GOVERNMENT OF INDIA LAW COMMISSION OF INDIA Section 498A IPC Report No.243 AUGUST 2012 ii Section 498A IPC INDEX Sl. No. Title Page Nos 1. Introduction 1-3 2. Judicial decisions 3-8 3. Some data regarding Prosecutions u/s 498-A 9-10 4. Arguments: Pro & Contra 10-11 5. The Triple Problem 12-13 6. View of National Commission for Women 13 7. The Approach and views of the Commission broadly 14-16 8. Compounding the Offence 16-19 9. Domestic Violence Act 19-21 10. Responses - an overview 21-23 11. Diagnosis of the problem and reasonable solution 23-25 12. Power of Arrest - a balanced approach 25-27 13. Analysis of the provisions relating to arrest and the duty of 27-33 police 14. Certain guidelines / prescriptions to mitigate misuse 33-35 15. Home Ministry's advisory and further action to be taken 35-37 16. Amendment of Section 41 Cr.PC by the addition of sub- 37 section (3) 17. S, 358 of Cr.PC - raising the compensation limit 37-38 17-A Punishment for misuse - no specific provision necessary. 38 18. State's obligation to take care of estranged women in 38-40 distress 19. Summary of Recommendations 40-43 Annexure - I 44-50 Annexure - II 51-57 Annexure - III 58-73 Annexure - III-A 74 Annexure - III-B 75-81 Annexure - III-C 82-85 iii Section 498A IPC 1. Introduction 1.1 Keeping in view the representations received from various quarters and observations made by the Supreme Court and the High Courts, the Home Secretary, Government of India through his D.O. letter dated 1st September, 2009 requested the Law Commission of India to consider suggesting amendment, if any to s.498A of Indian Penal Code or other measures to check the alleged misuse of the said provision. Thereafter, in the case of Preeti Gupta vs. State of Jharkhand, (2010) the Supreme Court observed that "serious re- look of the entire provision is warranted by the Legislature. It is a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over-implication is also reflected in a very large number of cases". Copy of the Judgment has been directed to be sent to the Law Commission and Union Law Secretary for taking appropriate steps. The Law Commission of India after intense deliberations released a Consultation Paper-cum-Questionnaire which is attached to this report as Annexure-I. 1.2 S.498A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been prescribed. The expression 'cruelty' has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any 1 property or valuable security. Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of 'cruelty'. The offence under s.498A is cognizable, non-compoundable and non-bailable. The section is extracted below: 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 punishable 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 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." 1.3 Several enactments and provisions have been brought on the statute book during the last two or three decades to address the concerns of liberty, dignity and equal respect for women founded on the community perception that women suffer violence or deprived of their constitutional rights owing to several social and cultural factors. Meaningful debates and persuasions have led to these enactments. The insertion of Section 498A IPC is one such move and it penalizes offensive conduct of the husband and his relatives towards the married woman. The provision together with allied provisions in Cr. P.C. are so designed as to impart an element of deterrence. In course of time, a spate of 2 reports of misuse of the section by means of false / exaggerated allegations and implication of several relatives of the husband have been pouring in. Though there are widespread complaints and even the judiciary has taken cognizance of large scale misuse, there is no reliable data based on empirical study as regards the extent of the alleged misuse. There are different versions about it and the percentage of misuse given by them is based on their experience or ipse dixit, rather than ground level study. 2. Judicial decisions 2.1 In the case of Preeti Gupta Vs. State of Jharkhand1 (supra) decided in 2010, the Supreme Court observed that a serious relook of the provision is warranted by the Legislature. The Court said: "It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints". The Court took note of the common tendency to implicate husband and all his immediate relations. The Supreme Court directed the Registry to send a copy of judgment to the Law Commission and Union Law Secretary so that appropriate steps may be taken in the larger interests of society. In an earlier case also - Sushil Kumar Sharma Vs. UOI2 (2005), the Supreme Court lamented that in many instances, complaints under s.498A were being filed with an oblique motive to wreck personal vendetta and observed. "It may therefore become necessary for the Legislature to find out ways how the makers of frivolous complaints or allegations can be 1 AIR 2010 SC 3363 2 2005 6 SCC 281 3 appropriately dealt with". It was also observed that "by misuse of the provision, a new legal terrorism can be unleashed". 2.2 Various High Courts in the country have also noted that in several instances, omnibus allegations are made against the husband and his relations and the complaints are filed without proper justification. The need to exercise caution in the case of arrest of the husband and his relatives has been stressed while observing that by such a step, the possibility of reconciliation becomes remote and problematic. In some of the cases, directions were given by the High Courts for regulating the power of arrest and for taking necessary steps to initiate conciliatory effort at the earliest point of time. Reference may be made in this context to the decision of Delhi High Court in Chandrabhan Vs. State (order dated 4.8.2008 in Bail application No.1627/2008) and of the Madras High Court in the case of Tr. Ramaiah Vs. State (order dated 7.7.2008 and 4.8.2008 in MP No.1 of 2008 in Crl. O.P. No.10896 of 2008). In the former case, it was observed that "there is no iota of doubt that most of the complaints are filed in the heat of the moment over trifling fights and ego clashes. It is also a matter of common knowledge that in their tussle and ongoing hostility, the hapless children are the worst victims". The following directions were given to the police authorities: i) "FIR should not be registered in a routine manner. ii) Endeavour of the police should be to scrutinize complaints carefully and then register FIR. iii) No case under section 498-A/406 IPC should be registered without the prior approval of DCP/Addl. DCP. iv) Before the registration of FIR, all possible efforts should be made for reconciliation and in case it is found that there is no possibility of 4 settlement, then, necessary steps should, in the first instance, be taken to ensure return of sthridhan and dowry articles to the complainant. v) Arrest of main accused be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP. vi) In the case of collateral accused such as in-laws, prior approval of DCP should be there on the file." The other directions given were :- The Delhi Legal Services Authority, National Commission for Women, NGOs and social workers working for upliftment of women should set up a desk in Crime Against Women Cell to provide them with conciliation services, so that before the State machinery is set in motion, the matter is amicably settled at that very stage. The need to explore the possibility of reunion and conciliation when the case reaches the Court was also stressed. In conclusion, it was observed that in these matters, the parties themselves can adopt a conciliatory approach without intervention of any outside agency. 2.3 In an earlier judgment of Delhi High Court in the case of "Court on its own in Motion vs. CBI", reported in 109 (2003) Delhi Law Times 494, similar directions were issued to the police and courts regarding arrest, grant of bail, conciliation etc. It appears that these procedural directions issued by the High Court are being followed in Delhi as stated by senior police officers of Delhi, though according to the version of some lawyers, there are many instances of violation at the police station level. It is to be mentioned that after the order in Chander Bhan's case, (supra), the Commissioner of Police of Delhi issued 5 Standing Order No.330 of 2008 compiling the "Guidelines for Arrest" as laid down by the Supreme Court and Delhi High Court. The judgments relevant to Section 498-A and the directions issued therein were referred to in the Standing Order. It is learnt that the practice of obtaining the permission of ACP/DCP level officers before effecting arrest of husband/relatives is being followed in Delhi. In many States, according to information received by the Chairman of this Commission, there are no systemic guidelines and there is no regular monitoring of this type of cases by the higher officials. Ad-hoc practices and procedures are in vogue. 2.4 The directives given by the Madras High Court in the case of Tr. Ramiah are as follows: i) Except in cases of dowry death/suicide and offences of serious nature, the Station House Officers of the All Women Police Stations are to register F.I.R. only on approval of the Dowry Prohibition Officer concerned. ii) Social workers/mediators with experience may be nominated and housed in the same premises of All Women Police Stations along with Dowry Prohibition Officers. iii) Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations. iv) If arrest is necessary during investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding the reasons recorded in writing. v) Arrest can be made after filing of the final report before the Magistrate concerned if there is non-cooperation and abscondance of accused persons, and after receipt of appropriate order (Non-Bailable Warrant). vi) Charge sheet must be filed within a period of 30 days from the date of registration of the F.I.R. and in case of failure, extension of time shall be sought for from the jurisdiction Magistrate indicating the reasons for the failure. vii) No weapon including lathis/physical force be used while handling cases at the All Women Police Stations. 6 viii) Complainants/victims should be provided with adequate security/accommodation at Government Home and interest of the children must be taken care of. ix) Stridana properties/movables and immovable to be restored at the earliest to the victims/complainants and legal aid may be arranged for them through Legal Services Authority for immediate redressal of their grievances." 2.5 Pursuant to this order, the Director-General of Police, Tamil Nadu, issued a circular to the effect that the said orders of the Court should be strictly followed. In the further order dated 4.8.2008, the Court observed that when the I.O. seeks remand of the accused, the Magistrate must examine the necessity therefor and the remand should not be ordered mechanically on the mere request of the I.O. The Magistrate should be satisfied that sufficient grounds exist for directing remand. Further, the Court deprecated the practice of conducting lengthy panchayats in police stations. 2.6 As regards the decisions of Delhi and Madras High Courts referred to above, there are a few comments which we consider appropriate to make. The decisions make the offence practically bailable by reason of various qualifications and restrictions prescribed. The decision of Madras High court goes to the extent of saying that arrest can be made only after filing of the final report before the Magistrate and on the basis of non-bailable warrant issued by the Magistrate. Whether this judicial law-making based on experience and expediency of restraining the power of arrest in matters arising out of matrimonial problems, is legally sound is one question that arises. Secondly, whether the registration of FIR can be deferred for sometime i.e., till initial investigation and reconciliation process is completed, is another point that 7 arises. In Bhajan Lal's case3, the Supreme Court observed, "It is therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information." 2.7 However, in a recent case of Lalita Kumari v. State of Uttar Pradesh 4, the question whether a police officer is bound to register the FIR when a cognizable offence is made out or he has the discretion to conduct some kind of preliminary inquiry before registration of FIR, has been referred to a larger bench of Supreme Court in view of the apparent divergence in views. The law on this point is therefore in an uncertain state. In this situation, the police in various States have to follow the law laid down or directives issued by the respective High Courts in regard to registration of FIR till the law is settled by the Supreme Court. Shri Amarjit Singh, ld. Member of the Commission has suggested that except in cases of physical violence, the FIR need not be registered instantaneously without any enquiry being made. Whether there should be a legislative provision in this regard specifically with reference to F.I.Rs under S, 498-A is a matter on which a fresh look could be taken after the Supreme Court interprets the relevant Sections in the above case. 3 State of Haryana v. Bhajan Lal, AIR 1992 SC 604 4 AIR 2012 SC 1515 8 3. Some data regarding Prosecutions u/s 498-A 3.1 The complaint of over-implication noticed by the Courts is borne out by the statistical data of the cases under S,498A. According to informations received from the Hon'ble High Courts (during the year 2011), 3,40,555 cases under Section 498-A IPC were pending trial in various courts towards the end of 2010. There were as many as 9,38,809 accused implicated in these cases. This does not include cases pertaining to Punjab and Haryana (statistics not available). The implication of the relatives of husband was found to be unjustified in a large number of decided cases. While so, it appears that the women especially from the poor strata of the society living in rural areas rarely take resort to the provision, though they are the worst sufferers. However, according to Delhi Police officials, with whom the Commission had interacted, women from poor background living in slums are also coming forward to file complaints. 3.2 According to the statistics published by National Crime Records Bureau for the year 2011 (Table4), 3,39,902 cases under S,498A were pending trial in various courts at the end of the year and 29,669 cases under S,304-B of IPC. The conviction rate in S,498A cases is 21.2% and in S,304-B cases, it is 35.8%. Number of cases reported under S,498A in the year 2011 are 99,135 and during the two previous years, they were 94,041 and 89,546. Thus, there is slight increase (about 5%) in the reported cases every year. As stated earlier, many cases go unreported. The statistics relating to reported incidents may not therefore furnish a reliable comparative indicator of the actual incidence of 9 crimes in the States. For instance, when compared to other cities, the percentage share of incidents reported under S, 498-A is the 2nd highest in Delhi. It may be because that the percentage of reporting is apparently high. The dowry-death cases (S,304-B) reported during the years 2009-11 are: 8,383, 8,391 and 8,618. There is a view-point that if the offence under S,498A is made bailable or non-cognizable, it will cease to be a deterrent against cruelty inflicted on married women and the dowry-deaths may increase. 3.3 As noticed earlier, the conviction rate in respect of the cases under s.498A is quite low - it is about 20%. It is learnt that on account of subsequent events such as out-of-court settlement, the complainant women do not evince interest in taking the prosecution to its logical conclusion. Further, ineffective investigation is also known to be one of the reasons for low conviction rate. 4. Arguments: Pro & Contra 4.1 The arguments for relieving the rigour of s.498A by suitable amendments (which find support from the observations in Court judgments and Justice Malimath Committee's report on Reforms of Criminal Justice System) are: The harsh law, far from helping the genuine victimized women, has become a source o blackmail and harassment of husbands and others. Once a complaint (FIR) is lodged with the Police under s.498A/406 IPC, it becomes an easy tool in the hands of the Police to arrest or threaten to arrest the husband and other relatives named in the FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation. When the members of a family are arrested and sent to jail, with no immediate prospect of bail, the chances of amicable re-conciliation or salvaging the marriage, will be lost once and for all. The possibility of reconciliation, it is pointed out, cannot be ruled out and it should be fully explored. The imminent arrest by the Police will thus be counter- productive. The long and protracted criminal trials lead to acrimony and 10 bitterness in the relationship among the kith and kin of the family. Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated by over- zealous/callous actions on the part of the Police by taking advantage of the harsh provisions of s.498A of IPC together with its related provisions in CrPC. It is pointed out that the sting is not in s.498A as such, but in the provisions of CrPC making the offence non-compoundable and non- bailable. 4.2 The arguments, on the other hand, in support of maintaining the status quo are briefly: S.498A and other legislations like Protection of Women from Domestic Violence Act have been specifically enacted to protect a vulnerable section of the society who have been the victims of cruelty and harassment. The social purpose behind it will be lost if the rigour of the provision is diluted. The abuse or misuse of law is not peculiar to this provision. The misuse can however be curtailed within the existing framework of law. For instance, the Ministry of Home Affairs can issue 'advisories' to State Governments to avoid unnecessary arrests and to strictly observe the procedures laid down in the law governing arrests. The power to arrest should only be exercised after a reasonable satisfaction is reached as to the bona fides of a complaint and the complicity of those against whom accusations are made. The "Crime Against Women Cells" should be headed by well trained and senior lady police officers. These steps would go a long way in preventing the so-called misuse. Side by side, steps can be taken to effect conciliation between the spouses in conflict and the recourse to filing of a charge-sheet under s.498A shall be had only in cases where such efforts fail and there appears to be a prima facie case. 11 Counselling of parties should be done by professionally qualified counsellors and not by the Police. These views have been echoed among others by the Ministry of Women and Child Development. 4.3 Further, it is pointed out that a married woman ventures to go to the Police station to make a complaint against her husband and other close relations only out of despair and being left with no other remedy against cruelty and harassment. In such a situation, the existing law should be allowed to take its own course rather than over-reacting to the misuse in some cases. There is also a view expressed that when once the offending family members get the scent of the complaint, there may be further torture of the complainant and her life and liberty may be endangered if the Police do not act swiftly and sternly. It is contended that in the wake of ever increasing crimes leading to unnatural deaths of women in marital homes, any dilution of Section 498-A is not warranted. Secondly, during the process of mediation also, she is vulnerable to threats and harassment. Such situations too need to be taken care of. 5. Thus, the triple problems that have cropped up in the course of implementation of the provision are:(a) the police straightaway rushing to arrest the husband and even his other family members (named in the FIR), (b) tendency to implicate, with little or no justification the in-laws and other relations residing in the marital home and even outside the home, overtaken by feelings of emotion and vengeance or on account of wrong advice, and (c) lack 12 of professional, sensitive and empathetic approach on the part of the police to the problems of woman under distress. 6. View of National Commission for Women 6.1 The view point of National Commission for Women represented by Member-Secretary placed before the Parliamentary Committee on Petitions (Rajya Sabha) (report presented on 07.09.2011) has been summarized in the report of the Committee as follows: (i) Section 498A, IPC, provisions of the Dowry Prohibition Act 1961 and the Protection of Women from Domestic Violence Act 2005 have an element of commonality and need to be harmonized and uniformly implemented; (ii) Police should in the interest of the protection of the constitutional rights of a citizen ensure that no arrest should be made without a reasonable satisfaction after some investigation as to the genuineness and bonafide of a complaint and the need to effect arrest; (iii) Creation of Mahila Desks at police station and Crime Against Women (CAW) Cell, at least at the district level which would specifically deal the complaints made by women. When a wife moves to file a complaint to a women cell, a lot of persuasion and conciliation is required. The Legal Service Authorities of the States / UTs, National Commission for Women, NGO and social workers should set up a desk in CAW Cell to provide conciliation services to the women so that before the state machinery is set in motion the matter is amicably settled at that every stage; (iv) In case of matrimonial disputes, the first recourse should be effective conciliation and mediation between the warring spouses and their families and recourse of filing charges under Section 498A, IPC may be resorted to in cases where such conciliation fails and there appears a prima facie case of Section 498A of IPC and other related laws; and (v) Counseling mechanism envisaged under the PWDVA should be implemented by State Governments and counseling of parties should be done only by professionally qualified counselors and not by the police. The police may consider empanelling professional counselors with CAW Cells. 