conclude that the petitioner’s brother is very influential with the local judiciary.”

In Md. Sarfaraj vs The State of Bihar (Criminal Misc Case No. 67182 of 2022) the Hon’ble Patna High Court granted anticipatory bail to the accused who allegedly made derogative statement in Facebook against the Hindu Goddess and case was registered under section 153(A)/295(A) of IPC read with section 66 of the Information Technology Act.

Conclusion: With the passing of days, cases on Cyber Crime is on sharp rising graph in India along with the rest of the world. The more cases will be registered, the analysis of the different provisions of Cyber Laws will come up. But till now, it can be safely stated that post in social media though may create sentimental issues in the mind of standalone person or a group or otherwise, it enjoys the protection of freedom of speech and expression ensured by the Constitution of India. 

Section 498A IPC: Whether it should be repealed to avoid its misuse?

 Introduction to Section 498A IPC:

S. 498A. 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 willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave 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.]

 Section 498A was introduced in 1983 to protect married women from being subjected to cruelty by their husbands or relatives.

What was the need of the Law:

The necessity for a legislation prohibiting harassment relating to dowries has existed for millennia. Between males and women, women have historically had more disadvantage. The inequality begins when boys are given preference in education over girls as young children. Second, many of people continued to view females as a financial burden since they would require the family to pay the dowry upon marriage. On the other side, the new bride's family would give them money and property as a dowry if they produced a boy kid. Almost 90% of young bride fatalities back then had to do with dowries.

Women are frequently coerced, beaten, intimidated, or tormented into giving in to their demands. The most hotly contested portion of the IPC, Section 498A, aids the lady in approaching the legal system and punishing the perpetrator. The number of IPC offences against women has grown over time, and Delhi, is where the majority of incidents are recorded.

According to the law's written definition, cruelty is any intentional behaviour that puts a woman in danger of committing suicide, serious bodily harm, or serious threat to her mental or physical health. The legislation further stipulated that harassing a woman with the intention of forcing her or a member of her family to accede to an unlawful demand for money, property, or valued security, or because she or a member of her family declined to accede to the demand, would be punishable. Nonetheless, in many instances, women have disregarded the law in an effort to defraud their husbands and families in order to make money or put their family through hardship.

While the Supreme Court has referred to the misuse of the clause as "legal terrorism," some governments have refrained from taking action out of concern that they will be branded anti-women and lose their base of support. The law conveniently ignores how it leaves the male gender defenseless while giving women the ability to speak out against any prejudice they face in the future. Male suicide rates are higher than female suicide rates, and men have more mental health problems than women do.

One cannot deny that the legislation was passed with the goal of empowering women to stand out for themselves and access the legal system of the nation. The prevention of women being exploited is one of the main advantages of providing this part. Any woman who experiences the kind of cruelty outlined in this section will be deemed to have committed a crime, and the offender might face up to three years in jail and a fine. Yet, the law has encouraged women to come forward and report domestic violence.

Thoughts behind the provision:

In Indian society, women empowerment is very much required. Unless the female citizen can be uplifted, the nation as a whole cannot proceed towards development, better to say sustainable development. With this philosophy, our legislature enacted the provision by way of amendment of IPC and also inserted various other provisions in various other Acts.

The protection of married women from abuse by their husbands or the relatives of their spouse is the goal of Section 498-A. The maximum punishment is three years in jail and a fine. The word "cruelty" has a broad definition that encompasses acts of harassment intended to coerce the lady or her family into granting any illegal demand for money or other important security, as well as actions that physically or psychologically hurt the woman's body or health. The final portion of the clause covers harassment against women based on their capacity to pay dowries. The creation of conditions that encourage the lady to commit suicide is one aspect of "cruelty."

Misuse of Section 498A in the modern era

A violation of this segment is carried out by way of women by means of growing frivolously fake allegations towards their husbands with the goal of getting some cash or just paining the circle of relatives. This phase’s abuse is increasing chop-chop and therefore the girls commonly apprehend their husbands.

Segment 498A was designed and inserted into the criminal framework by means of the lawmakers with the idea of shielding women from cruelty, harassment and other offences. But while move-investigations are accomplished to check the validity of those legal guidelines, the number of acquittals relative to convictions became extra. Hence, person who brought 498A into motion conceiving it as a shield towards cruelty for women, i.E., the ultimate court docket, is now considering it as felony terrorism. Because misuse of segment 498A diminishes its actual credibility. That is certainly one of numerous motives for calling it an anti-male regulation. Although there are massive complaints, or even large-scale misuse has been diagnosed by means of the judiciary, there is no dependable facts based totally on the empirical examine concerning the extent of the alleged misuse.

