No Arrest in 498A after FIR 2 Months Cooling off period
In a recent Judgement of Allahabad High Court the court has passed following guidelines regarding arrest in 498a cases
(i) No arrest or police action to nab the named accused persons shall be made after lodging
of the FIR or complaints without concluding the “Cooling-Period” which is two months
from the lodging of the FIR or the complaint. During this “Cooling-Period”, the matter
would be immediately referred to Family Welfare Committe(hereinafter referred to as
FWC) in the each district.
In the case of K. Subba Rao Vs. State of Telangana reported in 2018 (14)
SCC 452 , it was observed by Hon’ble the Apex Court that the Court should be
extremely careful and vigilant in proceeding against the distant relative of the
husband in the crimes pertaining to the dispute even in dowry deaths. All the
relatives of the husband should not be roped in on the basis of omnibus
allegations unless Specific Instances of the involvement in the crime as alleged
and surfaced during investigation with materials certainty. The sweeping and
general allegations are very frequent nowadays and if such people are put to
trial on such a casual and omnibus allegations, it would bound to lead the
disastreous result and unwarranted hardships to those persons.
In the instant case where her inlaws Mukesh Bansal and Manju
Bansal remained in the company of their warring son and daughterinlaw barely
for one year and four months and 25 days, left their company on 30.04.2017.
Since, thereafter, the affair is between son and the victim alone. In addition to
this, in their respective statement under section 161 Cr.P.C., a casual and
sweeping allegations were fastened against them also when they are not in
position to demand any additional dowry. It was further argued that victim priot
to 03.10.2018, has not made a single whisper regarding dowry relatedd
harassment and atrocities upon her by her parentinlaw. Then, the court has got
no reason to presume that the inlaws were also active participants in extending
dowry related harassment from the distance. It is urged by learned counsel for
the revisionist that obnoxious allegations are motivated one, driven by a sheer
retaliation without any iota of any sanctity to it.
Yet coming to another aspect of the issue which is disturbing and
mindboggling to the Court. After reading the FIR allegedly lodged by Ms.
Shivangi Bansal after 18 days of the incident, which is everabhorring, full of dirt
and filth. The graphical description portrayed by her in her FIR is deplorable to
be condemned in its strongest terms. The FIR is the place where the informant
gives the story mobilizing the State Machinery engaging in the commission of
cognizable offence. It is not soft porn literature where the graphical description
should be made. Hon’ble the Apex Court in its judgment in the case of Priti
Gupta Vs State of Jharkhand, 2010(71) SCC 667 has fastened the liability
upon the counsels, paragraph nos.30, 31, 32 and 33 are quoted hereinbelow :
“30. It is a matter of common experience that most of these complaints under section
498-A 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.
- The learned members of the Bar have enormous social responsibility and
obligation to ensure that the social fiber of family life is not ruined or demolished.
They must ensure that exaggerated versions of small incidents should not be reflected
in the criminal complaints. Majority of the complaints are filed either on their advice
or with their concurrence. The learned members of the Bar who belong to a noble
profession must maintain its noble traditions and should treat every complaint under
section 498-A as a basic human problem and must make serious endeavour to help the
parties in arriving at an amicable resolution of that human problem. They must
discharge their duties to the best of their abilities to ensure that social fiber, peace
and tranquility of the society remains intact. The members of the Bar should also
ensure that one complaint should not lead to multiple cases. - Unfortunately, at the time of filing of the complaint the implications and
consequences are not properly visualized by the complainant that such complaint can
lead to insurmountable harassment, agony and pain to the complainant, accused and
his close relations. - The ultimate object of justice is to find out the truth and punish the guilty and
protect the innocent. To find out the truth is a herculean task in majority of these
complaints. The tendency of implicating husband and all his immediate relations is
also not uncommon. At times, even after the conclusion of criminal trial, it is difficult
to ascertain the real truth. The courts have to be extremely careful and cautious in
dealing with these complaints and must take pragmatic realities into consideration
(22)
while dealing with matrimonial cases. 34. Before parting with this 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 criminal trials lead to immense sufferings for all concerned. Even ultimate
acquittal in the trial may also not be able to wipe out the deep scars of suffering of
ignominy. Unfortunately a large number of these complaints have not only flooded the
courts but also have led to enormous social unrest affecting peace, harmony and
happiness of the society.”
Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997