13 7. The Approach and views of the Commission broadly 7.1 The Commission is of the view that the Section together with its allied Cr.PC provisions shall not act as an instrument of oppression and counter- harassment and become a tool of indiscreet and arbitrary actions on the part of the Police. The fact that s.498A deals with a family problem and a situation of marital discord unlike the other crimes against society at large, cannot be forgotten. It does not however mean that the Police should not appreciate the grievance of the complainant woman with empathy and understanding or that the Police should play a passive role. S.498A has a lofty social purpose and it should remain on the Statute book to intervene whenever the occasion arises. Its object and purpose cannot be stultified by overemphasizing its potentiality for abuse or misuse. Misuse by itself cannot be a ground to repeal it or to take away its teeth wholesale. The re-evaluation of Section 498-A merely on the ground of abuse is not warranted. Besides that, while courts are confronted with abusive dimensions, sometimes very visibly in Section 498A prosecutions, we cannot close our eyes to a large number of cases which go unprosecuted for a variety of reasons. 7.2 Section 498-A has to be seen in the context of violence and impairment of women's liberty and dignity within the matrimonial fold. Mindless and senseless deprivation of life and liberty of women could not have been dealt with effectively through soft sanctions alone. Even though values of equality and non-discrimination may have to gain deeper roots through other social 14 measures, the need to give valuable protection to vulnerable sections of women cannot be negated. 7.3 While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s.498A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase. A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution - legislative or otherwise, while maintaining the efficacy of law. While we acknowledge diverse points of view, some with extreme emphasis and connotations, the point to be noted is that the value to be attached to the rights of women are no less than the value to be attached to the family as a unit and vice-versa. The challenge before the community is to ensure the promotion of both values. The emphasis should therefore be on wise moderations without overlooking the need and relevance of the retention of penal sanctions necessary to protect and promote women's rights and interests. 7.4 There is also a need to create awareness of the provisions especially among the poor and illiterate living in rural areas who face quite often the problems of drunken misbehavior and harassment of wives. More than the women, the men should be apprised of the penal and other provisions of law protecting the women against harassment at home. The easy access of aggrieved women to the Taluka and District level Legal Service Authorities 15 and/or credible NGOs with professional counsellors should be ensured by appropriate measures. There should be an extensive and well-planned campaign to spread awareness on right lines. Presently, the endeavour in this direction is quite minimal. Visits to few villages once in a way by the representatives of LSAs, law students and social workers is the present scenario. 7.5 There is an all-round view that the lawyers whom the aggrieved women or their relations approach in the first instance should act with a clear sense of responsibility and objectivity and give suitable advice consistent with the real problem diagnosed. Exaggerated and tutored versions and unnecessary implication of husband's relations should be scrupulously avoided. The correct advice of legal professionals and the sensitivity of Police officials dealing with the cases are very important, and if these are in place, undoubtedly, the law will not take a devious course. Unfortunately, there is a strong feeling that some lawyers and police personnel have failed to act and approach the problem in a manner ethically and legally expected of them. 8. Compounding the Offence 8.1 There is preponderance of opinion in favour of making the offence under S,498-A compoundable with the permission of the court. Even those (individuals, officials and organizations) who say that it should remain a non- bailable offence, have suggested that the offence should be made compoundable, subject to the permission of court. Some States, for e.g., 16 Andhra Pradesh have already made it compoundable. The Supreme Court, in the case of Ramgopal v. State of M. P. in SLP (Crl.) No. 6494 of 2010 (Order dt. July 30, 2010), observed that the offence under S, 498-A should be made compoundable. However, there is sharp divergence of views on the point whether it should be made a bailable offence. It is pleaded by some that the offence should be made bailable at least with regard to husband's relations and in respect of the cases failing under second part of the Explanation Clause (b) to Section 498-A. 8.2 As regards compoundability, the Commission has given a comprehensive report (237th Report) under the title of "Compounding of IPC Offences". The Commission recommended that the offence under Section 498A should be made a compoundable offence with the permission of Court. The Commission has suggested the inclusion of the following sub-section in S,320 Cr.PC: After the application for compounding an offence under S.498A of Indian Penal Code is filed and on interviewing the aggrieved woman, preferably in the Chamber in the presence of a lady judicial officer or a representative of District Legal Services Authority or a counsellor or a close relation, if the Magistrate is satisfied that there was prima facie a voluntary and genuine settlement between the parties, the Magistrate shall make a record to that effect and the hearing of application shall be adjourned by three months or such other earlier date which the Magistrate may fix in the interests of Justice. On the adjourned date, the Magistrate shall again interview the victim woman in the like manner and then pass the final order permitting or refusing to compound the offence after giving opportunity of hearing to the accused. In the interregnum, it shall be open to the aggrieved woman to file an application revoking her earlier offer to compound the offence on sufficient grounds. The relevant part of Commission's report is furnished in Annexure-II. 17 8.4 In the 154th Report of the Law Commission also, there was a clear recommendation to make the offence compoundable. Justice Mallimath Committee on Criminal Justice Reform also recommended that it should be made compoundable as well as bailable. The Committee of Petitions (Rajya Sabha) in the report presented on 7.09.2011, observed thus at para 13.2 under the heading "Making the offence under Section 498A IPC compoundable": "The Committee notes that the offence under Section 498A IPC is essentially a fallout of strained matrimonial relationship for which there might be various considerations. Since there can be various causes leading to an offence under Section 498A, IPC and parties to the marriage could be responsible for the same in varying degrees, it would be appropriate if the remedy of compromise is kept open to settle a matrimonial dispute. In this context, the Committee feels that in case of any marital discord which has reached the stage of a complaint under Section 498A, IPC, it would be better if the parties have the option of a compromise whereafter they can settle down in their lives appropriately for a better future rather than diverting their energies negatively by pursuing litigation. The Committee recommends to the Government to consider whether the offence under Section 498A, IPC can be made compoundable." 8.5 These observations and recommendations of the Parliamentary Committee reinforces the view taken by the Law Commission in 237th Report which is annexed herewith (Annexure II). In the 111th report of the Department related Standing Committee on Home Affairs on the Criminal Law Amendment Bill, 2003 (report of 2005), the Committee categorically recommended that the offence under Section 498-A should be made compoundable. The Committee of Petitions (Rajya Sabha), recommended that the offence under Section 498A should continue to be cognizable and non- bailable while "strongly recommending" that "the ill-effects and miseries of the provision should be checked." The Committee observed further: "the Committee 18 fears that failure to do so may leave no option except to dilute the law by making the same non-compoundable and bailable." Certain measures to check misuse were suggested which will be referred to at the appropriate juncture. 9. Domestic Violence Act 9.1 In the context of the issue under consideration, a reference to the provisions of Protection of Women from Domestic Violence Act, 2005 (for short PDV Act) which is an allied and complementary law, is quite apposite. The said Act was enacted with a view to provide for more effective protection of rights of women who are victims of violence of any kind occurring within the family. Those rights are essentially of civil nature with a mix of penal provisions. Section 3 of the Act defines domestic violence in very wide terms. It encompasses the situations set out in the definition of 'cruelty' under Section 498A. The Act has devised an elaborate machinery to safeguard the interests of women subjected to domestic violence. The Act enjoins the appointment of Protection Officers who will be under the control and supervision of a Judicial Magistrate of First Class. The said officer shall send a domestic incident report to the Magistrate, the police station and service providers. The Protection Officers are required to effectively assist and guide the complainant victim and provide shelter, medical facilities, legal aid etc. and also act on her behalf to present an application to the Magistrate for one or more reliefs under the Act. The Magistrate is required to hear the application ordinarily within 3 days from the date of its receipt. The Magistrate may at any stage of the proceedings direct the respondent and/or the aggrieved person to undergo counseling with 19 a service provider. 'Service Providers' are those who conform to the requirements of Section 10 of the Act. The Magistrate can also secure the services of a welfare expert preferably a woman for the purpose of assisting him. Under Section 18, the Magistrate, after giving an opportunity of hearing to the Respondent and on being prima facie satisfied that domestic violence has taken place or is likely to take place, is empowered to pass a protection order prohibiting the Respondent from committing any act of domestic violence and/or aiding or abetting all acts of domestic violence. There are other powers vested in the Magistrate including granting residence orders and monetary reliefs. Section 23 further empowers the Magistrate to pass such interim order as he deems just and proper including an ex-parte order. The breach of protection order by the respondent is regarded as an offence which is cognizable and non-bailable and punishable with imprisonment extending to one year (vide Section 31). By the same Section, the Magistrate is also empowered to frame charges under Section 498A of IPC and/or Dowry Prohibition Act. A Protection Officer who fails or neglects to discharge his duty as per the protection order is liable to be punished with imprisonment (vide Section 33). The provisions of the Act are supplemental to the provisions of any other law in force. The right to file a complaint under Section 498A is specifically preserved under Section 5 of the Act. 9.2 An interplay of the provisions of this Act and the proceedings under s.498A assumes some relevance on two aspects: (1) Seeking Magistrate's expeditious intervention by way of passing a protective interim order to prevent 20 secondary victimization of a complainant who has lodged FIR under s.498A. (2) Paving the way for counseling process under the supervision of Magistrate at the earliest opportunity. 10. Responses - an overview 10.1 As many as 474 persons, organizations/institutions and officials (listed in Annexure-III) have sent their responses to the Consultation Paper-cum- Questionnaire. A broad analysis of these replies are given in Annexure III-A. Some of the important and typical responses are compiled in Annexure III-B. As many as 244 Judicial Officers from various States including Registrars and Directors of Judicial Academies and Officials (most of them are Police Officers) and members of legal academia have sent their responses. 100 of them suggested that the offence should be made bailable. However, 119 of them have clearly stated that it should remain non-bailable. Among the 24 organizations/institutions, 12 of them pleaded for bailability and 5 have expressed the view that it should remain non-bailable. Among the individuals, a vast majority of them suggested that it should be made bailable. Some have expressed an extreme view that the Section should be repealed or it should be made gender neutral. There are three Non-Resident Indians among the representationists - two of them individuals and the other an organization. They consider it as a harsh law against husbands and it shall be revisited. The tales of woes and harassment caused on account of false complaints have been narrated in many representations while pleading that the complainant woman should be made accountable for such false and frivolous complaints. 21 Some State Governments and Union Territories also gave their suggestions. Their views are compiled in Annexure III-C. Most of the respondents including those who are not in favour of change emphasized the need for verification of facts by way of preliminary/initial investigation and not to rush through the process of arrest. The need to facilitate reconciliation through counseling and mediation at the earliest stage has been stressed by a large number of respondents. The active participation of Legal Service Authorities as a facilitator of conciliation and mediation processes and the need for closer coordination between the police and LSAs in this regard has also been pointed out by many of them. It is also stated that LSAs can play a greater role in spreading awareness in the rural areas. 10.2 The Chairman of the Commission in the company of Vice-Chairman and other ld. Members and officials of the Commission had occasions to interact with Judicial Officers of various ranks (including lady judges). In such Conferences, the general consensus was that the offence under Section 498-A should be made compoundable with the permission of the Court and it should continue to remain non-bailable. At the same time, they expressed some concern over complaints filed with false allegations or over implication and stressed on the duty of Police to act with sensitivity and responsibility in matters of this nature. So also, the plight of the aggrieved women who go to the Police Stations and who in a state of emotion and confusion tend to file complaints with exaggerated versions has been highlighted. Senior Police Officers in Delhi have stated that the percentage of misuse is minimal and 22 most of the complaints are quite genuine though at times the complaints are instigated to make some exaggerated and untrue allegations. They gave details of the practices that are being followed by Delhi Police especially in regard to conciliation by qualified counselors. They have also highlighted the problem caused by NRI women filing dual complaints i.e., in Delhi under S, 498-A as well as the relevant laws in force governing domestic violence in the country where they last resided with the accused husband. In regard to misuse dimensions, there were different versions from the Police Officers in some other States. There was a divided opinion among the lawyers and judges (who attended the Conferences) at Visakhapatnam (A.P.), Chennai, Aurangabad and Bengaluru on the question whether it should remain non-bailable. However, the lawyers, both men and ladies in one voice stated that it should be made compoundable and reconciliation process should be put in place without loss of time. The same was the opinion expressed at the conferences in Judicial Academies in several States. 11. Diagnosis of the problem and reasonable solution 11.1 That Section 498A has been misused in many instances admits of no doubt. This has been taken judicial notice of in several cases. The Parliamentary Committee has also adverted to this aspect. The inputs received by the Law Commission and the representations made to the Home Ministry. also confirm this fact. However, there is no reliable data to reveal the extent of abuse or misuse. The data/information reveals that urban and educated 23 women are mostly coming forward to file the complaints under this section. The data also reveals that in most of the cases, apart from the husband, two of his relations (especially in-laws) are being prosecuted. At the same time, the Commission feels that misuse arising from exaggerated versions and over implication should not by itself be a ground to dilute the provision by making it bailable. Depriving the police of the power to arrest without warrant in order to have proper investigation would defeat the objective of the provision and may be counter-productive. The element of deterrence will be irretrievably lost, once it is made bailable. It is to be noted that the misuse did not flow from the section itself but the roots of misuse were grounded on the insensitive police responses and irresponsible legal advice. The victim/complainant deprived of her cool and objective thinking, quite often, unwittingly signs a complaint containing such exaggerated or partially false allegations. By the time she realizes the implications thereof, it would be too late. 11.2 In the Commission's view, the misuse could be minimized by taking such measures as would ensure the strict observance of the law governing arrest as evolved in D.K. Basu's case and incorporated in the statute i.e., in Chapter-V of Cr. P.C. The police at present either overact or adopt indifferent attitude in many a case. They are expected to act with due sensitivity and with the realization that they are dealing with an alleged offence arising out of strained matrimonial relations and that nothing should be done to disrupt the chances of reconciliation, or to cause trauma to the children. While launching of investigation - preliminary or otherwise, without delay is desirable, the 24 arrest and such other drastic measures should not close the doors for reconciliation and amicable settlement. The Law Commission has already recommended that the offence under Section 498-A should be made compoundable. This is the minimum that could be done to promote the restorative, not merely penal goal of the law. It may be noted that even under the Prevention of Domestic Violence Act, a specific provision is enacted providing for conciliation at the earliest on the intervention of Magistrate. 12. Power of Arrest - a balanced approach 12.1 Power of arrest vested with the Police Officer in a cognizable offence is no doubt a potent weapon to enforce the penal provision. However, this weapon should be sparingly drawn out of its sheath and wielded only if necessary. It shall not be used at the whim and fancy of the I.O. or be treated as a panacea for checking such offences. The attitude to arrest first and then proceed with the rest is despicable. Mechanical, casual and hasty application of the power of arrest is counter-productive and negates the fundamental right enshrined in Art. 21. Such attitude is at the root of misuse of S. 498A. The provisions in Cr.PC regulating and channelizing the power of arrest should act as guiding star to the police and their spirit and purpose should be foremost in their minds. Overreach is as bad as inaction. The need for caution in exercising the drastic power of arrest in the context of cases u/s 498-A has been emphasized time and again by the Courts and the parliamentary Committee. Similarly, the need to keep the doors for reconciliation open and to restore the family ties if 25 possible has also been highlighted in many judgments and even in statutory provisions dealing with matrimonial disputes and domestic violence. Arbitrary and indiscriminate arrests are an anathema to the rule of law and values of criminal justice. In the context of Section 498-A complaints, it tends to become a handy tool to the police officers who lack sensitivity or act with oblique motives. The objective of the provision is not better subserved by viewing arrest as the most effective tool. Arrest pending investigation or thereafter should never be viewed as a well deserved punitive measure and it should be exercised on an objective appraisal of the statutorily laid down conditions and criteria. 12.2 The value of proportionality permeates the newly introduced provisions relating to arrest. If these provisions are scrupulously followed, the potential for arbitrary action on the part of police is minimized. Needless to say that the power of arrest is coupled with the duty to act reasonably. S. 498-A admits of various degrees of cruelty which can be broadly categorized as less serious and more serious. Uniformity of approach in exercising the power of arrest is bound to result in undue hardship and unintended results. 12.3 It is apposite at this juncture to recall the following significant observations made in Joginder Kumar's case: "The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two? A 26 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 deciding which comes first the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights". 