In case of, Savitri Devi v. Ramesh Chand & Ors, the Hon’ble Court especially regulates the abuse linked with the manipulation of the legal guidelines to such an quantity that it was completely motivated via the have an effect on of marriage itself and for this reason found not to be sensible for the welfare of the massive network. The court docket considered that government and lawmakers had to assessment the case and the prison provisions to save you it from going on.

Within the case of, Saritha v. R. Ramachandran, the Court mentioned the reverse fashion and requested a non-cognizable and bailable offence from the law commission and Parliament. However, it become the court docket’s requirement to sentence wrongdoing and to guard the victim from what takes place once the victim will become the abuser. Right here is what treatment the husband will have. On this floor, the lady receives to divorce her husband and remarry or in the shape of reimbursement may gain coins.

In the case of Anju v. Govt. Of NCT of Delhi, in the case, the wife of the Petitioner challenged the order of the decrease court, wherein the Court discharged the charges in opposition to the respondents beneath section 498A/34 of the Indian Penal Code.

In appreciating the records of the case, the Court mentioned that inside the FIR, the wife of the Petitioner in a single breath named all individuals of the own family without any precise function being assigned to any of them. Accordingly, no information had been furnished as to when the recorded times allegedly occurred, or any information to verify or corroborate the allegations towards relatives of the spouse. The Court additionally noted that the allegations against the respondents were pretty well known and unspecific. The plaintiff did not point out a date, time, month, or year while she changed into subjected to beating them. In view of the aforementioned facts and situations of the case, the excessive court of Bombay upheld the order of the Revisional court docket and held that the Court had made no mistake in concluding that, apart from the overall and omnibus allegations that roped in all family members, there is no recorded cloth to justify the framing of prices below segment 498A IPC.

Within the case of, Chandra Bhan v. Nation, the Hon’ble Court added the stairs to save you the misuse of this segment:

·        FIR must no longer be frequently suggested as such;

·        Police endeavour must be to carefully screen lawsuits and then sign in FIR;

·        No case needs to be registered underneath phase 498-A/406 IPC without the prior authorisation of DCP / Addl. DCP;

·        Before FIR registration, all feasible reconciliation efforts ought to be made and, if it is observed that there is no opportunity of settlement, essential steps should be taken inside the first example to make sure that stridhan and dowry articles are again to the complainant;

·        The arrest of the important thing accused can handiest be made after a right investigation and with the previous approval of the ACP / DCP has been done;

·        Inside the case of collateral accused including in-laws, prior approval of DCP should be there on the report.

Inside the case of, Sushil Kumar Sharma v. Union of India and others, the ultimate Court held that the purpose of the availability is to save you a danger to the dowry. However, as the petitioner rightly happy that many instances have come to mild where the proceedings are not bonafide and are filed with oblique motive. In those instances, the acquittal of the accused will not wash out the ignominy incurred for the duration of and earlier than the court in any case. Unfavorable media interest additionally contributes to the situation.

Subsequently, the question is what remedial steps may be taken to deter misuse of the properly-intentioned clause. Simply because the availability is constitutional and intra vires, it does now not allow unscrupulous human beings to wreck non-public vendetta or unleash harassment. Hence, it can emerge as important for the legislature to locate methods to deal as it should be with the makers of frivolous complaints or allegations. Till then, beneath the current gadget function, the Courts have to attend to the situation.

However new lawful terrorism can be unleashed by way of misuse of the availability. The object of the regulation is to use a shield and now not the palms of an attacker. There is no doubt of the investigative organization and courts treating the allegations gently. In matters relating to dowry torture, dying and cruelty, they cannot comply with any straitjacket components. It cannot be misplaced sight that the closing goal of any felony machine is to reach the reality, punish the guilty and protect the innocent. A few preconceived concept or notion has no scope. The complainant strongly claims that the enforcement agencies and the courts begin with the presumptions that the accused are guilty and that the plaintiff speaks the truth. This argument is simply too huge and generalized. Some statutory presumptions are drawn that are once more reprehensible. It should be mentioned that the role of the investigating organizations and the courts is a watchdog and not a bloodhound.

