498a Misuse Supreme court recent Judgement

The judgement of Rajesh sharma Vs. state of Uttar pradesh had a detailed guidelines to check the 498a misuse by married women against the husband and relatives of the husband. Even the apex court has recognized the misuse of 498a a tool to harass innocent people so the Supreme Court went ahead and formed a committee called family welfare committee in all the district courts to examine the veracity of complaint/FIR and the committee had to come back with a report whether the allegation are true or not and also give an opinion to arrest or not based on which the police would act in 498a cases.

The formation of committee was relief to many innocent people and there was a drop in arrests in the cases of 498a IPC.

The recent Judgement of Apex Court in Social Action Forum for Manav Adhikar Vs. Union of India

The Hon’ble supreme court scrapped the family welfare committee and held that the safeguard mechanisms can only be incorporated either by legislature or under existing mechanisms.

What will happen after the Judgement?

On Arrest

Now since family welfare committees are not there so police is the only body left to take an opinion of arrest of those accused in 498a.

Now police first has to comply with 41A CrPC and give a notice to the accused to appear

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In Arnesh Kumar vs State Of Bihar & Anr

We are of the opinion that if the provisions of Section 41Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

All the State Governments to instruct its police officers not to automatically arrest when a case under

Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41Cr.PC;

Anticipatory Bail in 498a

The provision of pre arrest bail is open

  1. Return of dowry articles

As held in Vijender sharma v. state Anticpatory Bail was granted subject to the conditions that the petitioner will return all the gold/silver jewelry articles still in his possession to the complainant before the concerned SHO.  petitioner will deposit a sum of Rs.1 lakh additionally with the Registrar General of this Court in the name of the complainant, which amount shall be disbursed subject to the outcome of the trial of this case. The petitioner will join investigation as and when required and would not intimidate the witnesses.

 

2. By giving maintenance amount and returning jewelry

As held in Dr. Sunil Kumar V. State

With consent of parties, afore-noted applications are disposed of with the following directions:

(a) Rajesh would replace all the cheques which he has issued in the name of Shalini Arya pursuant to orders passed by learned Metropolitan Magistrate in the proceedings under Protection of Women against Domestic Violence Act, 2005 by issuing cheques in the name of ‘Shalini’. This would be done within a week from today.

(b) Photocopies of the medical treatment of Baby Bhavishika would be handed over to Rajesh. Rajesh would be entitled to consult a reputed cardiologist and future medical treatment of Baby Bhavishika would be borne by Rajesh.

(c) Future medical of Shalini pertaining to treatment for tuberculosis by her would be reimbursed by Rajesh on the bills being furnished by Shalini to Rajesh.

(d) Rajesh would continue to pay to Shalini Rs. 10,000/- per month or such other amount as may be directed to be paid by the learned Metropolitan Magistrate in the proceedings under Protection of Women against Domestic Violence Act, 2005 by means of a cheque payable in the name of ‘Shalini’.

(e) Rajesh would facilitate visit by the I.O. in company of Shalini to his house for opening the almirah in which cloths and jewellery of Shalini are stated to be kept. Shalini would be permitted to take possession of the same after an inventory is prepared.

(f) All the petitioners would cooperate with the I.O. in the conduct of investigation.

On compliance of afore-noted consent directions, in the event of arrest, petitioners would be released on bail by the I.O. on their furnishing a personal bond in the sum of Rs. 10,000/- each with one surety each in the like amount to the satisfaction of I.O.

18. It is made clear to Rajesh Arya that any violation of the terms of the consent directions would render liable to be withdrawn the benefit of the present order.

3. Bail without any condition of return of dowry items

In Vishal Arora V. state 

In my opinion, the petitioner cannot be denied bail on the ground that dowry and jewellery of the complainant has not been returned so far. The learned counsel appearing on behalf of the petitioner has taken a stand that the entire dowry and jewellery has already been returned to her. There seems to be a dispute between the parties on this aspect. If her dowry and jewellery is not returned, then she may take proper proceedings before the competent Court for return of dowry and jewellery as per law.

In the facts and circumstances of the case stated above, it is ordered that the petitioner may be released on bail in the event of his arrest on his furnishing bail bonds in the sum of Rs.20,000/- with one surety in the like amount to the satisfaction of the arresting officer. Thepetitioner is directed that he shall participate in the investigation as and when called by the Investigating Officer. In the event the petitioner fails to participate in the investigation, then the State will be at liberty to apply for cancellation of his bail.