12.4 The need to balance personal liberty with law enforcement has been stressed in Nandini Satpathy's case5 by quoting Lewis Mayers: The paradox has been put sharply by Lewis Mayers: "To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right". 13. Analysis of the provisions relating to arrest and the duty of police 13.1 Now, let us analyse the provisions relating to arrest in Chapter-V and evolve some guidelines as to how the police is expected to act when a FIR disclosing an offence u/s 498-A is received. 5 AIR 1978 SC 27 13.2 Section 41, Cr. P.C., as recast by Act 5 of 2009, lays down certain conditions and restrictions for arresting a person without an order from the Magistrate and without a warrant. There are three situations dealt with by Section 41. Clause (a) speaks of a person committing a cognizable offence in the presence of a police officer. He can be arrested straight away. We are more concerned with clauses (b) and (ba). Clause (ba) relates to power of arresting a person 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 or with death sentence. Thus, the more serious cognizable offences are within the ambit of clause (ba). The conditions for arrest without warrant as set out in clause (ba) are (i) receipt of credible information of cognizable offence; and (2) on the basis of such information, the police officer 'has reason to believe' that the such person has committed the offence. The preceding clause (b) governs cognizable offences punishable with imprisonment for a term extending to seven years6. More stringent conditions for arrest have been laid down in Cl.(b). A reasonable complaint' or 'a credible information' or 'a reasonable suspicion' that a person has committed a cognizable offence triggers the application of this part of section 41. In such a case, the power of arrest is subject to two conditions which operate cumulatively. First the police officer should have 'reason to believe' on the basis of such complaint, information, or suspicion that a person has committed the offence. Apart from the condition of formation of reasonable 6 The punishment prescribed by S,498A is imprisonment extending to three years and fine. 28 belief on the basis of the complaint or information, the police officer has to be satisfied further that the arrest is necessary for one or more of the purposes envisaged by sub-clauses (a) to (e) of clause (ii) of section 41(1)(b). For ready reference, the said sub-clause (ii) is extracted hereunder:- (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. These conditions are in the nature of mandatory prescriptions to be followed by the police officer before resorting to the drastic power of arrest. The conditions in other clauses of Section 41 are not relevant for our purpose and hence not discussed. 13.3 When a suspect is arrested and produced before a Magistrate for extension of police custody, the Magistrate has to address the question whether specific reasons have been recorded for arresting the person and if so, prima facie, those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent, there could be judicial scrutiny at that stage. If this scrutiny is there, the wrong committed by the police officer - 29 intentionally or unwittingly, could be reversed at the earliest. In Section 498-A cases, it is not too easy to reach the satisfaction that one or more of the clauses in Section 41 are attracted. What could be achieved by custodial interrogation could very well be achieved by interrogating the accused in the course of initial or preliminary investigation. The husband and other male relations can be called upon to appear before the I.O. on the specified date as laid down in Section 41-A. The I.O. cannot proceed on the assumption straightaway that arrest is the best way to extract truth, especially in matrimonial offences. He must always bear in mind that arrest is not the rule and it should be resorted to only on the satisfaction of the conditions statutorily prescribed. There are reports that many arrests in S. 498-A cases are made by police on extraneous considerations or without proper application of mind. At the same time, there are also reports that the complaints under section 498-A do not receive serious attention of police and the victim is always viewed with suspicion. Such police inaction too has to be disapproved. 13.4 The Explanation to Section 498-A which defines cruelty is in two parts. Clause (a) of the Explanation deals with aggravated forms of cruelty which cause grave injury. Firstly, wilful conduct of such a grave nature as is likely to drive the woman to commit suicide falls within the ambit of clause (a). The second limb of clause (a) lays down that willful conduct which causes grave injury or danger to life, limb or health (whether mental or physical) of the woman is to be regarded as 'cruelty'. Dowry related harassment is within clause (b) of the Explanation. When the FIR coupled with the statement of the 30 victim woman discloses cruelty of grave nature falling within clause (a), the police officer has to act swiftly and promptly especially if there is evidence of physical violence. In the first instance, proper medical aid and the assistance of counselors shall be provided to the aggrieved woman and the process of investigation should start without any loss of time. The need for arresting the husband may be more demanding in such a situation in a case of cruelty falling under clause (b). We are adverting to this fact in order to make it clear that our observations earlier do not mean that under no circumstances, the power of arrest shall be initially resorted to or that the I.O. should invariably postpone the arrest/custodial interrogation till the reconciliation process comes to close. We would like to stress that the discretion has to be exercised reasonably having due regard to the facts of each case. Of course, the conditions subject to which the power of arrest has to be exercised should always guide the discretion to be exercised by the police officer. While no hard and fast rule as to the exercise of power of arrest can be laid down, we would like to point out that a balanced and sensitive approach should inform the decision of the I.O. and he shall not be too anxious to exercise that power. There must be good and substantial reasons for arriving at the satisfaction that imminent arrest is necessary having regard to the requirements of clause (ii) of Section 41(1)(b) of Cr. P.C. In this context, the Commission would like to stress that the practice of mechanically reproducing in the case diary all or most of the reasons contained in the said clause for effecting arrest should be discouraged and discontinued. The Head of Police department should issue 31 necessary instructions in this regard which will serve as a safeguard against arbitrary arrests in S,498-A cases. 13.5 The investigating officers should remind themselves of the pertinent observations made by the Supreme Court in Joginder Kumar vs. State of U.P.7. After referring to the 3rd report of National Police Commission, the Supreme Court placed the law of arrest in a proper perspective by holding: "The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. 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. Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England". 13.6 In Siddaram Satlingappa vs. State of Maharashtra8, it was observed: 7 AIR 1994 SC 1349; (1994) 4 SCC 260 8 AIR 2011 SC 312 (Para 123) 32 "The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case". 14. Certain guidelines / prescriptions to mitigate misuse 14.1 Certain Dos and Don'ts to the police personnel by the Head of the police dept. in order to inculcate the sense of responsibility and sensitivity is the need of the hour. The abuse of the provision by resorting to the power of arrest indiscriminately should be checked at all cost. The following prescriptions/guidelines shall be kept in view by the I.Os and be incorporated in the Circular to be issued by the Head of Police Department. 14.2 The FIR has to be registered as per law if it discloses an offence and the Police Officer has reason to suspect the commission of offence (as laid down in Section 157). However, on the point of registration of FIR, the police officials have to necessarily follow the decisions/directives of High Court on the point. 14.3 On receiving the FIR, the police officer should cross-check with the complainant the correctness of the contents and whether she voluntarily made all the allegations. For this purpose, she may be interviewed/questioned preferably in the presence of a lady official or a respectable lady or a Counsellor attached to a reputed NGO. 14.4 Then, without delay, the police officer must initiate the process of initial investigation by visiting the house of the husband and have a first hand account of the version of husband and other relations and take such measures as may be necessary to ensure that the accused do not indulge in acts 33 calculated to endanger the safety and liberty of the complainant. Both sides should be counseled not to precipitate the situation. Thereafter, steps should be taken to refer the matter to the Mediation Centre if any or District Legal aid Centre or a team of Counselors/conciliators if any attached to the Police District. In the absence of professional counsellors, the SP of the District or the DCP can form a team or panel of mediators/counselors. It may consist of IAS or other Civil Service Officers (preferably lady officers) and lady IPS Officers (unconnected to the case) or respected members of media, legal or other professions. If the parties choose to have specified persons as mediators/conciliators, they must be referred to such persons. The police may obtain the report of mediators or conciliators within a maximum period of thirty days and then, depending on the outcome, they may proceed further in the matter. If the situation demands, investigation shall be completed and at that stage, if custodial interrogation is found necessary for the relevant reasons to be recorded in writing, the husband and others can be arrested on taking the permission of DCP/SP level officer. Then I.O. shall also take such action as is necessary to restore the valuable belongings of the complainant woman. These rules or guidelines if followed would prevent misuse while fostering a valued based approach. 14.5 In the case of Non-Resident Indians, it is reported that the passports are seized when they come to India at the stage of investigation or they are sent to the Passport Officer for passing an order of impounding. During the pendency 34 of the case in the Court, the prosecutor often requests the Court to direct depositing of the passport as a condition for granting bail. This should not be done in all cases mechanically as it will cause irreversible damage to the husband/accused and he will be exposed to the risk of losing the job and the visa being terminated. Ultimately, there may be amicable settlement and/ or quashing of proceedings or acquittal/discharge but the damage has already been done. The prospect of the accused remaining unemployed would not be in the interests of both as the loss of earnings will have a bearing on the maintenance claims of the wife, apart from depriving him of the means of livelihood. The proper course would be to take bonds and sureties for heavy amounts and the prosecution taking necessary steps to expeditiously complete the trial. This aspect should also be brought to the notice of concerned police officers by means of circulars issued by the DGPs. 15. Home Ministry's advisory and further action to be taken 15.1 In the Commission's view, the approach of Ministry of Home Affairs in the Advisory issued by it in No.3/5/2008-Judl.Cell dt. 20th October, 2009 is the correct approach and the instructions issued therein need to be reiterated after convening a conference of DGPs of every State so that follow up circulars will be issued by them for guidance of police officials within their jurisdiction. This is what the Home Ministry said in the said Circular: "To comply with the procedure as laid down In D.K. Basu's case, the Hon'ble Supreme Court in its judgement dated 18.12.96 in CRL CWP No.539/86 - DK Basu vs. State of West Bengal has stated that the power 35 of arrest without warrant should be exercised only after a reasonable satisfaction is reached, after some investigation as to the genuinness and bonafides of a complaint and a reasonable belief as to both the person's complicity as well as the need to effect arrest. Therefore, in any matrimonial dispute, it may not necessary in all cases to immediately exercise the powers of arrest. Recourse may be initially taken to dispute settlement mechanism such as conciliation, mediation, counseling of the parties etc." 15.2 The views of the National Commission for Women (extracted in 140th Report of the Rajya Sabha Committee on Petitions) substantially accords with the instructions issued by the Ministry of Home Affairs in the advisory issued by it. 15.3 We have indicated earlier what the police is expected to do (vide paras 13 supra). These aspects should also form the subject matter of the Circular/Standing order to be issued by the DGPs/Police Commissoners for the guidance of the police personnel. A mechanism to monitor the observance of the guidelines/instructions should be put in place. Regular and dedicated supervision by high level officers would go a long way in ensuring enforcement of this provision on right lines. 15.4 In some States, as noticed earlier, there are directives of the High Courts as to how the police should handle the complaints under Section 498-A. Based on these directives, it is noticed that certain instructions have already been issued by the DGPs. It is needless to state that the High Court's directives are binding and a fresh circular cannot be issued by the DGP superseding the instructions based on the High Court's judgment. In such a situation, the proper course would be to apprise the High Court of the decision taken at the 36 conference of DGPs and to request the High Court to modify the directions appropriately in the light of the decision taken so that there will be uniformity in approach all over the country. 16. Amendment of Section 41 Cr.PC by the addition of sub-section (3) 16.1 At the same time, in the interest of uniformity and certainty, it is desirable that the essential guidelines are placed within legislative framework, to the extent necessary. We therefore suggest that sub-section (3) may be added to Section 41 of Cr.PC on the following lines: (3): Where information of the nature specified in clause(b) of sub- section(1) of Section 41 has been received regarding the commission of offence under section 498-A of Indian Penal Code, before the police officer resorts to the power of arrest, shall set in motion the steps for reconciliation between the parties and await its outcome for a period of 30 days, unless the facts disclose that an aggravated form of cruelty falling under clause (a) of Explanation to S, 498-A has been committed and the arrest of the accused in such a case is necessary for one of the reasons specified in clause (b) of Section 41. 16.2 We would like to add that this proposed sub-section is not something materially different from the existing law and perhaps its utility lies in making explicit what is really implicit in light of the peculiar problems related to enforcement of S, 498-A. It is a procedural amendment which may act against inappropriate use of provision while at the same time not diluting the importance of life and liberty protection to women. 37 17. S, 358 of Cr.PC - raising the compensation limit 17.1 Another legislative change which the Commission recommends to discourage false and frivolous complaints leading to the arrest and prosecution of the suspect/accused is to amend Section 358 of Cr.PC so as to raise the compensation from rupees one thousand to rupees fifteen thousand. The words "not exceeding one thousand rupees" shall be substituted by the words "not exceeding fifteen thousand rupees". This amendment is necessary to check to some extent the false and irresponsible FIRs/complaints in general, not merely confined to S, 498A. This is without prejudice to the Provision in IPC (Section 211) under which falsely charging a person of an offence is punishable. 17-A. Punishment for misuse - no specific provision necessary The suggestion of some respondents (in some Articles also, such a suggestion was made) that there must be a specific provision to punish women who file complaints for extraneous reasons is rather misconceived. There is no reason why only for S,498A cases, such a special provision shall be made. In any case, the existing provisions, viz. S,182, 211 of IPC and S,250 of Cr.PC can take care of malicious accusations etc, apart from Section 358 Cr.PC. 18. State's obligation to take care of estranged women in distress One more important aspect on which attention should be bestowed by the states and Union Territories is providing necessary aid and assistance to 38 the hapless women who having gone to the Police Station with a genuine grievance and in a state of distress do not venture to go back to marital home or even unable to stay with relatives. Either they do not have parents who can take care of or maintain them during the period of trauma or there is reluctance on the part of even close relations to allow her to stay with them without hassles. The process of reconciliation and compromise may take some time and there is no knowing what will be its outcome. Further, the victim woman in distress would need immediate solace in the form of medical assistance and a temporary abode to stay, apart from proper counseling. In the circumstances in which she is placed, only the State or its instrumentalities can take care of her immediate needs. At present, even in cities, there are no Hostels and Shelter Homes worth mentioning which are catering to the welfare of victimized women. Even if there are a few, no proper facilities are in place. There are no Crisis Centres attached to Women Police Stations even in major cities (excepting few) which can immediately provide succour and relief to the women in distress. The Commission would therefore like to emphasize the obvious that every Government should treat it as a paramount obligation on their part to cater to the immediate needs of victimized women leaving the matrimonial home and not in a position to stay with their relatives for various reasons. The women who are worst hit if assistance is not provided are those from the poor and middle class background. The States should consider this problem on a priority basis and 39 initiate necessary steps to alleviate the suffering of women in need of help as a part of the welfare goal ingrained in our Constitution. 19. Summary of Recommendations 19.1 Misuse of Section 498-A in many cases has been judicially noticed by the apex court as well as various High Courts. This has also been taken note of by Parliamentary Committee on Petitions (Rajya Sabha). However, misuse (the extent of which is not established by any empirical study) by itself is not a ground to abolish S,498-A or to denude the Section of its teeth. The social objective behind the Section and the need for deterrence should be kept in view while at the same time ensuring that the complaints filed with false or exaggerated allegations out of ulterior motives or in a fit of emotion should be curbed. 19.2 The need to spread awareness of the provision and available remedies especially in rural areas both among women and men is necessary and in this regard the District and Taluka Legal Services Authorities, the media, the NGOs and law students can play a meaningful role. 19.3 All endeavours shall be made for effecting reconciliation at the earliest with the help of professional counsellors, mediation and legal aid centres, retired officials/medical and legal professionals or friends and relations in whom the parties have faith. An action plan has to be drawn up for forming the panels in every district as well as extending necessary help to he aggrieved women. The I.O. should refrain from participating in the conciliation process. 40 19.4 The law on the question whether registration of FIR could be postponed for a reasonable time is in a state of uncertainty. Some High Courts have been directing that FIR shall not be registered under S, 498A (except in cases of visible violence, and the like) till the preliminary investigation is done and reconciliation process is completed. The issue has been referred to a larger Bench of Supreme Court recently. In this regard, the police has to follow the law laid down by the jurisdictional High Court until the Supreme Court decides the matter. 19.5 The offence under S, 498-A shall be made compoundable, with the permission of Court and subject to cooling off period of 3 months, as already recommended by this Commission in 237thReport. The preponderance of view is to make it compoundable. 19.6 The offence should remain non-bailable. However, the safeguard against arbitrary and unwarranted arrests lies in strictly observing the letter and spirit of the conditions laid down in Sections 41 and 41-A of Cr. PC relating to power of arrest and sensitizing the Police on the modalities to be observed in cases of this nature. The need for custodial interrogation should be carefully assessed. Over-reaction and inaction are equally wrong. Police should take necessary steps to ensure safety of the complainant and to prevent further acts of harassment. 19.7 The Home Ministry's Advisory dated 20th October 2009 on the subject of "Misuse of Section 498-A of IPC" as well as the guidelines / additional precautions set out in para 14 of this Report should be compiled and at a 41 conference of DGPs specially convened for this purpose by the Home Secretary, they must be apprised of the need to follow the said principles and guidelines and to issue circulars / standing orders accordingly. There should be a monitoring mechanism in the police Dept. to keep track of S, 498A cases and the observance of guidelines. 