Their aim might be to make sure that a harmless person is not made to suffer due to baseless, groundless, and malicious accusations. It is similarly undisputed that there is no direct proof available in lots of instances, and that the courts have to act on circumstantial proof. The regulation advanced in relation to circumstantial evidence which should be held in mind while coping with these instances.

Many women’s rights teams pass towards the concept of creating the crime a non-cognizable and bailable one assuming this offers the defendant a chance to get away prosecution. What this might do, even though, is that it's going to offer the man or woman with a chance and, in flip, sell the accomplishment of the ends of justice. Justice will shield the weaker and make sure that the incorrect-doer receives a hazard to say back his/her due. Whilst women suspect their husbands under phase 498A IPC by means of making the crime and unrecognizable, if the character is harmless, he does no longer get a quick possibility to induce justice and delayed justice is denied justice.

That, the lawmakers will prescribe a way to create this section objectively to a person who has decided that the proper birthday party is punished and therefore justice is granted to the wrong man or woman. Girls’ role remains risky in India. They nonetheless need rights in society to mitigate themselves, but generally they forget to recollect the rights of others so long as their unit in the place of rights is guaranteed. In recent times’ educated lady ought to agree with the slogan of equality and constant call for however the sample is slowly getting reversed.

Due to the fake accusations and the immoral exercising of phase 498A, the innocent, i.e. The husband and his family, are exponential to suffer. Some of the men surrender and dedicate suicide for the duration of this period of hardship and ignominy. Here the regulation needs to exercise the strength with thorough investigation and pass-examination of the complete be counted in a simply way.

Who are responsible for the misuse:

Now a very natural question arises in my mind about who are responsible for this misuse? Whether women can only be blamed for it or other person or authority by virtue of their action or non-action are similarly responsible for the misuse by allowing the women to misuse the provision.

Let us discuss the point from a different angle. I was discussing with my students in a class whether the invention of dynamite is a blessing or a curse and my got the best answer from them in the following line:

         --- “That depends on you Sir”

While discovering new thoughts, scientists are guided via ethics. You can think about ethics as being able to decide whether an concept or action is proper or incorrect. Does an invention help people or hurt people? Can an invention do both? Let us look at an example: the invention of dynamite by means of Alfred Nobel.

Alfred Nobel become a Swedish scientist. While Nobel turned into in school, he met an Italian chemist named Ascanio Sobrero who determined nitroglycerin. Nitroglycerin could be very dangerous due to the fact it may blow up without caution. Nobel wanted to make nitroglycerin safer and extra useful. He observed that adding clay to nitroglycerin made a more secure product, which he called dynamite. Later, he created blasting caps to blow up the dynamite from a distance with a fuse. Those inventions allowed the product for use greater appropriately for activities like building tunnels and canals or doing away with massive rocks. During his existence, Nobel advanced extra than 355 inventions.

How does the dynamite assist in putting off huge rocks? The nitroglycerin in dynamite offers off energy to interrupt apart rocks and different difficult objects while it's far exploded. There are styles of strength: capability electricity is saved power and kinetic strength is the electricity that an item has because of its movement. The nitroglycerin in dynamite has stored strength that is given up quick while its miles exploded. The very brief formation of gases produced when the molecules ruin aside produces the kinetic electricity. The force of this electricity can damage apart rocks.

Many inventions locate makes use of other than the ones for which they had been designed. Nobel created dynamite to help human beings in constructing and mining, however he and others also used dynamite to make bombs, canons, and rockets used in wars. Nobel wanted his inventions to help humans. Rather, dynamite earned money by using hurting humans and unfavorable buildings at some stage in war. Before he died, Nobel decided to go away all of the money that he earned from his inventions to make unique awards for essential inventions and actions. These awards are called the five Nobel Prizes. The one most heard of is the Nobel Peace Prize, which is given to folks that assist the arena through their true deeds. There may be additionally a Nobel Prize in Chemistry!

As we reflect on consideration on Nobel and his invention these days, we marvel if Nobel notion about ethics as he worked hard to clear up a problem. May want to he has guessed all the specific ways that others could use his work? Did he think that promoting of his invention for war changed into incorrect? Nobel invented gear for properly motives, but the use of innovations can take sudden turns. The tale of Nobel and dynamite is an example of what future scientists ought to think about whilst inventing new tools.