4. Bail as contents of FIR are vague

In the present case of Pavitra Uraon And Ors. vs State Of Chhattisgarh, if we consider the contents of the FIR, lodged by the complainant on 24-1-2007, it shows that she was being treated with cruelty by the applicant on account of demand of dowry. However, the specifications regarding dowry are vague and general pertaining to the items etc.

5. Complainant residing in matrimonial home

 Proceedings under Section 498A/406/34 IPC are not to be converted into recovery proceedings. However, it is the desire of a Court to try and ensure that matrimonial disputes are resolved. Attempts were made in the present case in this direction, but unfortunately have failed.

Considering the fact that the complainant is still residing in the matrimonial house, but in a separate portion thereof and the fact that she and her children are otherwise being provided with maintenance by the petitioner No. 1, I am inclined to admit the petitioners to anticipatory bail as prayed for. It has to be additionally noted that the petitioners have cooperated with the investigating officer during enquiry. Since 6.2.2004 petitioners are under interim protection.

Petition stands disposed of with the direction that in the event of arrest, on petitioners furnishing a personal bond in the sum of Rs. 5,000 with one surety in the like amount to the satisfaction of the Arresting Officer, petitioner would be released on bail

Conclusion

Generally the bail in matrimonial proceedings are easy but may come with stringent conditions. the Anticipatory bail in cases of 498a/406 are granted easily these days and conditions depends on facts of each case.

Quashing of 498a

Quash 498a -Vague allegations in Fir The case of 498a can be quashed when there are vague the allegations in the FIR. A FIR is a first document on which whole investigation and chargesheet is based.

 

 

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A FIR is bible for getting evidence and eventually to secure conviction of an accused based on the evidence, therefore a FIR must contain all the material facts related to an offence. It also must contain all the specific ingredient needed for satisfying an offence and material through which investigation may proceed. if a FIR misses material facts then it is a vague FIR which can be quashed by invoking the jurisdiction of 482 CrPC. Image result for 498a quash Some believe that if a FIR satisfies the ingredients of an offence it is not the case for being fit for quashing but this preposition is untrue under the light of the judgement In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings. (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. so lack of evidence is another ground for quashing proceedings. A FIR containing quite vague, general and sweeping, specifying no instances of criminal conduct can be quashed even if the FIR constitutes and satisfy the ingredients of an offence. It is held in Vishalbhai Niranjanbhai Adatiya … vs State Of Gujarat & on 9 December 2015 It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

Quashing of 498a happens in very rare occasions may be 5% cases are eligible for quash 498a. The 498a case can be quashed on the basis of vague allegations on relatives.

But mostly on the quashing of 498a happens on the basis of Jurisdiction.

Test if FIR can be quashed on basis of Jurisdiction

To quash 498a the most common test is if the FIR is filed in parental home and she alleges allegations in the matrimonial home. Then there are good chances to quash 498a based on such facts.

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Judgments to quash 498a on grounds of Jurisdiction

Territorial Jurisdiction under section 177 Crpc

In Manish Ratan V state of MP 2007 (1) SCC 262 Merely wife was forced to leave home to Datia from Jabalpur, the courts at Datia will have no jurisdiction. In this case, the case was transferred to Datia from Jabalpur.

In Manoj Kumar Sharma Vs, State of Chattisgarh 2016 (9)SCC 1

The offense of dowry death happened in Ambala but Fir was lodged in Chattisgarh there was no allegation of continuing cruelty, therefore, registration of FIR in Durg was without jurisdiction and hence it was quashed.

In Dharam Raj V state of UP.2006(2) ADJ 403

The allegation of dowry demand and harassment as per the FIR alleged to have happened in Tadwa, Jaunpur Sultan pur and Gorakhpur the courts in Lucknow was held to have no Jurisdiction.

Hiralal Agarwal Vs. State of Orissa 2006 Cri LH 3809

Complainant stayed in Talcher and FIR was lodged in Bargarh demand of dowry alleged to have taken place in Talcher and no allegation in FIR to suggest that the demand of dowry took place in Bargarh the proceedings pending in Bargarh court was quashed.

Debabrata Saha V. State of Jharkhand.

The demand of dowry and harassment was confined to matrimonial home at Kolkata and no demand of dowry took place in Dhanbad. Acceptance of dowry articles in Dhanbad also does not constitute an offense or part of the cause of action.

Regards,

Advocate Nitish Banka

(Practicing in Supreme Court of India)

[email protected]