19.8 Without prejudice to the above suggestions, it has been recommended that as set out in para 16 above, sub-section (3) shall be added to Section 41 Cr. PC to prevent arbitrary and unnecessary arrests. The legislative mandate which is not materially different from the spirit underlying Sections 41 and 157 Cr. PC should be put in place in the interests of uniformity and clarity. 19.9 The compensation amount in Section 358 of Cr. PC shall be increased from one thousand rupees to fifteen thousand rupees and this proposed change is not merely confined to the Section under consideration. 19.10 The women police stations (under the nomenclature of Crimes Against Women Cell) should be strengthened both quantitatively and qualitatively. Well trained and educated lady police officers of the rank of Inspector or above shall head such police stations. CWCs should be established in every district with adequate trained personnel. Panels of competent professional counsellors and respected elders / professionals who can counsel and conciliate should be maintained by SP/SSP for every district. There shall be separate room in the police stations for women complainants and the accused women in S, 498-A related cases. 42 19.11 Hostels or shelter homes for the benefit of women who would not like to go back to marital homes should be maintained in cities and District headquarters with necessary facilities. The assistance given to them shall be treated as a part of social welfare measure which is an obligation of the welfare State. 19.12 The passport of non-resident Indians involved in Section 498-A cases should not be impounded mechanically and instead of that, bonds and sureties for heavy amounts can be insisted upon. 19.13 Above all, the need for expeditious disposal of cases under section 498A should be given special attention by the prosecution and Judiciary. [Justice (Retd.) P. V. Reddi] Chairman [Justice (Retd.) Shiv Kumar Sharma] [Amarjit Singh] Member Member New Delhi 29 August 2012 43 Annexure - I [refer para 1.1of the Report] LAW COMMISSION OF INDIA Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code 1. Keeping in view the representations received from various quarters and observations made by the Supreme Court and the High Courts, the Home Ministry of the Government of India requested the Law Commission of India to consider whether any amendments to s.498A of Indian Penal Code or other measures are necessary to check the alleged misuse of the said provision especially by way of over-implication. 2. S.498A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been prescribed. The expression 'cruelty' has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of 'cruelty'. The offence under s.498A is cognizable, non-compoundable and non-bailable. 3. In a recent case of Preeti Gupta v. State of Jharkhand, the Supreme Court observed that a serious relook of the provision is warranted by the Legislature. "It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints. The tendency of over-implication is also reflected in a very large number of cases". The Court took note of the common tendency to implicate husband and all his immediate relations. In an earlier case also - Sushil Kumar Sharma v. UOI (2005), the Supreme Court lamented that in many instances, complaints under s.498A were being filed with an oblique motive to wreck personal vendetta. "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", it was observed. It was also observed that "by misuse of the provision, a new legal terrorism can be unleashed". 4. The factum of over-implication is borne out by the statistical data of the cases under s.498A. Such implication of the relatives of husband was found to be unjustified in a large number of decided cases. While so, it appears that the women especially from the poor strata of the society living in rural areas rarely take resort to the provision. 5. The conviction rate in respect of the cases under s.498A is quite low. It is learnt that on account of subsequent events such as amicable 44 settlement, the complainant women do not evince interest in taking the prosecution to its logical conclusion. 6. The arguments for relieving the rigour of s.498A by suitable amendments (which find support from the observations in the Court judgments and Justice Malimath Committee's report on Reforms of Criminal Justice System) are: Once a complaint (FIR) is lodged with the Police under s.498A/406 IPC, it becomes an easy tool in the hands of the Police to arrest or threaten to arrest the husband and other relatives named in the FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation. When the members of a family are arrested and sent to jail without even the immediate prospect of bail, the chances of amicable re-conciliation or salvaging the marriage, will be lost once and for all. The possibility of reconciliation, it is pointed out, cannot be ruled out and it should be fully explored. The imminent arrest by the Police will thus be counter-productive. The long and protracted criminal trials lead to acrimony and bitterness in the relationship among the kith and kin of the family. Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated by over-zealous/callous actions on the part of the Police by taking advantage of the harsh provisions of s.498A of IPC together with its related provisions in CrPC. It is pointed out that the sting is not in s.498A as such, but in the provisions of CrPC making the offence non-compoundable and non- bailable. 7. The arguments, on the other hand, in support of maintaining the status quo are briefly: S.498A and other legislations like Protection of Women from Domestic Violence Act have been specifically enacted to protect a vulnerable section of the society who have been the victims of cruelty and harassment. The social purpose behind it will be lost if the rigour of the provision is diluted. The abuse or misuse of law is not peculiar to this provision. The misuse can however be curtailed within the existing framework of law. For instance, the Ministry of Home Affairs can issue 'advisories' to State Governments to avoid unnecessary arrests and to strictly observe the procedures laid down in the law governing arrests. The power to arrest should only be exercised after a reasonable satisfaction is reached as to the bona fides of a complaint and the complicity of those against whom accusations are made. Further, the first recourse should be to effect conciliation and mediation between the warring spouses and the recourse to filing of a chargesheet under s.498A shall be had only in cases where such efforts fail and there appears to be a prima facie case. Counselling of parties should be done by professionally qualified counsellors and not by the Police. 45 7.1 These views have been echoed among others by the Ministry of Women and Child Development. 7.2 Further, it is pointed out that a married woman ventures to go to the Police station to make a complaint against her husband and other close relations only out of despair and being left with no other remedy against cruelty and harassment. In such a situation, the existing law should be allowed to take its own course rather than over-reacting to the misuse in some cases. 7.3 There is also a view expressed that when once the offending family members get the scent of the complaint, there may be further torture of the complainant and her life and liberty may be endangered if the Police do not act swiftly and sternly. It is contended that in the wake of ever increasing crimes leading to unnatural deaths of women in marital homes, any dilution of Section 498-A is not warranted. Secondly, during the long-drawn process of mediation also, she is vulnerable to threats and torture. Such situations too need to be taken care of. 8. There is preponderance of opinion in favour of making the said offence compoundable with the permission of the court. Some States, for e.g., Andhra Pradesh have already made it compoundable. The Supreme Court, in a recent case of --*---, observed that it should be made compoundable. However, there is sharp divergence of views on the point whether it should be made a bailable offence. It is pleaded by some that the offence under s.498A should be made bailable at least with regard to husband's relations.*Ramgopal v. State of M. P. in SLP (Crl.) No. 6494 of 2010 (Order dt. July 30, 2010. 8.1 Those against compoundability contend that the women especially from the rural areas will be pressurized to enter into an unfair compromise and further the deterrent effect of the provision will be lost. 9. The Commission is of the view that the Section together with its allied CrPC provisions shall not act as an instrument of oppression and counter-harassment and become a tool of indiscreet and arbitrary actions on the part of the Police. The fact that s.498A deals with a family problem and a situation of marital discord unlike the other crimes against society at large, cannot be forgotten. It does not however mean that the Police should not appreciate the grievance of the complainant woman with empathy and understanding or that the Police should play a passive role. 10. S.498A has a lofty social purpose and it should remain on the Statute book to intervene whenever the occasion arises. Its object and purpose cannot be stultified by overemphasizing its potentiality for abuse or misuse. Misuse by itself cannot be a ground to repeal it or to take away its teeth wholesale. 11. While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s.498A to the extent of defeating its purpose especially having regard to the fact that 46 atrocities against women are on the increase. A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution - legislative or otherwise. 12. There is also a need to create awareness of the provisions especially among the poor and illiterate living in rural areas who face quite often the problems of drunken misbehavior and harassment of women folk. More than the women, the men should be apprised of the penal provisions of law protecting the women against harassment at home. The easy access of aggrieved women to the Taluka and District level Legal Service Authorities and/or credible NGOs with professional counsellors should be ensured by appropriate measures. There should be an extensive and well-planned campaign to spread awareness. Presently, the endeavour in this direction is quite minimal. Visits to few villages once in a way by the representatives of LSAs, law students and social workers is the present scenario. 13. There is an all-round view that the lawyers whom the aggrieved women or their relations approach in the first instance should act with a clear sense of responsibility and objectivity and give suitable advice consistent with the real problem diagnosed. Exaggerated and tutored versions and unnecessary implication of husband's relations should be scrupulously avoided. The correct advice of the legal professionals and the sensitivity of the Police officials dealing with the cases are very important, and if these are in place, undoubtedly, the law will not take a devious course. Unfortunately, there is a strong feeling that some lawyers and police personnel have failed to act and approach the problem in a manner morally and legally expected of them. 14. Thus, the triple problems that have cropped up in the course of implementation of the provision are:(a) the police straightaway rushing to arrest the husband and even his other family members (named in the FIR), (b) tendency to implicate, with little or no justification, the in-laws and other relations residing in the marital home and even outside the home, overtaken by feelings of emotion and vengeance or on account of wrong advice, and (c) lack of professional, sensitive and empathetic approach on the part of the police to the problem of woman under distress. 15. In the context of the issue under consideration, a reference to the provisions of Protection of Women from Domestic Violence Act, 2005 (for short PDV Act) which is an allied and complementary law, is quite apposite. The said Act was enacted with a view to provide for more effective protection of rights of women who are victims of violence of any kind occurring within the family. Those rights are essentially of civil nature with a mix of penal provisions. Section 3 of the Act defines domestic violence in very wide terms. It encompasses the situations set out in the definition of 'cruelty' under Section 498A. The Act has devised an elaborate machinery to safeguard the interests of women subjected to 47 domestic violence. The Act enjoins the appointment of Protection Officers who will be under the control and supervision of a Judicial Magistrate of First Class. The said officer shall send a domestic incident report to the Magistrate, the police station and service providers. The Protections Officers are required to effectively assist and guide the complainant victim and provide shelter, medical facilities, legal aid etc. and also act on her behalf to present an application to the Magistrate for one or more reliefs under the Act. The Magistrate is required to hear the application ordinarily within 3 days from the date of its receipt. The Magistrate may at any stage of the proceedings direct the respondent and/or the aggrieved person to undergo counseling with a service provider. 'Service Providers' are those who conform to the requirements of Section 10 of the Act. The Magistrate can also secure the services of a welfare expert preferably a woman for the purpose of assisting him. Under Section 18, the Magistrate, after giving an opportunity of hearing to the Respondent and on being prima facie satisfied that domestic violence has taken place or is likely to take place, is empowered to pass a protection order prohibiting the Respondent from committing any act of domestic violence and/or aiding or abetting all acts of domestic violence. There are other powers vested in the Magistrate including granting residence orders and monetary reliefs. Section 23 further empowers the Magistrate to pass such interim order as he deems just and proper including an ex-parte order. The breach of protection order by the respondent is regarded as an offence which is cognizable and non- bailable and punishable with imprisonment extending to one year (vide Section 31). By the same Section, the Magistrate is also empowered to frame charges under Section 498A of IPC and/or Dowry Prohibition Act. A Protection Officer who fails or neglects to discharge his duty as per the protection order is liable to be punished with imprisonment (vide Section 33). The provisions of the Act are supplemental to the provisions of any other law in force. A right to file a complaint under Section 498A is specifically preserved under Section 5 of the Act. 15.1 An interplay of the provisions of this Act and the proceedings under s.498A assumes some relevance on two aspects: (1) Seeking Magistrate's expeditious intervention by way of passing a protective interim order to prevent secondary victimization of a complainant who has lodged FIR under s.498A. (2) Paving the way for the process of counselling under the supervision of Magistrate at the earliest opportunity. 16. With the above analysis and the broad outline of the approach indicated supra, the Commission invites the views of the public/NGOs/institutions/Bar Associations etc. on the following points, before preparing and forwarding to the Government the final report: 48 Questionnaire 1) a) What according to you is ideally expected of Police, on receiving the FIR alleging an offence u/s 498A of IPC? What should be their approach and plan of action? b) Do you think that justice will be better meted out to the aggrieved woman by the immediate arrest and custodial interrogation of the husband and his relations named in the FIR? Would the objective of s.498A be better served thereby? 2) a) The Supreme Court laid down in D.K. Basu (1996) and other cases that the power of arrest without warrant ought not to be resorted to in a routine manner and that the Police officer should be reasonably satisfied about a person's complicity as well as the need to effect arrest. Don't you agree that this rule applies with greater force in a situation of matrimonial discord and the police are expected to act more discreetly and cautiously before taking the drastic step of arrest? b) What steps should be taken to check indiscriminate and unwarranted arrests? 3) Do you think that making the offence bailable is the proper solution to the problem? Will it be counter-productive? 4) There is a view point supported by certain observations in the courts' judgments that before effecting arrest in cases of this nature, the proper course would be to try the process of reconciliation by counselling both sides. In other words, the possibility of exploring reconciliation at the outset should precede punitive measures. Do you agree that the conciliation should be the first step, having regard to the nature and dimension of the problem? If so, how best the conciliation process could be completed with utmost expedition? Should there be a time-limit beyond which the police shall be free to act without waiting for the outcome of conciliation process? 5) Though the Police may tender appropriate advice initially and facilitate reconciliation process, the preponderance of view is that the Police should not get involved in the actual process and their role should be that of observer at that stage? Do you have a different view? 6) a) In the absence of consensus as to mediators, who will be ideally suited to act as mediators/conciliators - the friends or elders known to both the parties or professional counsellors (who may be part of NGOs), lady and men lawyers who volunteer to act in such matters, a Committee of respected/retired persons of the locality or the Legal Services Authority of the District? b) How to ensure that the officers in charge of police stations can easily identify and contact those who are well suited to conciliate or mediate, especially having regard to the fact that professional and competent counsellors may not be available at all places and any delay in initiating the process will lead to further complications? 49 7) a) Do you think that on receipt of complaint under S.498A, immediate steps should be taken by the Police to facilitate an application being filed before the Judicial Magistrate under the PDV Act so that the Magistrate can set in motion the process of counselling/conciliation, apart from according interim protection? b) Should the Police in the meanwhile be left free to arrest the accused without the permission of the Magistrate? c) Should the investigation be kept in abeyance till the conciliation process initiated by the Magistrate is completed? 8) Do you think that the offence should be made compoundable (with the permission of court)? Are there any particular reasons not to make it compoundable? 9) Do you consider it just and proper to differentiate the husband from the other accused in providing for bail? 10) a) Do you envisage a better and more extensive role to be played by Legal Services Authorities (LSAs) at Taluka and District levels in relation to s.498A cases and for facilitating amicable settlement? Is there a need for better coordination between LSAs and police stations? b) Do you think that aggrieved women have easy access to LSAs at the grassroot level and get proper guidance and help from them at the pre-complaint and subsequent stages? c)Are the Mediation Centres in some States well equipped and better suited to attend to the cases related to S,498-A? 11) What measures do you suggest to spread awareness of the protective penal provisions and civil rights available to women in rural areas especially among the poorer sections of people? 12) Do you have any informations about the number of and conditions in shelter homes which are required to be set up under PDV Act to help the aggrieved women who after lodging the complaint do not wish to stay at marital home or there is none to look after them? 13) What according to you is the main reason for low conviction rate in the prosecutions u/s 498A? 14) (a) Is it desirable to have a Crime Against Women Cell (CWC) in every district to deal exclusively with the crimes such as S.498A? If so, what should be its composition and the qualifications of women police deployed in such a cell? (b) As the present experience shows, it is likely that wherever a CWC is set up, there may be substantial number of unfilled vacancies and the personnel may not have undergone the requisite training. In this situation, whether it would be advisable to entrust the investigation etc. to CWC to the exclusion of the jurisdictional Police Station? ---
50 Annexure - II [refer para 8.3 of the Report] Extracts from the 237th Report of the Law Commission of India on 'Compounding of (IPC) Offences'
5. Compoundability of Certain Offences 5.1 Now, we shall consider the question of compoundability of certain specific offences.
Section 498A, IPC 5.2 Whether the offence specified in Section 498A should be made compoundable, and, if yes, whether it should be compoundable without or with the permission of the Court, is the two-fold question.
5.3 Section 498A penalizes the husband or the relatives of the husband for subjecting a woman to cruelty. The definition of cruelty as given in the Section is in two parts: 1) Willful conduct of such a nature that is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (mental or physical), 2) Harassment of the woman with a view to coercing her or her relatives to meet an unlawful demand for any property or valuable security. Thus the dowry related harassment as well as violent conduct on the part of the husband or his relations by causing injury or danger to her life, limb or health, are comprehended within the scope of Section 498A. Quite often, the prosecution under Section 498A IPC is coupled with prosecution under Sections 3 and 4 of Dowry Prohibition Act, 1961 as well.