My thoughts behind the misuse: The experience gathered in these 22 years in the profession:

                    i.       The erring and cunning women who is trying to utilize the noble provisions of law to satisfy her ill – intention. But I cannot ignore the fact that a part of our vast population will always try to do so and they are present in everywhere. Phensedyl syrup works well in case you have cough but previously it was more used as a cheap item for intoxication rather as a medicine. As a check to this situation and to restrict the misuse, now following the rules, this particular medicine is sold only on production of valid prescription. Same in the case of Inspiral. It is a psychiatric medicine used in the treatment of attention deficit hyperactivity disorder (a behavioral disorder in children marked by poor concentration, hyperactivity, and learning difficulties). It helps to improve attention span, concentration and reduces impulsive behavior. But due to its misuse it is now sold on current dated prescription only.

So, to reign misuse of anything, we take various measures and there are systems of different checks. What about the misuse of the provision 498A IPC?

                   ii.       While a woman files a complaint to the police alleging manufactured or genuine complaint attracting the offense under section 498A IPC, it is the duty of the police to register the same as an FIR if the same discloses commission of any cognizable offence but registration of FIR does not create any mandate upon the police to arrest the alleged person, better to say in legal term “accused person”.

There is certain criterion to arrest a person which are mentioned in the Code of Criminal Procedure (Cr.P.C.) 1973;

Section 41 of Cr. P. C. states as follows:

 “(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person--

1[(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:

2[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 reasonably 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 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.

3[(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.]”

 So, it is not a mandate upon the police to arrest the accused person as soon as the complaint alleging offence punishable under section 498A IPC. On the other hand, there is a check list provided in the Act for arresting a person:

 ·        a reasonable suspicion exists that he has committed a cognizable offence

·        the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence

·        to prevent such person from committing any further offence

·        for proper investigation of the offence

·        to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner

·        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

·        as unless such person is arrested, his presence in the Court whenever required cannot be ensured

These are the few check points for arresting a person. So, as per the provisions of law, it is not a mandate to arrest the accused person as routine procedure and to produce him before the Court with a prayer for police custody for 14 days and after 14 days to pray for Judicial Custody. Though in practice the situation is the same as I stated above but that is not the law.

Now if I raise a question, when the acquittal rate in 498A IPC case is very very high, then I can assume (if not presume) that there is either latches on the part of the police in the investigation or the complaint is bogus and police could not establish the case and from FIR to arrest, from arrest to chargesheet and from chargesheet to trial, the entire process has been followed in a stereotype manner without any application of mind and ignoring the provisions of law.

So, attempt to misuse the provision with malafide could have been checked by the Police if they remained within the ambit of law and by following the true spirit of law but the police authority did not bother to take that pain rather they found out a way use the fake complaint with all interest for any reason which may not be within the scope and ambit of their duty.

                  iii.       Next, I cannot refrain myself to discuss the role of judiciary in this matter. The erring police can be reigned by the Judiciary if the Judiciary remains vigilant and does not become the automatic approving authority of the Police action.

 While an accused person is produced before the Magistrate, the Magistrate can peruse the Case Diary, the nature of allegation, the materials on record and others before taking any decision concerning the grant of bail of the accused. It is not a mandate of law upon the Magistrate to refuse bail to the accused person in case of the charge is under non-bailable section rather Magistrate has to apply his judicial mind before allowing or rejecting the bail.

When most of the cases are ended in acquittal or out of court settlement between the parties, then can I say that the initial refusal of bail and keeping the accused in custody for the purpose of investigation is for nothing but to put a confirmation signature upon the prayer of the police without any application of judicial mind!

Situation before and after the case of Arnesh Kumar vs State of Bihar & Anr

The draconian action over the FIR for the offence punishable under section 498A IPC suddenly changed and the requirement of arresting the unfortunate husband as soon as the FIR is lodged is vanished. How can that be possible??? Is it a magic or something else. After the judgement of the Hon’ble Supreme Court in Arnesh Kumar vs State of Bihar & Anr the requirement of arrest of the husband and keeping him in Police Custody and Jail Custody with the approval of the Magistrate has vanished. How can a requirement can be vanished overnight!

From the situation I presume that the arrest was a requirement but not for the benefit of investigation but for any other reasons.

