Friday, September 14, 2018

Supreme Court Issues New Guidelines To Prevent Misuse Of S.498A IPC

SC Modifies The Earlier Directions Issued To Prevent Misuse Of 498A IPC, Says No To ‘Welfare Committees’ 

Supreme Court of India has modified its directions issued in  Rajesh Sharma case for preventing misuse of Section 498A of Indian Penal Code.
A three judges’ bench led by CJI has withdrawn the earlier direction issued by a two judges bench that complaints under Section 498A IPC should be scrutinised by Family Welfare Committees before further legal action by police.
Though the bench acknowledged that there was a misuse of the provision leading to social unrest, it said that Court cannot fill in legislative gaps.
The Court observed that there were inbuilt mechanisms in criminal procedure to check misuse of provisions.
“We have protected pre-arrest or anticipatory bail provision in dowry harassment cases,there is no scope for courts for constitutionally filling up gap in penal law”.
The Bench was delivering the Judgment in petitions seeking reconsideration of the directions to check abuse of Section 498A of the IPC laid down in the 2017 apex court judgment in Rajesh Sharma v. UOI.
The Bench of Supreme Court bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar reserved the Judgment on April 23.
Directions in Rajesh Sharma’s Case
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. 16
(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.
Remarking that the directions govern the procedural aspects of the registration of a complaint by the police or the Magistrate under Section 498A, the Chief Justice envisaged a reading of the Statement of Objects and Reasons of the Criminal Law (Second Amendment) Act of 1983 inserting the said provision in the IPC, a consideration of earlier views of the various High Courts and of the Supreme Court, and a deliberation on whether a Family Welfare committee as directed by the bench of Justice Adarsh Kumar Goel and Justice UU Lalit in Rajesh Sharmashould be constituted to look into any complaint before arrest is effected.
Senior counsel Indu Malhotra, having been appointed amicus curiae in a related petition by NGO Nyayadhar, submitted, “The judgment (in Rajesh Sharma) has been in operation since July, 2017 and no complaints under Section 498A has been registered since then”.
It may be noted that hearing the petition on behalf of the said NGO, Chief Justice Misra had, on October 13, 2017, in context of the Rajesh Sharma judgments, remarked, “We are not in agreement with the judgment passed in the case. We can’t write the law. We can only interpret the law”.
Senior counsel Indira Jaising drew the attention of the bench to an order of Justice Goel and Justice Rohinton Nariman delivered on Thursday requiring the placing of the Rajesh Sharma judgment before the Chief Justice for reconsideration. She submitted that on account of the Supreme Court website having been hacked, it has not been possible to access the order. When the Chief Justice remarked that the same was an administrative order, Jaising advanced that it was a judicial order.
It was also contended on Friday that the 2017 judgment has necessitated prima facie truth of the allegations to be made out before arrest or other coercive action is effected and consequently, women are being harassed.

Full Judgment

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