5.4 Normally, if the wife is prepared to condone the ill-treatment and harassment meted out to her either by reason of change in the attitude or repentance on the part of the husband or reparation for the injury caused to her, the law should not stand in the way of terminating the criminal proceedings. However, the argument that is mainly advanced against the compoundability is that the dowry is a social evil and the law designed to punish those who harass the wives with demand of dowry should be allowed to take its full course instead of putting its seal of approval on the private compromises. The social consciousness and the societal interest demands that such offences should be kept outside the domain of out-of-court settlement, it is argued. There can be no doubt that in dealing with this aspect, the impact of the crime on the society and the degree of social harm that might result, should be duly considered. At the same time, undesirable consequences that follow if compounding is not allowed, ought to be kept in view because the social harm or societal interest cannot be considered in vacuum. A holistic and rational view has to be taken. While no impediments shall be placed against 51 the effective operation of law enacted to curb a social evil, it should not be forgotten that the society is equally interested in promoting marital harmony and the welfare of the aggrieved women. A rational and balanced approach is all the more necessary for the reason that other avenues are open to the reconciled couple to put an end to the criminal proceedings. One such course is to file a 'quash' petition under Section 482 of CrPC in the High Court. Whether it is necessary to drive them to go through this time consuming and costly process is one pertinent question. If a wife who suffered in the hands of the husband is prepared to forget the past and agreeable to live amicably with the husband or separate honourably without rancor or revenge, the society would seldom condemn such move nor can it be said that the legal recognition of amicable settlement in such cases would encourage the forbidden evil i.e. the dowry. Section 498A should not be allowed to become counter-productive. In matters relating to family life and marital relationship, the advantages and beneficent results that follow from allowing the discontinuance of legal proceedings to give effect to a compromise or reconciliation would outweigh the degree of social harm that may be caused by non-prosecution. If the proceedings are allowed to go on despite the compromise arrived at by both sides, either there will be little scope for conviction or the life of the victim would become more miserable. In what way the social good is achieved thereby? We repeat that a doctrinaire and isolated approach cannot be adopted in dealing with this issue. The sensitivity of a family dispute and the individual facts and circumstances cannot be ignored. Hence, the Commission is not inclined to countenance the view that dowry being a social evil, compounding should not be allowed under any circumstances. Incidentally, it may be mentioned that many offences having the potentiality of social harm, not merely individual harm, are classified as compoundable offences. Further, the gravamen of the charge under Section 498-A need not necessarily be dowry- related harassment. It may be 'cruelty' falling only within clause (a) of the Explanation and the demand of dowry is not an integral part of that clause. 5.5 Another argument against compoundability is that the permission to compound would amount to legal recognition of violence against women and that the factum of reconciliation cannot be a justifiable ground to legally condone the violence. The acceptance of such an argument would imply that the priority of law should be to take the criminal proceedings to their logical end and to inflict punishment on the husband irrespective of the mutual desire to patch up the differences. It means - reconciliation or no reconciliation, the husband should not be spared of the impending prosecution and the punishment if any; then only Section 498A would achieve its objective. We do not think that the objective of Section 498A will be better achieved by allowing the prosecution to take its own course without regard to the rapprochement that has taken place between the couple in conflict. As observed earlier, a balanced and holistic approach is called for in handling a sensitive issue affecting the family and social relations. Reconciliation without compounding will not be practically possible and the law should not ignore the important 52 event of reconciliation. The emphasis should not be merely on the punitive aspect of the law. In matters of this nature, the law should not come in the way of genuine reconciliation or revival of harmonious relations between the husband and estranged wife. Wisdom behind all prosecutions and punishments is to explore a judicious mix of deterrence, deprivation of liberty and repentance and reformation. Any emphasis on one aspect alone, as has been found in the working of harsh and cruel punishment regimes, may become a pigeonhole model.
5.6 The other argument which is put forward against compounding is that hapless women especially those who are not much educated and who do not have independent means of livelihood, may be pressurized and coerced to withdraw the proceeding and the victim woman will be left with no option but to purchase peace though her grievance remains unsolved. However, this argument may not be very substantial. The same argument can be put forward in respect of compoundable offences wherever the victims are women. The safeguard of Court's permission would, by and large, be a sufficient check against the possible tactics that may be adopted by the husband and his relations/friends. The function of the Court in this matter is not a mere formality. The Judicial Magistrate or Family Court Judge is expected to be extra-cautious and play an active role. In this regard, the judge can take the assistance of a woman lawyer or a professional counselor or a representative of Legal Services Authority and the woman concerned can be examined in his/her chambers in the presence of one of them. Alternatively, the assistance of a lady colleague can also be sought for examining a woman victim in the chambers. Normally the trial Magistrates/Judges are sensitized in gender- related issues in the course of training at the Judicial Academies. In cities like Delhi, Bangalore, Chennai etc. competent and trained mediators are involved in the process of bringing about an amicable settlement in marital disputes. Though the Court is expected to act with due care and caution in dealing with the application for compounding the offence under Section 498A, we are of the view that it is desirable to introduce an additional safeguard as follows:-
After the application for compounding an offence under S.498A of Indian Penal Code is filed and on interviewing the aggrieved woman, preferably in the Chamber in the presence of a lady judicial officer or a representative of District Legal Services Authority or a counselor or a close relation, if the Magistrate is satisfied that there was prima facie a voluntary and genuine settlement between the parties, the Magistrate shall make a record to that effect and the hearing of application shall be adjourned by three months or such other earlier date which the Magistrate may fix in the interests of Justice. On the adjourned date, the Magistrate shall again interview the victim woman in the like manner and then pass the final order permitting or refusing to compound the offence after giving opportunity of hearing to the accused. In the interregnum, it 53 shall be open to the aggrieved woman to file an application revoking her earlier offer to compound the offence on sufficient grounds.
5.7 Accordingly, it is proposed to add sub-section (2A) to Section 320 CrPC. The proposed provision will ensure that the offer to compound the offence is voluntary and free from pressures and the wife has not been subjected to ill- treatment subsequent to the offer of compounding. Incidentally, it underscores the need for the Court playing an active role while dealing with the application for compounding the offence under Section 498-A.
5.8 The other points which deserve notice in answering the issue whether the offence under Section 498A should be made compoundable, are the following:-
th 5.8.1 The Law Commission of India in its 154 report (1996) recommended inclusion of S. 498A in the Table appended to Section 320(2) so that it can be compounded with the permission of the Court. The related extracts from the Report are as follows: "Of late, various High Courts have quashed criminal proceedings in respect of non-cognizable offences because of settlement between the parties to achieve harmony and peace in the society. For instance, criminal proceedings in respect of offences under Section 406, IPC, relating to criminal breach of trust of dowry articles or Istridhan and offences under section 498A, IPC relating to cruelty on woman by husband or relatives of husband were quashed in Arun Kumar Vohra v. RituVohra, Nirlap Singh v. State of Punjab."
th 5.8.2 In continuation of what was said in the 154 Report, we may point out 11 that the apex court, in the case of B.S. Joshi vs. State of Haryana , has firmly laid down the proposition that in order to subserve the ends of justice, the inherent power under Section 482 CrPC can be exercised by the High Court to quash the criminal proceedings at the instance of husband and wife who have amicably settled the matter and are desirous of putting end to the acrimony. The principle laid down in this case was cited with approval in Nikhil Merchant 12 13 vs. CBI . However, a coordinate Bench doubted the correctness of these decisions and referred the matter for consideration by a larger Bench. According to the referring Bench, the Court cannot indirectly permit compounding of non-compoundable offences.
th 5.8.3 The recommendation of the Law Commission in the 154 Report th regarding Section 498A was reiterated in the 177 Report (2001). The Commission noted that over the last several years, a number ofrepresentations had been received by the Law Commission from individuals and organizations to make the said offence compoundable.
5.8.4 Further, Justice Malimath Committee's Report on Reforms of Criminal Justice System strongly supported the plea to make Section 498 A a compoundable offence. The Committee observed:54
"A less tolerant and impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, especially if the husband cannot pay. Now the woman may change her mind and get into the mood to forget and forgive. The husband may also realize the mistakes committed and come forward to turn over a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she cannot do so as the offence is non- compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family...
This section, therefore, helps neither the wife nor the husband. The offence being non-bailable and non-compoundable makes an innocent person undergo stigmatization and hardship. Heartless provisions that make the offence non- bailable and non-compoundable operate against reconciliations. It is therefore necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together."
Though this Commission is not inclined to endorse the entirety of observations made in the above passage, some of them reinforce our conclusion to make it compoundable.
5.8.5 The views of Malimath Committee as well as the recommendations in the th 154 Report of Law commission were referred to with approval by the Department-Related Parliamentary Standing Committee on Home Affairs in its th 111 Report on the Criminal Law (Amendment) Bill 2003 (August 2005). The Standing Committee observed thus: "It is desirable to provide a chance to the estranged spouses to come together and therefore it is proposed to make the offence u/s 498A IPC, a compoundable one by inserting this Section in the Table th under sub-section(2) of Section 320 of CrPC". 5.8.6 The 128 Report of the said Standing Committee (2008) on the Code of Criminal Procedure (Amendment) th Bill, 2006 reiterated the recommendation made in the 111 Report. 5.8.7 The views of Supreme Court and High Courts provide yet another justification to treat the offence under Section 498A compoundable.
The Supreme Court in a brief order passed in Ramgopal vs. State of M.P. observed that the offences under Section 498A, among others, can be made compoundable by introducing suitable amendment to law. The Bombay High Court14, as long back as in 1992, made a strong suggestion to amend Section 320 of CrPC in order to include Section 498A within that Section.15
In the case of Preeti Gupta vs. State of Jharkhand , the Supreme Court, speaking through Dalvir Bhandari, J. exhorted the members of the Bar to treat every complaint under Section 498A as a basic human problem and to make a 55 serious endeavour to help the parties in arriving at amicable resolution of that human problem. The Supreme Court then observed that the Courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration. Further, it was observed: "Before parting with the case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases". The Supreme Court then made these observations: "It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon'ble Minister for Law & Justice to take appropriate steps in the larger interest of the society".
5.9 Yet another factor that should be taken note of is the policy of law in laying stress on effecting conciliation between the warring couples. The provisions in Section 9 of the Family Courts Act, 1984 Section23 (2) of the Hindu Marriage Act, 1955 and Section 34(2) of the Special Marriage Act, 1954 impose an obligation on the court to take necessary steps to facilitate re-conciliation or amicable settlement.
5.10 It is worthy of note that in Andhra Pradesh, the State Legislature made an nd amendment to Section 320(2) of CrPC by inserting the following in the 2 Table.
Husband or relative of 498A The woman subjected to cruelty: husband of a woman Provided that a minimum period of subjecting her to cruelty three months shall elapse from the date of request or application for compromise before a Court and the Court can accept a request for compounding an offence under Section 498A of the Indian Penal Code provided none of the parties withdraw the case in the intervening period.
The observations made by the High Court in various cases were taken into account while making this amendment. The amendment came into force on 1.8.2003. Our recommendation is substantially on the same lines.
5.11 The overwhelming views reflected in the responses received by the Law Commission and the inputs the Commission has got in the course of 56 deliberations with the members of District and Subordinate Judiciary, the members of the Bar and the law students is yet another reason persuading us to recommend the amendment of law to make the offence under 498A compoundable with the permission of Court. The list of respondents from whom views have been received by the Commission is at Annexure 1-B. An analysis of such views touching on the point of compoundability is furnished at Annexure 1-A. The Consultation Paper-cum-Questionnaire on various aspects of Section 498-A published by the Commission is attached hereto as Annexure-2
5.12 At the Conference with judicial officers including lady officers, there was almost unanimous opinion in favour of making the offence compoundable. The lady lawyers who were present at the Conferences held in Visakhapatnam, Chennai and Aurangabad did not oppose the move. At a recent Conference held with about 35 Judicial Officers of various ranks at Delhi Judicial Academy, there was unanimity on the point of compoundability. However, some Judges expressed reservation about allowing 3 months gestation period for passing a final order of compounding under Section 320(2) Cr PC. It was suggested that there should be some flexibility in this regard and the 3 months' period need not be strictly adhered to especially where there is a package of settlement concerning civil disputes as well. Keeping this suggestion in view, the Commission has provided that in the interests of justice, the Magistrate can pass orders within a lesser time.
5.13 The Law Commission is therefore of the considered view that the offence under Section 498A IPC should be made compoundable with the permission of the Court. Accordingly, in Table-2 forming part of Section 320(2) of the Code of Criminal Procedure, the following shall be inserted after the entry referring to Section 494 and before the entry relating to Section 500:
Husband or relative of husband of a 498A The woman subjected to woman subjecting her to cruelty cruelty.
Sub-section (2A) shall be added to Section 320 CrPC, as set out in paragraph 5.6, page 17 supra.57
Annexure - III [refer para 10.1 of the Report] List of persons, organizations and officials who responded to the questionnaire A LIST OF INDIVIDUALS - RESPONDED TO THE QUESTIONANNAIRE ON SECTION 498A IPC S/Shri/Ms