For the benefit of the readers, I prefer to put forward the below report of NCB:

As per the reports of the National Crime Records Bureau (NCRB), out of 4,66,079 cases that were pending in the start of 2013, only 7,258 were convicted while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%. This provision has been always been in the news with allegations of false complaints and very low conviction rate. (“Crime in India 2013 statistics” Published by National Crime Records Bureau)

Observation of the Supreme Court on 498A IPC cases:

Ø In Kans Raj V. State of Punjab the Apex Court observed that for the fault of the husband, the in-laws or any other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than the husband are required to be proved beyond a reasonable doubt.

In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case. Thus, charge-sheet and criminal prosecution against the in-laws were quashed.

 Ø In Sushil Kumar Sharma V. Union of India the Apex Court observed that It was observed that there have been many instances where the complaints were 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.

 The Court opined that merely because the provision is constitutional and intra vires, it does not allow unscrupulous persons to wreck personal vendetta or unleash harassment. Till the time the legislature does not find a solution to the frivolous complaints, the courts have to take care of the situation within the existing framework.

 Ø In Neelu Chopra & Anr. V. Bharati the Apex Court observed that The Court observed that the complaint did not show as to which accused had committed what offence and what was the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations were made against him more precisely but he was no more and had already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, on the basis of vague and general complaint which was silent about the precise acts of the appellants. The Court thus directed to quash the complaint under Section 482 of CrPC.

 Ø In Manju Ram Kalita V. State of Assam the Apex Court observed that The court relying on several precedents observed that the meaning of “Cruelty” differs in each statutory provision and hence must be established in the context of Section 498A of IPC. The conduct of the man, the seriousness of his acts must be compared with the likeliness of the woman to commit suicide, etc. It must be established that the woman has been subjected to cruelty continuously or at least in close proximity of time of lodging the complaint. Petty quarrels would not come under the purview of “cruelty”. Accordingly, the Court set aside the conviction order under Section 498A of IPC.

 Ø In Preeti Gupta & Anr. V. State of Jharkhand the Apex Court observed that The Court observed that the tendency of implicating husband and all his immediate relations is not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. Hence, the courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases.

 In the present case, the allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Therefore, in the interest of justice, the court directed to quash all the charges filed against the appellants as the same could not be proved.

 Ø In Bhaskar Lal Sharma & Anr. V. Monica the Apex Court observed that all the essential elements required for an offence under Section 498A of the IPC were not fulfilled in the present case. The respondent took all coercive steps to ensure the presence of appellants in India without making any effort at conciliation. The court was of the view that merely because the mother-in-law kicked the daughter-in-law and threatened her with divorce, the same did not amount to cruelty under Section 498A of IPC. Thus, no case was made out against the appellants under Section 498A of IPC. 

Ø In Arnesh Kumar V. State of Bihar the Apex Court observed that since Section 498A is a cognizable and non-bailable offence, women often use it as a weapon rather than a shield to harass her husband and his relatives. Sometimes, even the bedridden grandparents of the husband, their relatives living abroad are brought under this provision on false allegations. The Court laid down certain guidelines stating that arrest under this section must be made after reaching reasonable satisfaction and after conducting a proper investigation as to the genuineness of allegation. The Magistrate shall not order detention casually and mechanically. The Court, therefore, granted provisional bail to the accused.

 This judgement is also a landmark for various reasons and after this passing of this judgement the requirement of arrest of the accused person was vanished though the section remained non-bailable one.

 Ø In Bibi Parwana Khatoon @ Parwana Khatoon V. State of Bihar the Apex Court observed that after going through the oral and documentary evidences observed that the lower courts have erred in giving the conviction orders. The evidences on the brother-in-law and sister-in-law torturing the deceased could not be proved beyond reasonable doubts. Further, the appellants used to reside in a different village and they had no common intention with the husband for committing the crime. Accordingly, the conviction orders were set aside.

 Ø In Rajesh Sharma & Others V. State of U.P. the Apex Court gave the following directions:

  Family Welfare Committee:

·        The District Legal Services Authorities must constitute at least one committee in every district comprising of three para legal/volunteers/social workers/other citizen who are willing to work.

·        Such constitution and working will be reviewed at least once in a year by the District and Sessions Judge of the district who is also the Chairman of District Legal Services Authority.

·        No committee member can be called as witness.

·        Any complaint received from the police/the Magistrate under Section 498A of IPC must be referred to and looked into by the committee.

·        The committee’s report will be given to the Authority by whom the complaint is referred within one month from the date of receiving the complaint. No arrest can be made before that.

