Landmark Judgment Allahabad High Court on 498A of IPC

CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010

Petitioner :- Sanjeev Kumar & Others

Respondent :- State Of U.P. & Others

Petitioner Counsel :- P.N. Gangwar

Respondent Counsel :- Govt. Advocate

Hon’ble Amar Saran,J.

Hon’ble Shyam Shankar Tiwari,J.

Heard learned counsel for the petitioners and learned Additional Government Advocate.

Admit.

Issue to the respondent No. 4.

The respondent No. 4 and learned AGA on behalf of the other respondents are allowed 4 weeks time to file counter-affidavits, rejoinder affidavit may be filed within a week thereafter.

It is contended that there was a matrimonial dispute between the parties and because of that a criminal case has been lodged at case crime No. 18 of 2010, under sections 498-A, 323, 504, 506 IPC & sections 3/4 Dowry Prohibition Act, Police Station Mahila Thana Sadar, district Bareilly. It was further submitted that as the petitioner No. 1 had contracted a love marriage with respondent No. 4, Anju Kumari and both the petitioner No. 1 and the respondent No. 4 were employed, hence the demand for dowry is not believable. It is also mentioned in paragraph7 of the writ petition that this is a case where Smt. Anju Kumari has not received any injury and there is no medical examination report of Anju on record.

In view of the aforesaid submissions, we are of the view that an attempt should first be made for reconciliation of the dispute between the parties, by referring the matter to the Mediation and Conciliation Centre of the Allahabad High Court.

It needs to be observed however, that in a very large number of cases the accused are rushing to this Court for relief, where complaints or FIRs under sections 498 A IPC or under section ? Dowry Prohibition Act or allied provisions are filed against the husbands and their family members. The matters are frequently referred to the mediation centre of the High Court, and stays of arrest are granted by the writ Courts, and in a number of others cases where complaints or charge sheets have been filed, orders staying proceedings are being passed in applications under section 482 Cr.P.C. or in Criminal Revisions, or transfer applications, resulting in further clogging of the already overcrowded dockets of pending cases in the High Court, which cause other genuine and important matters to be put on the back burner.

Largely these stays are granted by this Court because of the view that offences against married women need to be handled rationally even for protecting the interests of the complainant wife or her relatives, as too ready arrests, jail or prosecutions in these matters may foreclose the option of reconciliation between the parties at a subsequent stage. Immediate arrests or prosecution of the accused in these matters without any attempt to settle the matter by mediation may in fact cause the aggrieved wife to be a double victim. First, as a result of the ill treatment or violence that she has initially suffered at the hands of her husband or in-laws, and later where she has no other means of livelihood or support, she may be dragged into a protracted litigation to secure the conviction of her husband and in-laws. In the latter case there may be situations where for one or the other reason she is unable to attend the trial court on the dates fixed, where she may run the risk of warrants being issued against her for compelling her attendance. Even after securing the conviction of her husband or in-laws her problems of livelihood would remain, as usually wives are not economically independent, and her natal family, if any, may not be able or willing to support her for the rest of her life.

The other reason why this Court often interferes in such cases, is that when the atmosphere, between the wife and her natal family and the husband and his family has become sour, there is a tendency to rope in as many of the relations of the husband as possible, even though they may not be directly involved in the crime. This negative tendency was adversely commented upon by the Supreme Court in Kansraj v. State of Punjab, AIR 2000 SC 2324. Such en masse involvement of a large number of family members takes place because in the aftermath of the incident, tempers are extremely high, the parties do not have a cool mind, and the aggrieved party at that stage only wants to seek recompense, by sending the other party to jail. It is only with the passage of some time usually with the help of mediators, that wisdom may dawn and the complaining party may consider the advisability of exploring other options such as either to resolve their differences and to come together, or to mutually agree to part on acceptable terms.

We may note that under sections 41 and 157 of the Code of Criminal Procedure and also under the U.P. Police Regulations, it is not mandatory to arrest the accused in each case where an FIR is lodged, and the police has been given a discretion in the matter. In Joginder Kumar v. State of U.P., AIR 1994 SC 1349 in paragraph 24 this aspect has been emphasized as follows: “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 Station without permission would do.”