1. Ms.Swati Goyal, Ahmedabad
2. Neeraj Gupta, Delhi
3. Vivek Srivastav, email@example.com
4. Sateesh K. Mishra, Delhi
5. Kalpak shah, Ahmedabad
6. Samir Jha, firstname.lastname@example.org
7. Kharak Mehra, Nainital
8. Saurabh Grover, email@example.com
9. Komal Singh, New Delhi
10. Kaushalraj Bhatt, Ahmedabad
11. Alka Shah, Ahmedabad
12. Saumil Shah, Ahmedabad
13. Trilok Shah, Ahmedabad
14. Alpak Shah, Ahmedabad
15. Bhavna Shah Ahmedabad
16. Kaushal Kishor & 27 other residents of Visakhapatnam.
17. iamamit, firstname.lastname@example.org
18. Vishnuvardhana Velagala, email@example.com
19. Hari Om Sondhi, New Delhi
20. Kharak Singh Mehra, Nainital
21. Virag R. Dhulia, Bangalore
22. Ms Kumkum Vikas Sirpurkar, New Delhi
23. Gaurav Bandi, Indore.
24. Gaurav Sehravat, firstname.lastname@example.org
25. Ashish Mishra, Lucknow
26. Umang Gupta, Rampur, Balia
27. Avadesh Kumar Yadav, Nagpur
28. T.R. Padmaja, Secunderabad
29. T.C. Raghwan, Secunderabad
30. C. Shyam Sunder, Hyderabad
31. Ms. Shobha Devi, R. R Dt, Hyderabad
32. A Nageshwar Rao, Hyderabad
33. Praveen Chand, Hyderabad
34. R.B. Timma Ready, Hyderabad
35. A. Venu Gopal, kadapa, Hyderabad
36. Aditya, Hyderabad 58
37. B. Y Lal, Hyderabad
38. Subramaniyam Catari, Hyderabad
39. A Sai Kiran, Hyderabad
40. S. Jagannath, Bangalore
41. Prasad Chuilal, Pune
42. Biswadeep Paul, Pune
43. Avinash D. Gune, Pune
44. Damodar Varde, Indore
45. Kedar Ambedakar, Pune
46. Sandesh V. Chopdekar, Pune
47. Devkant Varde, Pune
48. Sanjeet Gupta, Pune
49. Cedric D'Souza, Pune
50. Amandeep Bhatia, Pune
51. Arjun Singh Rawat, Pune
52. N.K. Jain, Ujjain
53. Raj Kumar Jain, Ujjain
54. Shashidhar Rao, Hyderabad
55. Mohammed Hidayatullah, Hyderabad
56. Chandra Shekhar, Hyderabad.
57. P. Sugunavathi, Hyderabad
58. V. David, Hyderabad
59. Reddy Vidyadhar, R.R. District, Hyderabad.
60. Eshwar Lal, R.R. District, Hyderabad.
61. A. Satyanarayana, Hyderabad
62. M.V. Rama Mohan, Hyderabad
63. K.V. Indira, Kerala
64. P. Raju, Bangalore
65. G.R. Reddy, Hyderabad
66. D.S. Nathaniel, Hyderabad
67. K. Sriram, Hyderabad
68. Rajneesh K.V. Hyderabad
69. M. V. Aditya, Hyderabad
70. P. Ranga Rao, Hyderabad
71. T.V. S. Ram Reddy, R.R. District, Hyderabad.
72. R. Rahul, Nizamabad
73. J.P. Sahu, Damoh
74. B. Vinod Kumar, Nizamabad
75. Ponviah Catari, Hyderabad
76. P.K. Acharya, Hyderabad
77. B. Yamuna, Chennai
78. J.Sarat Chandra, Anantpur
79. P.N. Rao, Amalapuram
80. K. Narasaiah, Hyderabad
81. K. Ramakrishna Rao, Rajamundry
82. D.N. Samuel Raj, Hyderabad 59
83. D.N. Lavaney, Hyderabad
84. V. Madhani, Secunderabad
85. R. Rajashekhar Reddy, Hyderabad
86. P. Srirama Murthy, Hyderabad
87. K.L. Swapana, Rajamundry
88. Gauri Sankar, Hyderabad
89. L. Narsinga Rao, Hyderabad
90. Sushil Kumara Acharya, Hyderabad
91. D.N. Kerupavasam, Hyderabad
92. T. Ramesh, Hyderabad
93. P. Satish Kumar, Hyderabad
94. T. Srinivas, Nalgouda
95. M. Satish Kiran, R.R. District, Hyderabad
96. Parthasarathi, Secunderabad
97. Saraswati Devi, Hyderabad
98. A. Rangabyha, Hyderabad
99. T. Annapurna, R.R. District, Hyderabad
100. Saah Ali Ahmed, Secunderabad
101. A.Sai Nath, Hyderabad
102. S. Manasa, Hyderabad
103. Sameer Baksi, Kharagpur, West Bengal
104. Rumi Dey, West Bengal
105. Bhanu Dey, Kharagpur, West Bengal
106. Suman Kr. Dey, Kharagpur, West Bengal
107. Tinni Gaur, Jabalpur
108. Arun Yadav, Jabalpur
109. T. Salgu, Ujjain
110. Ashish Gupta, Ujjain
111. T. M. Kamran, Pune
112. Pushpal Swarnkar, Durg
113. Col. H. Sharma, Noida
114. Rana Mukherjee, Advocate, Hony. Secy, Bar Association, High Court, Kolkata.
115. Nagarathna A., Asstt. Professor Law, NLSIU, Nagarbhavi, Bangalore.
116. Raj Ghosal, Thane (W), Maharashtra
117. Pankaj R. Sontakke, Kandivali (E), Maharashtra
118. Ashish Agarwal, Vikhroli (W), Maharashtra
119. Savio Fernandez, Thane (W), Maharashtra
120. Anand M. Jha, Kalyan (W), Maharashtra
121. Sachchidanand Singh Patel, Navi Mumbai, Maharashtra
122. Arghya Dutta, Nerul, Maharashtra
123. Debabrata Bhadra, Jamsedpur, Jharkhand
124. Vikas Jhunjhun wala, Worli, Maharashtra
125. Mukund Jhala, Singh Darwaza, Burdwan.West Bengal.
126. Sandip De, Dombivalli (E), Maharashtra 60
127. Anurag Joshi, Thane (W), Maharashtra
128. Gayatri Devi, Sagar Road, Hyderabad
129. Ramesh Lal, Shalimar Bagh, Delhi.
130. Priyank Prakh, Manchester, USA
131. Katri Ram Venkatesh, Ranga Reddy, Distt.Andhra Pradesh
132. Sarath Chandra P., Panjagutta, Hyderabad
133. Subba Rao P., Panjagutta Hyderabad
134. V. Kamalamma, Chandanagar, Hyderabad
135. Dr. P. Sudhir, Kakinada, Andhra Pradesh
136. S.N. Kumar, Hyderabad
137. K.V.N.S. Laxmi, Rajamundry
138. Manoj Kumar Sahu, Kanchanbagh, Hyderabad
139. K.S. Ram, Vijayanagar Colony, Hyderabad
140. M. Ram Babu, Janapriya Nagar Colony, Ranga Reddy Distt.
141. Ram Prakash Sharma, Rohini, New Delhi
142. Manju Yadav, Jabalpur
143. Teeja Yadav, Adhartal, Jabalpur
144. Chandra Yadav,Adhartal, Jabalpur
145. Santosh Vishvakarma, Adhartal, Jabalpur
146. Ashutosh Yadav,Adhartal, Jabalpur
147. Amitabh Bhattacharya, Wardha Road, Nagpur
148. Krishna R.K. V., email@example.com
149. Milap Choraria, Rohini, New Delhi
150. Anand Ballabh Lohani, Haldwani, Uttarakhand
151. Partha Sadhukhan, Hyderabad
152. Ramesh Kumar Jain, firstname.lastname@example.org
153. Namadevan N., email@example.com
154. Pronoy Ghose, Cachar, Assam
155. Sibi Thomas, Baruch, Gujarat
156. R.S. Sharma, Amity University, Uttar Pradesh
157. T. Gopala Krishna, Chichmagular
158. N.S. Mahesh, Bangalore, Karnataka
159. Shailaja G. Harinath, Bangalore
160. V.V. Lakshmanan, Ambattur, Chennai
161. Jayesh M. Poria
162. P. Rukma Chary, Bangalore
163. Deepak Kesari, Bangalore
164. Rajshekhar C.R., Bangalore.
165. N.H. Shiggaon, Vignan Nagar, Bangalore
166. Ajay M.U. Electronic City, Bangalore.
167. Vardhaman Nair, Bangalore.
168. Krishna Murthy, Bangalore
169. Sashidhar CM, Vinayaka Extn. Bangalore,
170. Narayan Kumar, Bangalore 61
171. Amjad F. Jamador, Belgam, Karnataka
172. Mohd. Arshad, Ranganath Colony, Bangalore.
173. B.A. Pathan, Hubli, Karnatka
174. Pronoy Kumar Ghosh, Cachar, Assam
175. N. N. Suiggaon, Vignan Nagar, Bangalore
176. Radhikanath Mallick, Kolkata, West Bengal
177. Maqsud Mujawar, firstname.lastname@example.org
178. Saroj Bala Dhawan, DLF Gurgaon, Haryana
179. Virag R. Dhulia, C.C. Raman Nagar, Bangalore.
180. Rahmatulla Sheriff, Ganga Nagar, Bangalore
181. Avinash Kumar, Main HSR Layout, Bangalore
182. Ramakrishna, email@example.com
183. Rajkumar, Rohtak.
184. Ritesh Dehia, firstname.lastname@example.org
185. Viresh Verma, email@example.com
186. Sudha Chouranga Chakrabatrti, Hoogly, West Bengal.
187. Mrs. Manisha C. Shinkar
188. Dr. Chandrakant K Shinkar
189. Shri Nagi Reddy Maddigapu (Senior Citizen), Retired A.P.
State Agro Ind Dev. Corpn Emp., Macherla, Dist Guntur
190. Shri Harish Dewan, New Delhi
191. Ms. Sudha Gouranga Chakrabarti, Khirkee Lane, Chinsurah, Hoogly, West Bengal
192. Dr. Mohan Singh Sath, 33, Westholme Gardens, Ruislip, Middlesex, UK (NRI)
193. Shri Hemant Kumar Verma, Sr. Lecturer Civil Engg Govt.
Polytechnic College, Ajmer Rajasthan *Names not mentioned.62
B. LIST OF ORGANIZATIONS / INSTITUTIONS - RESPONDED TO THE QUESTIONANNAIRE ON SECTION 498A IPC
1. Save India Harmony, (Shri B.K. Aggarwal, President), Vishakhapatnam.
2. SIFFMWB, (Shri S. Bhattacharjee) Kolkata
3. Vigilant Women Munch, (Secretary, Ms Suman Jain), Delhi.
4. National Family Harmony Society President, (Shri P.
Suresh), Karnataka. & 41 others
5. Mothers and Sisters Initiative -MASI, (Mrs. Shalini Sharma), General Secretary
6. Bharat Bachao Sangthan, (Shri Vineet Ruia), President, Kolkata
7. Pirito Purush Porishad, NGO, Kolkata
8. INSAAF, New Delhi.
9. All India Forgotten Women's Association, Hyderabad.
10. Members of Million Women Arrested Campaign (org), FBD, Haryana
11. The Kerala Federation of Women Lawyers, Secretary, (Ms.Aneetha AG), Kerala High Court Bldg, Kochi.
12. Lawyers Collective, (Ms. Indira Jaising), Jangpura Extn., New Delhi.
13. Rakshak Foundation, Shri Sachin Bansal, USA.
14. AWAG, Ila Pathak, Ahmedabad.
15. AIDWA, (Ms Kirti Singh), Legal Convenor, Advocate, Delhi
16. PLD (Partners for Law in Development), Madhu Mehra, Ex.
Director, New Delhi.
17. Bharat Vikas Parishad (Shri Raj Pal Singla, President), Chandigarh, Punjab.
18. Shri S.K. Dulara, All India Muslim Front, "Rahman Plaza"
YMCA Lane, Abids, Hyderabad
19. Md. Abdul Raoof, (retired Distict Judge, Hyderabad), All India Muslim Front, "Rahman Plaza" YMCA Lane, Abids, Hyderabad
20. Bimal N. Patel, Director, GLNU, Gandhinagar, Gujarat.
21. Prof. Ranbir Singh, Vice-Chancellor, National Law University, Delhi.
22. PMS Narayanan, National Commission for Minority, Khan Mkt, New Delhi
23. Janamithram Janakeeya Needi Vedi, Kerala State Committee, East Kottaparamba, Kozhikode
24. Justice Amarbir Singh Gill, Chairman, Punjab State Law Commission, Chandigarh.63
C. LIST OF GOVERNMENT OFFICIALS - RESPONDED TO THE QUESTIONANNAIRE ON SECTION 498A IPC
1. Prabhat Kumar Adhikari, Secretary (Law), A&N Admn., Port Blair.
2. *Pr. Secretary(Law-Legislation), Govt. of Himachal Pradesh.
3. L.M. Sangma, Secretary to Govt. of Meghalaya, Law Deptt.
4. B.K. Srivastava, Secretary in charge, Law Deptt., Govt. of West Bengal
5. Thejegu-U-Kire, Dy. Legal Remembrancer to Govt of Nagaland, Kohima.
6. Arindham Paul, DLR & Dy. Secretary, Law, Tripura.
7. *Home Secreatry, Chandigarh Administration
8. Shri Hari S. D. Shirodkar, Under Secretary, Law Department, Government of Goa.
9. Shri S. G. Marathe, Joint Secretary (Law), Govt. of Goa.
10. Shri Pramod Kamat, Law Secretary, Govt. of Goa
11. Shri D. V. K. Rao, Under Secretary, Ministry of Women and Child Development, GOI
12. Shri G. Rime, Deputy Secretary (Home), Department of Home and Inter State Border Affairs, Government of Arunachal Pradesh, Itanagar.
13. Shri Harishshankar Vaishya, Addl. Secretary, Government of Madhya Pradesh * Name not mentioned 64 D. LIST OF JUDICIAL OFFICIALS/ OTHER OFFICIALS - RESPONDED TO THE QUESTIONANNAIRE ON SECTION 498A IPC S/Shri/Ms
1. Chandigarh Judicial Academy, Dr. Virender Aggarwal, Director (Academics), Chandigarh.
2. M. M. Banerjee, Distt Judge, Birbhum, Suri.
3. Abhai Kumar, Registrar, High Court of M.P, Jabalpur.
(on behalf of Judicial officers, Training Institute)
4. Nungshitombi Athokpam, Dy. Legal Rememberancer, Govt.of Manipur.
5. Vijay Kumar Singh, Distt. & Sessions Judge, Jammu.
6. Shrikant D. Babaladi, Distt. Judge Member, Karnataka, Appellate Tribunal, Bangalore.
7. Bijender Kumar Singh, Distt. & Sessions Judge, Gopalgunj, Bihar.
8. R.K. Watel, Distt. & Session Judge, Reasi(J&K)
9. *Principal Distt. & Sessions Judge, Kishtwar
10. S. N. Kempagoudar, Distt. Judge, Member, Karnataka Appellate Tribunal, Bangalore.
11. Udayan Mukhopadhyay, Distt. & Sessions Judge, Purbi Medinapur.
12. *Distt. & Sessions Judge, Vaishali, Hajipur.
13. S.H. Mittalkod, Distt. & Sessions Judge, AIG-1, Govt. of Mizoram.
14. Ranjit Kumar Baig, Distt. Judge, Malda, West Bengal.
15. Sanjit Mazumdar, Addl. Distt. & Sessions Judge, Malda, West Bengal.
16. Anant Kumar Kapri, Addl. Distt. & Sessions Judge, Malda, West Bengal.
17. Kaushik Bhattacharaya, Addl. Distt. & Sessions Judge, Malda, West Bengal
18. Subodh Kumar Batabayal, Addl. Distt. & Sessions Judge, Malda, West Bengal
19. Shri Gopal Chandra Karmakar, Additional District and Sessions Judge, Malda, West Bengal.
20. Sanjay Mukhopadhyay, Addl. Distt. & Sessions Judge, Malda, West Bengal
21. Sibasis Sarkar, Addl. Distt. & Sessions Judge, Malda, West Bengal
22. Sabyasahi Chattoraj, Civil Judge (Sr. Divn.), Malda.
23. Ishan Chandra Das, Distt Judge, Burdwan.
24. L.K. Gaur, Special Judge, CBI-9, Tis Hazari Courts, Delhi.
25. M.K. Nagpal, ASJ/Special Judge, NDOS, South & South East Distt., Saket Courts, New Delhi.
26. Dr. Neera Bharihoke, ADJ-V, South Saket Court, New Delhi.65
27. Sanjeev Kumar, Metropolitan Magistrate, South-Saket Court, New Delhi.
28. Chetna Singh, Metropolitan Magistrate, South- Saket Court, New Delhi.
29. Sandeep Garg, Metropolitan Magistrate, South- Saket Court, New Delhi.
30. Anu Aggarwal, Civil Judge, South- Saket Court, New Delhi.
31. *District & Sessions Judge, Ambala
32. S.S. Lamba, District & Sessions Judge, Rohtak.
33. *District & Sessions Judge, Fatehbad.
34. *District & Sessions Judge, Rewari.
35. R.S. Virk, District & Sessions Judge, Gurgaon.
36. K. C. Sharma, District & Sessions Judge, Panipat.
37. *District & Sessions Judge, Kaithal.
38. * District & Sessions Judge, Jind.
39. Deepak Aggarwal, District & Sessions Judge, Jind.
40. D. N. Bhardwaj, District & Sessions Judge, Jind.
41. Dr. Chander Dass, Judicial Magistrate, Jind.
42. Praveen Kumar, Addl. Civil Judge (Sr. Divn.-cum-Sub-Divn.
Judicial Magistrate), Safidon.
43. Kumud Gungwani, Sub-Divn. Judicial Magistrate, Narwana.
44. Gurvinder Singh, Gill, District & Sessions Judge, Fatehgarh Sahib.
45. Raj Rahul Garg, District & Sessions Judge, Karnal.
46. *District & Sessions Judge, Bhiwani.
47. Narender Kumar, District Judge(Family Court), Bhiwani.
48. Rajinder Goel, Addl. District & Sessions Judge, Bhiwani.
49. Rajesh Kumar Bhankhar, Chief Judicial Magistrate, Bhiwani
50. Tarun Singal, Chief Judge (Jr.Divn.), Bhiwani.
51. Narender Singh, Chief Magistrate, Ist Class, Bhiwani.
52. Rajni Yadav, Addl. Civil Judge (Sr.Divn.) cum-Sub-
Divisional Judicial Magistrate, Loharu.
53. Balwant Singh, Civil Judge (Jr.Divn.) cum-Sub-Divisional Judicial Magistrate, 1st class, Bhiwani.
54. Narender Sharma, Sub-Divn. Judicial Magistrate, Charkhi Dadri.
55. A.S. Nayar, Civil Judge (Jr.Divn.), Charkhi Dadri.
56. Parvesh Singla, Civil Judge, Charkhi Dadri.
57. Kuldeep Jain, Addl. Distt. & Sessions Judge, Sonepat.
58. Sanjiv Kumar, Addl. Distt. & Sessions Judge, Sonepat.
59. Gulab Singh, Addl. Distt. & Sessions Judge, Sonepat.
60. Vivek Bharti, Addl. Distt. & Sessions Judge, Sonepat.
61. Ritu Garg, Addl. Distt. & Sessions Judge, Sonepat.
62. Lal Chand, Civil Judge (Sr.Divn.)-cum-ACJM, Sonepat.
63. Madhulika, C.J.(J.D.)-cum-JMIC, Sonepat.66
64. Ranjana Aggarwal, Addl. Civil.(Sr.Divn.), Sonepat.
65. Rajesh Kumar Yadav, C.J.(S.D.)-cum-JMIC, Sonepat.
66. Harish Gupta, Addl. Civil.(Sr.Divn.), Ganaur.
67. K.P. Singh, Addl. Civil.(Sr.Divn.), Gohana.
68. Sanjiv Jindal, Addl. Distt. & Sessions Judge, Narnaul.
69. Rajneesh Bansal, Addl. Distt. & Sessions Judge, Narnaul.
70. Sudhir Jiwan, Addl. Distt. & Sessions Judge, Fast Track Court, Narnaul.
71. Praveen Gupta, Addl. Chief Judicial Magistrate, Narnaul.
72. Chander Hass, Chief Judicial Magistrate, Narnaul.
73. *Distt. & Sessions Judge, Gurdaspur.
74. Rajesh Kumar Yadav, Addl. Distt. & Sessions Judge, C.J.(JD)-cum-JMIC, Sonepat.
75. * Distt. & Sessions Judge, Chandigarh.
76. *Distt. & Sessions Judge, Sirsa.
77. *Distt. & Sessions Judge, Jhajjar.
78. *Distt. & Sessions Judge, Faridabad.
79. *Distt. & Sessions Judge, Yamuna Nagar at Jagadhri.
80. *Distt. & Sessions Judge, Panchkula.
81. *Distt. & Sessions Judge, Pehowa.
82. Rajinder Pal Singh, Addl. Civil Judge (Sr. Divn.), Pehowa.
83. Gurcharan Singh Saran, Distt. & Sessions Judge, Shaheed Bhagat Singh Nagar.
84. *Distt. & Sessions Judge, Rupnagar.
85. Inderjit Singh, . Distt. & Sessions Judge, Jalandhar.
86. *Distt. & Sessions Judge, Ferozpur.
87. *Distt. & Sessions Judge, Kapurthala.
88. *Distt. & Sessions Judge, Mansa.
