THE NEW FACE OF 498A
Hon’ble Supreme Court came up with new guidelines on 498A cases and the same has been talk of the town since morning. Different people are commenting on it in a different manner. Few media houses have even run flash news like “Husbands to be immediately arrested in case of 498A”. Such views are erroneous.
Let’s look at the background of the judgment titled “Social Action Forum for Manav Adhikar and another Versus Union of India and others”. The NGO challenged various judgments of Supreme Court and High Courts by writ of mandamus which had diluted the provisions of 498A. It wanted a uniform policy of registration of FIR, arrest and bail in cases of Section 498A IPC in consonance with the law of the land, i.e. to register FIR on complaint of cruelty and harassment by married women as per the provisions of IPC and CrPC. The said writ was filed in 2015, and in between Rajesh Sharma judgment was pronounced by another bench of SC.
Another NGO in the mean time filed another Writ Petition challenging the Rajesh Sharma judgment and wanted women NGOs to be part of Family Welfare Committee. The same however did not pan out for the NGO as it wanted to percolate the Family Welfare Committees through the women NGOs. Today, the Apex Court bench headed by CJI Deepak Misra abolished the Family Welfare Committees in entirety.
Ever since the passage of 498A there has been frequent judgments to curb the misuse of 498A. The current judgment starts from that only. The chief justice writing on behalf of the complete bench said in the very beginning and decried that despite the misuse being vertically rising, the legislature has failed to bring the remedial protective provisions to curb the misuse. Thereafter it starts a discussion on the previous judgment along with other judgments passed by the Apex Court in curbing misuse of various provisions related to arrest and also that of 498A.
After detailed deliberations the Supreme Court Supreme Court abolished the Family Welfare Committees and tweaked the other directions given in Rajesh Sharma judgment. Now let me try to explain what it means to men fighting 498A and other related cases.
- Family Welfare Committees have been abolished and hence all directions and rules related to the same stands nullified. Now onwards, no report is required from FWC before or not affecting arrest of any person. Arrest procedures and powers remain with the Investigating officer as vested by the Code of Criminal Procedure in 41 CrPC and 41A CrPC.
It is my interpretation that the said powers u/s 41A CrPC have historically been misused to the hilt the police officials. So much so that a lot of bribe is extorted by them for the same. Many people see it as a revert to Arnesh Kumar judgment and they interpret it as a ban on arrest. In this article I had previously argued that Arnesh Kumar judgment never stopped arrests in 498A. It just directed police to comply with provisions of 41A CrPC, which is to give reasons of arrest and bring the same to magistrate who would record reasons for further police or judicial custody of the accused. Moreover, the nature of matrimonial disputes have changed over time.
However, the judgment is silent on what happens to any decisions taken by Family Welfare Committees while it existed. My interpretation is that all such decisions have become non est and are now open to challenge. However, as a saving grace it does not say that immediate FIR has to be lodged. A preliminary inquiry however is not precluded. The same shall continue at CAW Cell (Crime Against Women Cell) or Mahila Thana as the case may be.
- The judgment says that the cases related to Section 498A shall be investigated only by a competent designated officer of the area and the same shall be under superintendence of senior officer so that investigating officer does not misuse or abuse his powers of arrest.
- It takes away the powers from District and Sessions Judge to close the criminal proceedings in the event of any settlement. The quashing, if any, can be done by High Courts in accordance to the powers vested u/s 482 CrPC.
- It has retained the provisions which relates to conditions of pre-arrest or Anticipatory Bail as it is. This means that return of Dowry articles can not be a pre-condition for bail. However, it has also retained the catch of the Rajesh Sharma Judgment. If the husband is not paying maintenance as ordered by any court, the bail may be dismissed.
- The Non-Resident Indians facing 498A cases can also breathe easy. The Apex Court in its wisdom has kept the provision that Red Corner Notice or Passport impounding shall not e done in a routine matter. That means if the NRI is responding to summons and is appearing as and when directed, his privilege to travel for work or stay shall not be curtailed.
- The judgment doesn’t interfere with clubbing of cases, though it says that the clause pertaining to the same i.e. 19(vi) of the Rajesh Sharma judgment would be applicable upon application to competent court.
- The biggest drawback of this judgment is that exemptions from personal presence which was routinely given by trial courts specially for the old and aged members staying far, under the weight of Rajesh Sharma judgment, is now subject to discretion of the trial court. An application u/s 205 CrPC or u/s 317 CrPC has to be moved and the court would decide upon the stage at which exemption is sought. This unfortunately would mean that long travels would continue for most of the family members.
To sum up, the NGOs which applied these writs have not got what they desired. Neither the Apex Court ordered immediate registration of FIRs nor it allowed NGOs to percolate into the Family Welfare Committees. The judgment, however, took away few relaxations which were accorded to husband and their family members. Arrests are now at the discretion of Investigating Officers and his superiors, notwithstanding that they would have to follow the conditions of 41A CrPC. Exemptions from personal presence is also at the discretion of the magistrate. Today, the Apex Court lost an opportunity to make this a ‘truly’ Landmark Judgment by not following its own footsteps like it did in regards to RTI ACT, Sec 66 A of IT Act, Vishakha Guideline and lately by reading down Sec 377 IPC.
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