We therefore direct:

1.That when a complainant approaches the police station or the concerned lower courts, with complaints about harassment, or violence against the wife, by the husband and in-laws, except in cases of extremely grave nature or in cases of serious violence and injuries, and where there are possibilities of repeated violence against the wife, the Courts or the police should first make an effort to try and bring about a reconciliation between the parties, by directing the parties to appear before the mediation centres in the Courts, wherever they exist, or to the mediation cells with the police. If reconciliation is not possible, and the matter appears to be serious, or there is a probability of recurrence of violence, only in those cases should the police take immediate steps for arresting the accused in pursuance of the FIR.

2.On the next date we would also like a report from the DGP, U.P. and the Principal Secretary (Home), U.P. as to whether any G.O.s or directions on the lines suggested above for fulfillment of the objective for inititial attempt at mediation in such matrimonial matters exist, and they shall also consider the advisability of issuing such directions. In their response the said authorities should also point out the difficulties in sending the cases for mediation especially with regard to adequacy of the number of mediation centres in the Courts or attached to the police or mahila thanas, or the absence of trained mediators or any other difficulties, so that this Court may issue appropriate directions for addressing the problems indicated.

3.We would also like a response from the Organizing Secretary of the Mediation Centre of the Allahabad about their experiences and suggestions in this regard, and whether they are prepared to give training to the mediating agencies before the lower courts or connected with the police at the local levels for bringing about successful mediation of such disputes.

4.We would also like a report from the Principal Secretary (Home), U.P. and the Registrar General of the High Court about the number of Courts and districts where such facilities for mediation exist, as also the courts where no such mediation facilities exist, and the steps they propose to take to meet the short fall in mediation centres, trained mediators and other infrastructure etc. needed.

5.This Court would also welcome intervention by NGOs who are working on problems of women, to give suggestions as to how these problems may be addressed.

6.We would also like suggestions from the U.P. State Legal Services Authority as to how they can help facilitate mediation between the parties in such matrimonial matters, and other suggestions in this regard on the next listing.

7.We also direct that this matter of trying to bring about reconciliation and mediation in matters relating to domestic violence involving offences under section 498 A IPC, ? D.P. Act and other allied sections, which are not of such a grave nature be also taken by the monitoring cells consisting of the District Judges, D.M.s SSP/ SP and others in their monthly meetings and the success in tackling the problem, and the difficulties if any, be communicated to this Court after the meetings, which may be placed in a tabular form before us by the registry.

8.The present matter is however, with the consent of the petitioners, referred to the Mediation Centre, Allahabad High Court.

9.The petitioner Sanjeev Kumar should deposit Rs. 10,000/- within three weeks from today in the account head of Registrar General, Mediation and Conciliation Centre, High Court, Allahabad.

10.The Registry shall send a notice through the Chief Judicial Magistrate concerned within ten days thereafter, after the petitioner furnishes proof of having made the aforesaid deposit, fixing 9.4.2010 for appearance of the wife, opposite party No. 4, before the Mediation Centre at Allahabad High Court and it shall be mentioned in the notice that three fourth of the above mentioned deposited amount shall be paid to her towards expenses when she appears before the Centre.

11.On that date, and on any future dates as directed by the Centre, the husband-petitioner No. 1 and the wife aforesaid will appear before the Centre.

12.The Registry will send information of this order to the Mediation Centre by 15 th March.

13.The Centre shall submit a report to this Court within one month from the date of appearance of the parties before it.

14.Till the next date of listing, the arrest of the petitioners in the aforesaid case shall remain stayed, provided the petitioners submit the receipt of the aforesaid deposit before the concerned Court and co-operate in the mediation proceedings.

15.In case of any default by the husband in making the appearance before the Mediation Centre on the dates fixed or making the aforesaid payments as directed above, the relief granted by this order shall not apply.

16.List this case again on 10.5.2010 along with the report of the Mediation Centre, and the other returns as directed above.

17.In case there is any default by the petitioners as above, the Mediation Centre should immediately communicate this fact to the office and office will list the case within a week so that steps may be taken for vacation of the stay granted to the petitioners.

Copy of this order shall not be issued unless steps are taken

Order Date :- 26.2.2010 Ishrat

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