89. Amit Kumar Garg, Judicial Magistrate 1st Class, Kurushetra.
90. *Distt. & Sessions Judge, Kurushetra.
91. Manish Batra, Addl. Distt. & Sessions Judge, Kurushetra.
92. Harleen Sharma, Civil Judge (Jr. Divn), Kurushetra.
93. Sanjiv Kumar, Addl. Distt. & Sessions Judge, Kurushetra.
94. Sanjiv Arya, Judicial Magistrate 1st Class, Kurushetra.
95. Arun Kumar Singhal, Addl. Distt. & Sessions Judge, Kurushetra.
96. Jagjit Singh, Civil Judge (Sr. Divn), Kurushetra.
97. Amarinder Sharma, Civil Judge (Jr. Divn), Kurushetra.
98. Raj Gupta, Civil Judicial Judge, Kurushetra.
99. Anudeep Kaur Bhatti, Judicial Magistrate 1st Class, Kurushetra.
100. Akshdeep Mahajan, Judicial Magistrate 1st Class, Mohindergarh.
101. Narender Pal, Judicial Magistrate 1st Class, Narnaul.
102. *Distt. & Sessions Judge, Hisar.
103. *Distt. & Sessions Judge, Amritsar.67
104. *Distt. & Sessions Judge, Patiala.
105. *Distt. & Sessions Judge, Hoshiapur.
106. *Distt. & Sessions Judge, Ludhiana.
107. *Distt. & Sessions Judge, Bathinda.
108. *Distt. & Sessions Judge, Sri Muktsar Sahib.
109. Shri S. Sivaiah Naidu, Registrar General, Government of Andhra Pradesh.
110. Shri J.P. Gupta, Director (JOTRI) High Court of Madhya Pradesh, Jabalpur
111. *District & Sessions Judge, Kinnaur at Rampur Bushahr, H.P.
112. *District & Sessions Judge, Simaur at Nahan, H.P.
113. *District & Sessions Judge, Kangra at Dharmshala, H.P.
114. *District & Sessions Judge, Una, H.P.
115. *District & Sessions Judge, Hamirpur, H.P.
116. *District & Sessions Judge, Bilaspur, H.P.
117. *District & Sessions Judge, Solan, H.P.
118. *District & Sessions Judge, Kullu, H.P.
119. *District & Sessions Judge, Mandi, H.P.
120. *District & Sessions Judge, Chamba, H.P.
121. *Director, HP Judicial Academy Shimla, H.P.
From Registrar General of Karnataka High Court, Bangalore
122. Shri S. Harish Kumar, Principal Distt. & Sessions Judge, Chitradurga, Karnataka
123. Shri Shivashankar B. Amarannavar, District & Sessions Judge, Bagalkot. Karnataka
124. Shri Lakshman F. Malavalli, VI Addl. District & Sessions Judge, Mysore, Karnataka
125. Shri T.G. Channabasappa, Presiding Officer, Fast Track Court III. Mysore, Karnataka
126. Shri Narendra Kumar Gunaki, District & Sessions Judge, Udupi, Karnataka.
127. Dr. Shashikala MA Urankar, Principal District & Sessions Judge, Bidar, Karnataka
128. Shri John Micheal Cunha, Presiding officer, KSTAT, Bangalore, Karnataka
129. District & Sessions Court, Koppal, Karnataka
130. Shri Pradeep D. Waingakar, Chief Judge, Court of Small Causes, Bangalore.
131. Shri L. Subramanya, Principal District & Sessions Judge, Bijapur.
132. Shri S.V. Kulkarni Presiding Officer & Addl. & Sessions Judge (Ad hoc), Fast Track Court, Jamakhandi, Dist Bagalkot, Karnataka 68 From the Registrar General,High Court of Chattisgarh, Bilaspur
133. Shri R.C. S. Samant, Director, Chhattisgarh State Judicial Academy, Bilaspur
134. Shri Ashok Panda, District Judge, Durg, Chhattisgarh
135. Shri Ashok Kumar Sahu, Addl. District & Sessions Judge, Durg,
136. Shri Kamlesh Jagdalla, Additional Judge, First Class, Durg,
137. Shri Venseslas Toppo, Civil Judge, Class-II, Durg, Chhattisgarh
138. Ms. Chhaya Singh Bagel, Magistrate, First Class, Durg, Chhattisgarh
139. Smt. Swarnlata Toppo, Civil Judge, Class I, Durg, Chhattisgarh
140. Shri Srikant Srivas, Officer, First Class, Durg, Chhattisgarh
141. Shri Thomas Ekka, Civil Judge, class II, Durg, Chhattisgarh
142. Shri Anish Dube, Civil Judge, First Class, Rajhara, Chhattisgarh
143. Shri Vivek Kumar Tiwari, Judicial Magistrate First Class, District Balod, Chhattisgarh
144. Shri Deepak Kumar Kaushal, Judicial Magistrate First Class, Bametara, Dist. Durg, Chhattisgarh
145. Shri Praveen Kumar Pradhan, Judicial Magistrate First Class, Bametara, Dist. Durg, Chhattisgarh
146. Ms. Pushplata Markandey, Civil Judge Class-2, Durg, Chhattisgarh
147. Shri Jitendra Kumar Jain, Chief Judigical Magistrate, Durg, Chhattisgarh
148. Shri Santosh Thakur, Civil Judge Class-2, Durg, Chhattisgarh
149. Shri Manish Kumar Dubey, Civil Judge, Class-2, Durg, Chhattisgarh
150. Shri Abhishek Sharma, Judge class II, Durg, Chhattisgarh
151. Smt. Shyamvati Bharavi, Civil Judge, Class-1, Durg, Chhattisgarh
152. Ms. Mamta Shukla, Civil Judge, Class II, Durg, Chhattisgarh
153. Smt. Sushma Lakda, Civil Judge, Class II, Durg, Chhattisgarh
154. Shri Ashok Kumar Lal, Judicial Magistrate, Class-I, Durg, Chhattisgarh
155. Ms. Yashoda Kashyap, Civil Judge, class II, Durg, Chhattisgarh
156. Shri Jitender Thakur, Judicial Magistrate, Class-I, Durg, Chhattisgarh
157. Shri Sandeep Bakshi, District & Sessions Judge, Raipur, Chhattisgarh
158. Smt. Anita Jha, District and Sessions Judge, Bilaspur, Chhattisgarh 69
159. Shri C.B. Bajpai, District and Session Judge, Mahasamund, Chhattisgarh
160. Shri Anil Kumar Shukla, District and Session Judge, Dhamtari.
161. Shri Gautam Chourdiya, District and Sessions Judge, Janjgir, Champa, Chhattisgarh
162. * District and Sessions Judge, Sarguja, Ambikapur, Chhattisgarh
163. Smt. Vimla Singh Kapoor, District and Session Judge, Korea, Bakunthpur Chhattisgarh
164. Shri I.S. Ubojeba, District and Session Judge, Bastar, Jagadalpur, Chhattisgarh
165. Smt. Satyabhama Ajay Dubey, Chief Judicial Magistrate, Uttar Bastar, Kanker, Chhattisgarh
166. Shri N.S. Patel, Judicial Magistrate Class-I, Bhanupratap Pur, Kanker, Chhattisgarh
167. Shri J.S. Patel, Judicial Magistrate, Class-I, Dist N.B. Kanker, Chhattisgarh
168. Shri Shiv Mangal Pandey, District and Session Judge, Raigar, Chhattisgarh
169. Shri Prabhat Kumar Shastri, District & Sessions Judge, Jashpur, Chhattisgarh
170. Shri M.P. Singhal, District and Session Judge, Rajnadgaon, Chhattisgarh
171. *District and Sessions Judge, Korba, Chhattisgarh
172. Shri A.K. Bek, JFMC (South Bastar Dantewada), Chhattisgarh
173. Smt. Anita Dharia, Addl. JFM, Dantewada, Chhattisgarh
174. Shri Ramjivan Devgan, Civil Judge, class I, Bijapur, Chhattisgarh
175. Shri V.K. Chanakya, Chief Judicial Magistrate, South Bastar, Dantewada, Chhattisgarh
176. Smt. Yogita Vinay Wasnik, Judicial Magistrate, Class-I, South Bastar, Dantewada
177. Shri Yashwant Wasnik, Civil Judge, Class I, Sukma , Chhattisgarh
178. Shri Balram Kumar Devagan, District Magistrate, Class-II, Bacheli, Dantewada
179. Shri Amrit Kerkatta, Civil Judge, class ISouth Bastar District, Konta, Chhattisgarh
180. Smt. Anuradha Khare, District and Sessions Judge, Kabeerdham, Chhattisgarh From High Court of Jharkhand, Ranchi (Jharkhand)
181. Shri Anil Kumar Choudhary, District and Session Judge, Bokaro, Jharkhand 70
182. Md. Mushataque Ahmed, District and Session Judge, Chatra, Jharkhand
183. Shri Rajesh Kumar Dubey, District and Session Judge, Singhbhum at Chaibasa, Jharkhand
184. Shri Amitav Kumar Gupta, Principal District and Session Judge, Deoghar, Jharkhand
185. Shri Satyendra Kumar Singh, Principal District & Sessions Judge, Dhanbad, Jharkhand
186. *Principal District & Sessions Judge I/C, Dhumka, Jharkhand
187. Shri Shiv Narayan Singh, District & Sessions Judge, Garhwa, Jharkhand
188. Shri Pradeep Kumar Srivastava, District & Sessions Judge, Giridih, Jharkhand
189. Shri Kamesh Mishra, I/c District & Sessions Judge, Godda, Jharkhand
190. Shri Om Prakash Pandey, Principal District & Sessions Judge, Gumla, Jharkhand
191. Shri Deepak Kumar, Chief Judicial Magistrate, Jamshedpur, Jharkhand
192. Shri Brijesh Bhadur Singh, Secretary, DLSA, Civil Courts, Jamshedpur, Jharkhand
193. Shri S.S. Prasad, Sub-Divisional Judicial Magistrate, Jamshedpur, Jharkhand
194. Shri K.K. Srivastava, Registrar/Judge-in-Charge-cum-J.M., Class-I, Civil Court, Jamshedpur, , Jharkhand
195. Smt. Sanjeeta Srivastava, Judicial Magistrate 1st Class, Jamshedpur, Jharkhand
196. Smt. Kashika M. Prasad, Judicial Magistrate, 1st Class, Jamshedpur, Jharkhand
197. Shri Rakesh Kumar Singh, Judicial Magistrate 1st Class, Jamshedpur, Jharkhand
198. Shri Taufique Ahmed, Judicial Magistrate 1st Class, Jamshedpur, Jharkhand
199. Shri Arun Kumar Dubey, Judicial Magistrate, 1st Class, Jamshedpur, Jharkhand
200. Shri Anil Kumar Ray, Addl. Chief Judicial Magistrate, Jamshedpur, Jharkhand
201. Shri Dinesh Kumar, Judicial Magistrate 1s Class, Jamshedpur, Jharkhand
202. Shri Sachindra Nath Sinha, Judicial Magistrate, 1st Class, Jamshedpur, Jharkhand
203. Shri Suraj Prakash Thakur, Judicial Magistrate, 1st Class, Jamshedpur, Jharkhand
204. Shri Goutam Mahapatra, District and Sessions Judge, Jamtara 71
205. Shri Ajit Prasad Varma, Principal District & Sessions Judge, Koderma, Jharkhand
206. Shri Naveen Kumar, Principal District and Sessions Judge, Lohardaga, Jharkhand
207. Shri Vishnu Kant Sahay, Principal District & Sessions Judge, Palamau, Daltonganj, Jharkhand
208. Shri Binay Kumar Sahay, District and Sessions Judge, Pakur, Jharkhand
209. Shri Rajesh Kumar Vaish, District & Sessions Judge, Sahibganj, Jharkhand
210. Shri K.K. Srivastava, Principal District & Sessions Judge, Seraikella-Kharsawan, Jharkhand
211. Shri Narendra Kumar Srivastava, District & Sessions Judge, Simdega, Jharkhand
212. Shri Dhirendra Kumar Mishra, Admn. Officer, Judicial Academy Jharkahand, Ranchi From the High Court of Kerala
213. *Kasargod District Judge Kerala
214. *Wayanad District Judge, Kerala
215. Shri M.J. Sakthydharan, Addl. District Judge
216. *District and Sessions Judge, Manjeri, Kerala
217. Shri P.Ubaid, District Judge, Palakkad, Kerala
218. * Addl. District Judge, Alappuzha
219. Shri K. Ramakrishnan, District Judge, Thodupuzha
220. Shri N. Revi, District Judge, Pathanamthitta
221. Shri Thomas Pallickaparampil, District and Sessions Judge
222. * Chief Judicial Magistrate, Kasaragod, Kerala
223. Shri K.P. John, Chief Judicial Magistrate, Kozhikode, Kerala
224. Shri S. Satheesachandra Babu, Chief Judicial Magistrate, Manjeri, Kerala
225. * Chief Judicial Magistrate, Palakkad, Kerala
226. Shri P.S. Antony, Chief Judicial Magistrate, Thrissur, Kerala
227. Shri K. A Rajamohanan, Addl. Chief Judicial Magistrate, Ernakulam, Kerala
228. *Addl. Chief Judicial Magistrate(EO), Ernakulam, Kerala
229. Shri B. Vijayan, Chief Judicial Magistrate, Ernakulam, Kerala
230. Shri P.C. Paulachen, Chief Judicial Magistrate, Thodupuzha, Kerala
231. Ms. Indukala.S., Chief Judicial Magistrate, Pathanamthitta, Kerala
232. * Chief Judicial Magistrate, Kollam, Kerala List of Police officials replied to questionnaire
233. Renchamo P. Kikon, IPS, DIG, Nagaland, Kohima, 72
234. Mrinalini Srivastava, Supdt. Of Police, CID, Gangtok, Sikkim.
235. *Dy. SP(HQ), O/o DGP, Andaman & Nicobar Islands, Port Blair.
236. Shri Deepak Purohit, Supdt. Of Police, D&NH, Silvasa.
237. P.C. Lalchhuanawama, AIG-1 (for DGP), Govt. of Mizoram, Aizwal.
238. S. R. Dass, Asstt. I.G. Police(Pers), Govt. of Tripura, Agartala.
239. *Inspector General of Police (HQ), Bihar, Patna.
240. *Suptd. Of Police, Panaji, Goa.
241. *Addl. DG of Police (Crime), Punjab Chandigarh.
242. Shri Mangesh Kashyap, DCP (HQ), Office of the Commissioner of Police, Delhi
243. Shri T. Pachuau, IG of Police (Adm), Police Department, Government of Manipur.
244. Inspector General of Police, UT, Chandigarh *Names not mentioned.73
Annexure - III-A [refer para 10.1 of the Report] Broad Analysis of 474 replies to questionnaire on Section 498-A IPC regarding bailability Individuals* Organisations/ Government Officials/ Grand Institutions** Officials Judicial Total officials Bailable 83 14 3 100 200 Non-Bailable 4 5 8 109 126 Partial bailable 3 3 1 23 30 Repeal 74 0 1 1 76 No Comments 29 2 0 11 42 Total 193 24 13 244 474 * Two NRIs ** One organization from USA 74 Annexure - III-B [refer para 10.1 of the Report] Some of the responses received - Gist Sri Justice (Retd.) A.S. Gill, Chairman, Punjab State Law Commission expressed the view that there is no need to exercise the power of arrest of husband and his family members as it will result in breakdown of family. Recourse may be initially taken to dispute settlement mechanism such conciliation, mediation and counselling. The process of making effort for reconciliation is to be initiated even at the Police Station level by taking the aid of respectable persons named by both parties. The counselling mechanism under Domestic Violence Act can also be availed of by taking the assistance of professionally qualified counsellors appointed by State Government. The offence should be made bailable and compoundable. Bailability will not become in any way counter-productive. There is every need to sensitize the police in these matters and only an experienced officer should be entrusted with investigation. Compounding should be allowed subject to the permission of Court. The main reason for low conviction rate in the prosecution under Section 498-A is due to the fact that the allegations are exaggerated and beyond facts. Crime against Women Cell (CWC) should consist of persons who are well educated and experienced and have orientation to deal effectively with marital dispute.
National Commission for Minorities:
The issue can be best addressed by educating public through awareness programmes, also designed for minorities.
Members of National Commission for Minorities (Dr. H.T. Sangliana & Shri K.N. Daruwala) Police should have open and balanced approach. In all cases, straightway the case need not be registered. The decision to register a case may be taken by the Inspector level officer. Cases under 498A to be handled with utmost care. Only after satisfying with the genuineness of the complaint, an arrest should be made and not in a routine manner. Formal investigation can be kept in abeyance until the conciliation attempt is completed which should not be more than three weeks. Right mediators can be identified through NGO nets and retired officials from Police and judiciary. In Karnataka, women's help centres are available in the compound of Commissioner of Police. The fourth parties agreed to compromise after registration, Court's permission may be taken to compound. If no death is involved, it may be made bailable. Bail should be granted to the accused of his/her age is above 60 and if no direct involvement is established. Free legal aid cell will be useful to butt availability of such help when required is 75 doubtful. Long pendency of cases discourages the complainants from pursuing the matters further.
