F.I.R against Cruelty by Husband under Section 498- A IPC is mandatory?
![F.I.R against Cruelty by Husband under Section 498- A IPC is mandatory ?](https://lawwallet.in/wp-content/uploads/2021/08/1581600039498A.jpg)
Table of Contents:-
- Background of the case
- Issues Raised
- Statutory Provisions Involved
- Judgment Analysis
- Conclusion
- Case Laws:-
- Preeti Gupta v. State of Jharkhand [AIR 2010 SC 3363]
- Sushil Kumar Sharma v Union of India [AIR 2005 SC 3100]
- Kans Raj v State of Punjab [AIR 2000 SC 2324]
- The state of Haryana and others Vs. Bhajan Lal [1992 Cri. L.J. 527]
- Ramgopal v. State of M.P. [2010 SCALE 711]
- Rajeev Verma v. State of U.P. [2004 Cri. L.J. 2956]
Re: In The Matter of Matrimonial vs State of U.P. & Ors. [Criminal Misc. Writ Petition No. 3322/ 2010]
Background of the case
There was an executive hearing on 8th August 2011, where Ms. Leena Jauhari (Home Secretary of U.P. Government Lucknow); Smt. Poonam Sikand (Additional L.R.); Tanuja Srivastava [L.G. (Public Grievances)], Ms. G. Sridevi (Sect. U.P. State Legal Services Authority) Sri Ashok Mehta (Organizing Secretary, Allahabad High Court, Mediation & Conciliation Centre); Sri Pankaj Naqvi and Sister Sheeba Jose Advocates on behalf of the intervenor ‘Sahyog’ appeared before the court.
On 10th August 2011, an affidavit was filed on behalf of the Director-General of Police. On 12th August 2011, another affidavit has been filed on behalf of Special Secretary Home, U.P. An application was also moved by the intervenor ‘Sahyog’.
The court appreciates the contribution of the parties and stated that whenever the allegations made are not very raved then in such cases in order to save families and children and the institution of marriage efforts were first made to reconcile the parties and their matrimonial disputes by the way of mediation before taking any step for prosecuting the offenders.
Issues Raised
- Whether registration of F.I.R. under section 498- A I.P.C; Section 406 I.P.C is mandatory by the victim or family members as specified under section 198- A Crpc?
- Whether arrest of husband and his family members is necessary after lodging of the F.I.R.?
- Whether there is a distinction between the cases where the arrest is mandatory and where mediation can be taken as the first step?
- What is an appropriate place where mediation can be conducted?
- Who should be the members of the mediation cell in the district?
- Should offences under Section 498- A of the Indian Penal Code, 1860 be made compoundable?
Statutory Provisions Involved
- Section 498- A of the Indian Penal Code, 1860
“ Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means:
(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical) of the woman; or
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
- Section 406 of the Indian Penal Code, 1860
“Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
- Section 198- A of the Code of Criminal Procedure, 1973
“No Court shall take cognizance of an Offence Punishable section 498A of the Indian Penal Code except upon a police report of facts which constitute such offence or Upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.”
Judgment Analysis
The court referred to the judgment of Preeti Gupta v. State of Jharkhand [AIR 2010 SC 3363] where the learned members of the Bar reminded of the noble profession and their responsibility to preserve social fiber of family life by desisting all in-laws and their relation with an accused person under Section 498- A of the I.P.C. and from filing exaggerated reports. Further, the court relied upon the ruling of Sushil Kumar Sharma v Union of India [AIR 2005 SC 3100] in which it was held that Section 498-A of the I.P.C. would not be misused by the complainants who have oblique motives as this will create a ‘New Legal Terrorism’.
Further the put reliance upon the ruling of Kans Raj v State of Punjab [AIR 2000 SC 2324] in which it has been held that there are rapid increases in the offences under Section 498- A I.P.C. and 304 B of the I.P.C. in order to involve as many of in-laws in the case by the victim wife.
Para 5 of the law report states that “In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”
With respect to issues the court answered the following:
- Whether registration of F.I.R. under section 498- A I.P.C; Section 406 I.P.C is mandatory by the victim or family members as specified under section 198- A Crpc?