Investigating Officer: The Investigating Officer for complaints under Section 498A should undergo a training of four months for such duration (not less than one week) as may be considered appropriate.

Bail: When a bail application is filed to the Public Prosecutor/complainant with a day’s notice then it must be decided on the same day. Recovery of disputed dowry items cannot be regarded as a ground of bail if maintenance or other rights of wife/minor children can be protected.

NRIs: Impounding of passports or issuing Red Corner Notice must not be a routine for NRIs.

Video Conferencing: Personal appearance of all family members and particularly outstation members may not be required and the trial court can grant exemption and permit video conferencing.

The Court observed that large number of cases under Section 498A on trivial and false issues is a matter of serious concern. Apart from directing the investigating officers and trial courts, involving the civil society in administration of justice can be one of the steps to remedy this situation.

Ø In Social Action Forum for Manav Adhikar & Another V. Union Of India Ministry Of Law And Justice & Ors. the The three judge bench referred to the principles laid down in the cases of Joginder Kumar v. State of U.P, D.K. Basu v. State of W.B[xv], Lalita Kumari v. Government of U.P. and Arnesh Kumar v. State of Bihar[xvii] and directed the investigating officers to be careful and be guided by the same.

The Court held that the directions with respect to Family Welfare Committees and their duties are not in accordance with the provision of Code of Criminal Procedure, 1973. The offence of cruelty is a non-bailable and cognizable offence but due to the direction making it impossible to arrest before the report of such committee has made this ineffective. Thus the direction given in Rajesh Sharma case has been modified by the court.

·        The direction with respect to the constitution and duties of Family Welfare Committee has been declared impermissible.

·        The directions pertaining to the 498A settlement has been modified to include that if a settlement is arrived at, the parties can approach the High Court under Section 482 of CrPC. The High Court, keeping in view the law laid down in the case of Gian Singh v. State of Punjab, shall dispose of the same.

Bail is the rule, Jail is the exception

Deprivation of liberty and the violation of the right to liberty of an individual, unless there is a good reason to deprive him of his liberty and continue his detention in the pretrial stage, is considered a punishment and is contrary to the principle of natural justice. To apply the principles of, we need to balance two theories: deterrence and punishment. Moreover, as human rights activism increases, the balance between individual liberty and the interests of society becomes a major concern. Detention of the accused therefore violates a fundamental right to liberty, unless there are justifiable reasons, such as the possibility of the accused escaping trial or fear of falsifying evidence or persuading witnesses to do so. and is highly inappropriate. Therefore, courts will prevent a person from being arrested unless the interests of justice would be prejudiced if not arrested. 

More than two-thirds of inmates in prisons constitute undertrial prisoners and that majority of such prisoners may not even be required to be arrested despite registration of a cognizable offence punishable with seven years or less. It further reiterates the rule that bail is the rule and jail is the exception and that arrest is a draconian measure resulting in curtailment of liberty. Consequently, the Supreme Court has directed the Courts to decide on bail applications within a time bound manner.

In this situation, even erroneous and routine type arrests made by the police the Court is there to decide finally whether the accused person brought before it by the police is at all required to be sent to custody or not.

Refusal of bail in a stereotype manner is treated as pre-trial punishment.

So in the misuse of the provisions of the 498A IPC, the judiciary cannot wash its hand and put all the blames to the police and the citizen. An audit of judicial actions is required in these types of matters where the citizen is louder against its misuse. Identification of every component behind the misuse is required otherwise citizen will continue to loose faith on judiciary.  

Conclusion:

The torture upon the women in the matrimonial home for different purposes has not been eradicated from India. But the unfortunate part is due to ill motive, ignorance of law, misuse and/or non-use of power by the complainant other authorities who remained blind and reluctant to put a check on the misuse by the proper use of their authority and provisions of law.

Law remained in the bookshelf and everyone amened it as he or she requires to satisfy his or her ill motive.

Only a Law cannot change the society or eradicate the evil from the society. A burning example of it is the case of Roop Kanwar in Rajasthan who was forced to become a sati in the year 1987 while the Act prohibiting Sati was passed in the year 1829 for the first time in Bengal (the then undivided Bengal) by Bengal Sati Regulation, 1829.

I am not blaming the provision of 498A IPC and strongly opine that it is required in today’s India also but the misuse should be checked in strict manner by the authorities who are authorized for it. The authorities cannot wash their hands by blaming the women for the misuse while they remained blind to their respective duties and allowed the misuse.