A detailed inquiry before arrest is necessary. However, the physical security of the women must be ensured. Arrest should be made normally with warrants. Police must record reasons for arrest without warrant. The offence could be made bailable though the bail has to be granted sparingly. There should be Police and anti-dowry cell in every district manned by trained woman police. The two processes, conciliation and investigation can proceed side by side. Offence could be made compoundable. Women do not have easy access to LSAs at grass root level. Measures to spread awareness should be taken though media and even it can be made part of school curricula.
Dr. Ranbir Singh, Vice-Chancellor (on behalf of NLU Delhi) - There is enough evidence to suggest that this Section has been misused in many ways. However, the misuse did not flow from the principle and intention on which this law is based. Robust effort should be made to implement the law so that the social objective of the law does not suffer. The misuse or false implications could be minimised by insisting on strict observance of the law of arrest as evolved in D.K. Basu case [(1997) 1 SCC 416)]. Secondly, the mandate of this law should be shifted from penal to restorative purpose. The recourse to mediation and conciliation in the first instance is the best idea. The arrest and other drastic legal measures should begin when all the options of restoration have failed. Registering the case is the legal obligation of the Police but they need not act in undue haste to effect the arrest. They should be guided by the spirit of Section 157 Cr. P.C. It would be worthwhile to divide the offence under Section 498-A in two categories depending on the gravity of the act of cruelty alleged. The offence can then be categorised as bailable or non- bailable. Offence of milder degree may be treated as family discord and be addressed with an approach of reconciliation. Awareness building programmes involving statutory bodies and NGOs should be organised. The officers manning women Police Stations must be given adequate training.
Dr. Bimal Patel, Director, GNLU, Gandhinagar, Gujarat - The Police should investigate the case and only on satisfaction of commission of offence under 498-A they should think of arrest. Making the offence bailable solves the problem to certain extent, though there are divergent views. The recourse can also be taken to Section 437 Cr. P.C. The offence can be made compoundable with the permission of Court. There should be better coordination between the LSA (Legal Services Authority) and Police. CWC should be under the control of Inspector level woman officer.76
Judicial Officers Training Institute, (JOTRI), Jabalpur -
1. Police has to register the criminal case on receiving FIR alleging commission of offence under Section 498A, but they should commence investigation keeping in view the two conditions contemplated under Section 157 Cr.PC.
Having regard to the nature of dispute, preliminary investigation should be done instead of straightway arresting the husband or other relatives named in the FIR. Immediate arrest of the husband and other close relatives will destroy the possibility of amicable resolution of dispute forever.
2. Police officer may commence investigation but before taking harsh measures by way of arrest etc., there should be a process of reconciliation with the help of counseling centres run by reputed NGOs or Govt. mediation centres. The concerned police officer should contact the DLSA or TLSA so that the authority may take steps to arrange the task of conciliation.
3. Offence should remain non-bailable with cautious approach of the police in making arrest. Misuse or over-implication cannot be a ground of making the offence bailable as this will defeat the objective of Section 498A.
4. Counseling/mediation procedures should be completed preferably within two months from the date of appearance of husband and wife. If the husband does not respond to the notice from family counseling centre or does not cooperate in the process of counseling, then only, the I.O. should proceed against the erring party according to law after receiving the report from the counselors/mediators. After amicable settlement, further investigation of the criminal case shall be stopped and the case be closed.
5. Police should not get involved in the actual process of conciliation. Family counseling courts should be established in every district with professional counselors. Mediation Centres are also helpful in resolving matrimonial disputes.
Director, H.P. Judicial Academy, Shimla - Make 498-A IPC gender neutral. 498-A should be removed from criminal case as it is a family matter and because of this many adverse consequences will follow. The filing of Police report after FIR must be completed in three months and court proceedings should be completed within one year thereafter.
Dr. Neera Bharihoke, ADJ, Delhi - No immediate arrest and it should be the last resort. Make it bailable and compoundable. There should be a supervisory body over CWC. LSA must spread awareness.77
Dr. Neera Gupta: Offences under Section 498A to be made non- cognizable, bailable. Persons who misuse the provision shall be penalized on completion of trial by the very same court. Separate provisions should be introduced for this purpose. Heavy fine of Rs.10 lakhs should be there. Persons who use women-protection laws for settling personal scores should be punished. The Section must be made gender neutral. Police should keep away from counselling.
Ministry of Women and Child Development, Government of India - Law according protection to women should be not be tinkered with; however, if some set procedures are followed, misuse can be curtailed. No arrest should be made on a mere allegation. In matrimonial disputes, it may not be necessary to immediately exercise the power of arrest in all cases. First recourse should to settlement mechanism. Counselling of parties should be done by professional qualified counsellors and police should empanel such persons Mahila desks to be set up at Police Stations and CAW Cells.
Lawyers Collective (Ms. Indira Jaisingh, Sr. Advocate, New Delhi) - Police should take action as per the existing laws and the procedure specified under Cr. P.C. Let it remain non-bailable and non-compoundable. Need to strengthen coordination between LSA and Police Station. Transparency of action and accountability can act as safeguards. Under-staffed and untrained CAW Cell cannot be helpful for these cases. Police force needed to be infused with basic human values and made sensitive to the constitutional ethos.
Ms. Nagaratna A., Asstt. Professor of Law, NLSIU, Bangalore - Offence should be made bailable and compoundable with the permission of Court. The Police soon after recording FIR must commence investigation and find out the existence of prima facie case. At no point Police shall have the power to arrest the accused without warrant of a Magistrate. Aged parents and sisters of the husband and other relatives must be spared from the ill-effects of unnecessary arrest. For the purpose of arrest, the offence should be made non-cognizable; but, for the purpose of investigation, it shall remain cognizable so that the I.O. can commence the investigation without waiting for permission by a Magistrate like in a non-cognizable offence. Secondly, the I.O. shall have the power to arrest only after fulfilling the conditions laid down under the amended Cr.P.C. CWCs shall be headed by well-qualified and trained women Inspectors. LSA can play a role for conciliation at pre-investigation and pre- trial stage.
AIDWA (Ms. Keerti Singh, Delhi) Police failure in taking timely action and in investigating the case on proper lines commented upon. Police should act according to the existing law and they do not need any directions to be cautious about these complaints as they are already taking long time even to register the FIR. If the woman complaints of physical violence, she should be immediately provided medical aid and the husband/in-laws should be stopped from committing further acts of violence, if necessary by arresting 78 him. Custodial interrogation could yield good results. The police has to help the victim woman by providing medical counseling and/or sending her to a shelter home. Crisis centres should be set up at the block and district level.
The seriousness of the crime should not be diluted by making it bailable and compoundable. Making it compoundable even with the permission of the Court will only result in the woman facing more pressure to compromise. In any event, if a compromise is reached, it gets recognition from the court to quash criminal proceedings. Reconciliation should not be thrust upon the woman. It would be wrong to first try to reconcile both the parties. Conciliation by a trained counselor should be resorted to only if it can be carried out without compromising the rights and position of the woman and only if the woman wants the return of dowry/streedhan to settle the matter.
It would not be advisable to entrust the investigations to the CWCs to the exclusion of regular Police Stations. The experience shows that CW Cells have not been positive. The number of Police Stations should be increased and personnel properly trained. CWCs should be headed by a lady DSP.
KFWL (President, Ms. K. Devi, Advocate), Kochi - It should remain non- bailable but shall be made compoundable with the permission of Court. Immediate arrest to be made only if offence is grave and affected the life, limb or health of the victim. There should be better coordination between LSA and Police. Crime against Women Cell in every district is desirable and should be headed by an IAS Officer. Nominees from local bodies, NGO, LSAs, mental health specialists apart from Police personnel should be the members thereof.
Rakshak Foundation (Shri Sachin Bansal, Santa Clara, USA) - Make it bailable and compoundable. No arrest before investigation. There should be better coordination between LSA and Police. Fast Track Courts to dispose of cases within a time bound schedule shall be opened.
Shri Priyank Parekh, Manchester, USA - Police to thoroughly investigate and not to arrest immediately, make it bailable and compoundable. CWC with well trained Police officer is desirable.
Dr. Virender Aggarwal, Director (Academics) Chandigarh - Make it non- bailable. It should remain non-bailable and non-compoundable. On receiving FIR, Police should make preliminary inquiry through relatives, neigbours etc. to find out the genuineness of the case before taking any action. LSA can decide whether to deal with case as criminal matter or in the realm of matrimonial civil law. CWC should only help the regular investigation agencies.
Shri Sivaiah Naidu, Registrar General, High Court of A.P. - Efforts for conciliation should be made on receipt of complaint. Immediate arrest should not be resorted to unless there is immediate danger to the victim or the husband is about to leave the jurisdiction of Indian Courts. Make the offence bailable and compoundable. Conciliation between the parties before effecting arrest is desirable and such conciliation can take place through the institution of LSA. The panel of mediators may consist of family welfare experts and trained counselors. LSAs in Taluka and District levels should play a more active role. There should be CAW Cell at District 79 Headquarters and it shall be headed by Dy.SP rank officer. The woman police deployed in this cell should have ample experience in life and proper awareness of laws related to woman.
Shri Abhay Kumar, Registrar, High Court of M.P., Jabalpur - No immediate arrest but register the case and start preliminary investigation. It shall remain non- bailable but compoundable. Family counseling centres should be opened all over the State.
Additional Chief Judl. Magistrate (E.O.), Ernakulam - Simultaneous with the registration of a case under Section 498-A, the Police should intimate the matter to the Protection Officer and cause an application to be filed before the Judl. Magistrate under the Domestic Violence Act so that the possibility of conciliation could be explored under judicial supervision. Arrest should be resorted to only after getting permission from the Magistrate. Do not make the offence bailable but make it compoundable. There should be regular meetings between LSA at the District level and SHO of Police Stations to take stock of the cases under 498-A.
Shri Thomas Pallickparampil, District Judge, Kerala - Do not make offence bailable but make it compoundable. Interrogation without arrest will be ideal situation. LSA may be assigned better and extensive role. Pre-litigation adalats ought to be organized. However, LSAs should not be constrained to coordinate with Police Stations. Need for specially trained senior woman police officer in CWC.
Shri Narender Kumar, District Judge (Family Courts)- Bhiwani - Make it bailable and compoundable. On receiving FIR, definite conclusion based on history of family life, root cause for lodging FIR should be arrived at. Proper training should be given to women police officials. To spread awareness by making it mandatory for TV channels to show protective penal provisions and civil rights available to women.
Shri R.R. Garg, District Judge, Karnal - No immediate arrest. First, matter to be sent to Conciliation Board or Counseling/mediation centres. It should remain non- bailable but compoundable. Need to spread awareness through print and electronic media. CWC to be headed by woman police officer of the rank of S.P.
Ms. Renhcamo P. Kikon, DIG of Police, Nagaland, Kohima - It should remain non-bailable but compoundable. Initially preliminary investigation and steps for reconciliation/mediation to be taken. If efforts fail, then the case to be registered under Section 498-A. Women Cell should be headed by Inspector rank lady officer. LSA should educate women and help them at grass root levels.
I. G. of Police - Union Territory, Chandigarh - Before registering the FIR, police should adopt a conciliation process with the help of competent counselors and should act as an observer in order to avoid unwarranted arrest. A time limit of 45 days is already being followed in this process. Offence to remain non-bailable but compoundable with the permission of Court. CWC should be established in every District with experienced and well trained women police officials.80
Shri Mangesh Kashyap, DCP (HQ), Delhi: Section 498(A) of IPC is certainly needed in its unadulterated form. Some procedural improvements could be made before registering FIR. In order to ensure that the facts are not exaggerated, the aggrieved woman should be asked to write an application after few sessions of interactions with a Counsellor. In case the complaint is found exaggerated benefit of doubt should be given. All possible efforts should be made through counselling and mediation to keep the woman and her children in the matrimonial home. Make it non-bailable. Case registered under 498A should be investigated by officer in the rank of Sub Inspector or above. They should be supervised regularly by an ACP once in a fortnight and DCP / ADCP once in a month.
Shri D.V.K. Rao, Under Secretary, Ministry of Women & Child Development, Delhi: On receipt of complaint, police should immediately register a FIR and conduct investigation into the matter. However, immediate arrest of husband should not be resorted to unless the alleged act of cruelty is prima facie very serious and calls for such arrest. Mediation and counseling process should be undertaken but the police should exercise restraint in making arrest of relatives. It should remain non-bailable and non-compoundable. Appropriate reconciliation effort as a first step should be undertaken. Mediation should be done by trained professionals and should be completed within two months. Legal Services Authorities should play a more extensive role in facilitating the conciliation. Crime against women cell should be established in every District and should consist of personnel who have been trained and sensitized to deal with cases of violence against women.
Shri T. Pachuau, IG of Police, Manipur - It should remain non-bailable but compoundable with the permission of the Court. Immediate arrest and custodial interrogation of husband and relatives should be avoided. Action to be taken to examine the victim and the accused soon after filing of FIR. Legal Services Authority (LSA) of the District or professional counselors will be ideally suited to process conciliation.81
Annexure - III-C [refer para 10.1 of the Report] REPLIES OF GOVERNMENT OFFICIALS TO THE QUESTIONANNAIRE ON SECTION 498A IPC
1. Secretary, Law Department, A&N Admn., Port Blair No immediate arrest without relevant evidence and efforts of reconciliation. Make it Non-bailable and compoundable. Better co- ordination between legal services and police is required for amicable settlement. CWC should handle the matter since beginning till its logical conclusion.
2. *Pr. Secretary(Law), Govt. of Himachal Pradesh No immediate arrest before making proper investigation and enquiry with relatives and neighbours. Make it bailable and compoundable. Better co-ordination between legal services and police is required for amicable settlement. No need of CWC.
3. Government of Meghalaya (Law Department) Make it bailable and compoundable.
4. Govt. of West Bengal (Law Department) No immediate arrest before making proper investigation and enquiry with relatives and neighbours. Make it non-bailable and compoundable. Better co-ordination between legal services and police is required for amicable settlement. CWC should be set up in every district comprising 82 of a District Judge, Distt. Social Welfare Officer and a Woman Social worker working in the specified field.
5. *Home Secretary, Chandigarh Administration No immediate arrest. After FIR initially preliminary investigation be done with relatives and neighbours. Make it Non-bailable and compoundable. LSA & police station should work for amicable reconciliation. CWC should have lady police officers who can handle domestic problems and pre-complaint counseling. They should be given training time to time about amendments in criminal laws and latest judgement of courts in such cases.
6. Law Department, Tripura.
7. Law Department, Govt. of Goa Make it compoundable with the permission of court. Make it bailable only for husband's relatives not staying with him. Otherwise, it should remain non-bailable.
The police, on receiving the complaint under section 498-A of IPC, is required to find out whether there is any prima facie case reflected in the complaint. No immediate arrest should be made but if alleged offence is a grave /en only immediate arrest and custodial interrogation of husband and his relatives named in the FIR could be made.83
Investigation is to be completed in three months. Efforts should be made by police first to send the parties for conciliation / settlement by the appropriate authority appointed under the "Protection of Women from Domestic Violence Act, 2005." The conciliators / mediators or professional counsellors (who may be part of NGOs) or the friends or elders known to both the marital parties; lady and men lawyers only who volunteer to act in such matters or District Legal Service Authority may be invited in conciliation/counseling process. There is need for coordination between LSAs and the Police Station. It is desirable to have a separate CWC in every District to deal exclusively with such cases. Women police Cell should be headed by a Lady DySP,
8. Department of Home and Inter State Border Affairs, Government of Arunachal Pradesh, Itanagar.
Before a regular case is registered, preliminary enquiry should be mandatory during which both sides should be heard and efforts be made for mediation and reconciliation. It should not be made bailable. Reconciliation through counseling should be the first step prior to registration of the case and a limit time of 90 days for the counseling process is recommended. Keep it non-bailable and non-compoundable. Investigation by CWC to the exclusion of the jurisdiction of the police station is not advisable.
9. Government of Madhya Pradesh Before arresting the accused, the first step is to mediate and opt for compromise as far as possible within one month's time. The mediators can include experienced, respectable citizen or even police officers. Make it bailable so that it cannot be misused. Try to compromise the matter 84 between the a aggrieved parties within one month with the help o Police Officer or respectable citizens i.e. NGOs.
10. Dy. Legal Remembrancer, Government of Nagaland. No comments as misuse allayed is not prevalent in this State.
11. Some replies of States (enclosed to Home Ministry's letter) Chattisgarh: shall be made bailable and compoundable with permission of Court.
Uttarakhand: Bailable, cognizable and compoundable NCT of Delhi - Compoundable with permission of Court. Preliminary enquiry to be made before registration of FOR.
Chandigarh Admn. Bailable, non-cognizable and compoundable.
Rajasthan - bailable and compoundable 85