Section 154 Crpc mandate for a police officer that whenever an oral complaint is given which is related to a cognizable offence in such cases the police is bound to reduce it into writing and make an entry in a general diary and in no way police can denied to lodge the F.I.R. in such cases. The court referred to the case of the State of Haryana and others Vs. Bhajan Lal [1992 Cri. L.J. 527] in which it was held that as per the provision of Section 154 (1) Crpc the police is under statutory obligation t firstly register the F.I.R and then to proceed with the investigation even if police is in the doubt regarding the commission of the crime.
- Whether arrest of husband and his family members is necessary after lodging of the F.I.R.?
Section 154 of the code of criminal procedure, 1973 only empowers the police to lodge an F.I.R. whenever information is given related to the cognizable offence and there is no pre-condition mentioned to firstly examine the genuineness of the offence. In this contrast section 41 (1) (B) Crpc which deals with the power of police to arrest without warrant requires the existence of ‘reasonable complaint’; ‘credible information’ or ‘reasonable suspicion’ as a pre-condition for making the arrest.
Two provisos of section 157 Crpc talks about except when the investigation and consequent arrest may not be necessary:-
- When the information is received against any person by name and the case is not of serious nature than in such a case officer in charge of the police station need not proceed or depute his/ her subordinate to proceed to make an investigation on the spot and the police officer need to mention the reason in his/ her report;
- If in the opinion of the officer in charge of the police station that there is no sufficient ground to investigate the case then also he/ she shall not investigate and it is the duty of the officer in charge of the police station to inform the informant about his/ her decision.
Therefore, if it appears to a police officer in case of a matrimonial dispute that it just ego clashes between the spouses or it is not of such a grave nature in such cases the police officer refuse to make an investigation.
- Whether there is a distinction between the cases where the arrest is mandatory and where mediation can be taken as the first step?
The arrest is necessary when it seems like the husband and his relatives have caused grave danger to the life of the victim wife or she becomes the victim of the domestic violence repeatedly or there is any other case of exceptional cruelty.
In all other cases, firstly reconciliation should be attempted by directing the complainant wife and her natal family. The advantage of not immediate arrest where there are no injuries on the aggrieved wife.
- What is an appropriate place where mediation can be conducted?
The officials learned government advocates, as well as other lawyers, recommended that the mediation Centre should not be a police station because the police officials lack mediation skills. The secretary of legal services authority had suggested that now mediation and conciliation Centre has been established in all district courts and the mediation session will be carried out over there only.
The I.G. (Public Grievances) suggested that a time frame must be laid down for mediation proceedings because if such a limit is not set and the proceedings will unduly prolonged the delay can act as a shield for the accused.
- Who should be the members of the mediation cell in the district?
The mediation cell has been headed by the secretary of the district legal service authority, other panel or retainer lawyer appointed by the District Legal Service Authority, and all other lawyers who volunteer to free services (especially female lawyers should also be made members of the mediation cell). Three or four social workers (preferably female) should also be made members of the cell. A female police officer must be of the rank of Deputy Superintendent of Police must be an ex officio member of the cell.
- Should offences under Section 498- A of the Indian Penal Code, 1860 be made compoundable?
The court had received feedbacks from the subordinate court regarding section 498- A of I.P.C. The court recommended that unless the offence under section 498 A is made compoundable the benefit of medication cannot be ascertained in its true sense.
The court relied upon the judgment of Ramgopal v. State of M.P. [2010 SCALE 711] in which it was observed that section 498A IPC is of private nature and it should be compoundable if the parties decide to settle their disputes.
The court also relied upon the decision of the Rajeev Verma v. State of U.P. [2004 Cri. L.J. 2956] in which it was held that the law commission had suggested that the State Government of U.P. make the offence under section 498- A IPC compoundable.
Conclusion
The court held that the authorities need to submit their report within 4 weeks. All the secretaries of the District Legal Authorities need to submit a report in case of minor matters settled through mediation under section 498 A IPC. The state government was also directed to submit their report relating to the offences under section 498 A which were to be made compoundable with the permission of the court.