SOCIAL ACTION FORUM FOR MANAV ADHIKAR AND ANOTHER versus UNION OF INDIA MINISTRY OF LAW AND JUSTICE AND OTHERS

SOCIAL ACTION FORUM FOR MANAVADHIKAR AND ANOTHER

UNION OF INDIA MINISTRY OF LAW

AND JUSTICE AND OTHERS(Writ Petition (Civil) No.73 of 2015)SEPTEMBER 14, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR AND

DR. D.Y. CHANDRACHUD, JJ.]

Penal Code, 1860 – s.498-A – Matrimonial disputes –Directions issued in Rajesh Sharma and Others v. State of U.P. andAnother, [2017] 9 SCR 529 – Modification in – Amicus Curiaecontended that directions issued in the Rajesh Sharma casepertaining to s.498-A of IPC required reconsideration – Held: 1)Earlier, the Court had directed constitution of the Family WelfareCommittees by the District Legal Services Authorities and prescribedthe duties of the Committees – The Committees were empowered tosuggest report failing which no arrest could be made – Directionspertaining to constitution of Committee and conferment of poweron the said Committee is impermissible as power conferred arebeyond the Code of Criminal Procedure – 2) The Court had alsoissued direction that in cases where settlement is reached, the Districtand Sessions Judges were entrusted with power to dispose of theproceeding – This direction relating to settlement modified to theextent that if settlement is arrived at, the parties can approachHigh Court u/s.482 of Cr.P.C. – 3) The Court had directed thatcomplaints u/s.498-A and other connected offences may beinvestigated only by designated investigating officer of the area– This direction has to be read in conjunction with the directionthat Director General of Police of each State is to ensure thatinvestigating officers are imparted training with regard to theprinciples laid down by Supreme Court relating to arrest – 4) Further,the Court had left it open to the District Judge or designatedjudicial officer to club all connected cases between the parties andhad also exempted family members, particularly outstation members,from personal appearance – These directions modified to the extent

Athat an application has to be filed either u/s.205 Cr.P.C. or s.317Cr.P.C. depending upon the stage at which exemption is sought – 5)Nothing erroneous in the earlier directions relating to bail andimpounding of passports or issuance of Red corner notice – Codeof Criminal Procedure, 1973 – ss. 41, 41-A, 205, 317 and 482.

BDisposing of the matters, the Court

HELD: 1. The core issue is whether the Court in RajeshSharma could, by the method of interpretation, have issued suchdirections. On perusal of the directions, it is found that theCourt has directed constitution of the Family Welfare CommitteesCby the District Legal Services Authorities and prescribed theduties of the Committees. The prescription of duties of theCommittees and further action therefor, are beyond the Codeand the same does not really flow from any provision of the Code.There can be no denial that there has to be just, fair andreasonable working of provision. The legislature in its wisdomDhas made the offence under Section 498-A Indian Penal Code,1860 cognizable and non-bailable. The fault lies with theinvestigating agency which sometimes jumps into action withoutapplication of mind. The directions issued in Arnesh Kumar arein consonance with the provisions contained in Section 41 CrPCEand Section 41-A CrPC. Similarly, the guidelines stated in JoginderKumar and D.K. Basu are within the framework of the Code andthe power of superintendence of the authorities in the hierarchicalsystem of the investigating agency. The purpose has been to seethat the investigating agency does not abuse the power and arrestpeople at its whim and fancy. [Para 33] [46-A-D]F2. In Rajesh Sharma, there is introduction of third agencywhich has nothing to do with the Code and that apart, theCommittees have been empowered to suggest report failingwhich no arrest can be made. The directions to settle case afterit is registered is not correct expression of law. criminalGproceeding which is not compundable can be quashed by the HighCourt under Section 482 CrPC. When settlement takes place,then both the parties can file petition under Section 482 CrPCand the High Court, considering the bonafide of the petition, mayquash the same. The power rests with the High Court.H[Para 34][46-E-F]

3. The directions pertaining to constitution of aCommittee and conferment of power on the said Committee iserroneous in light of the statutory provisions and Supreme Courtjudgments. However, the directions pertaining to Red CornerNotice, clubbing of cases and postulating that recovery ofdisputed dowry items may not by itself be ground for denial ofbail would stand on different footing. They are protective innature and do not sound discordant note with the Code. Whenan application for bail is entertained, proper conditions have tobe imposed but recovery of disputed dowry items may not byitself be ground while rejecting an application for grant of bailunder Section 498-A IPC. That cannot be considered at that stage.Therefore, there is nothing erroneous in directions relating toapplication for bail and issuance of Red Corner notice. So far asdirections allowing the District Judge or designated seniorjudicial officer nominated by the District Judge to club allconnected cases between the parties arising out of matrimonialdisputes and exemption of family members from personalappearance is concerned, an application has to be filed eitherunder Section 205 CrPC or Section 317 CrPC depending uponthe stage at which the exemption is sought. [Para 35] [48-A-C]

4. While declaring the directions pertaining to FamilyWelfare Committee and its constitution by the District LegalServices Authority and the power conferred on the Committee isimpermissible. Therefore, it is appropriate to direct that theinvestigating officers be careful and be guided by the principlesstated in Joginder Kumar , D.K. Basu , Lalita Kumari and ArneshKumar. It will also be appropriate to direct the Director Generalof Police of each State to ensure that investigating officers whoare in charge of investigation of cases of offences under Section498-A IPC should be imparted rigorous training with regard tothe principles stated by this Court relating to arrest. Thus,direction issued in Rajesh Sharma relating to investigatingofficers investigating complaints u/s.498-A of IPC shall be readin conjunction with the direction given above.[Paras 38 and 39] [49-D-G]

5. Insofar as direction relating to settlement is concerned,it is modified to the extent that if settlement is arrived at, the

ABC

Aparties can approach the High Court under Section 482 of theCode of Criminal Procedure and the High Court, keeping in viewthe law laid down in Gian Singh, shall dispose of the same.[Para 40] [50-A]

Joginder Kumar v. State of U.P and Others (1994) 4BSCC 260 ; D.K. Basu v. State of W.B. (1997) 1 SCC416 : [1996] 10 Suppl. SCR 284 ;Lalita Kumari v.Government of Uttar Pradesh and Others (2014) 2SCC 1 :[2013] 14 SCR 713 ; Arnesh Kumar v. Stateof Bihar and Another (2014) 8 SCC 273 : [2014] 8SCR 128 – relied on.

Sushil Kumar Sharma v. Union of India and Others(2005) 6 SCC 281 ; B.S. Joshi and Others v. State ofHaryana and Another (2003) 4 SCC 675 ; Brij Lal v.Prem Chand and Another [1989] 2 SCR 612 ; RajeshSharma and Others v. State of U.P. and Another2017 (8) SCALE 313 ; [2017] 9 SCR 529 :NilabatiBehera v. State of Orissa and Others (1993) 2 SCC746 : [1993] 2 SCR 581; State of M.P. v. ShyamsunderTrivedi and Others (1995) 4 SCC 262 : [1995] 1 Suppl.SCR 44 ; Lakshmi Kant Pandey v. Union of India(1984) 2 SCC 244 : [1984] 2 SCR 795 ; Vishaka andOthers v. State of Rajasthan and Others (1997) 6 SCC241 : [1997] 3 Suppl. SCR 404 ; Common Cause (ARegistered Society) v. Union of India and Another(2018) 5 SCC 1 ; Suresh Seth v. Commissioner, IndoreMunicipal Corporation and Others (2005) 13 SCC 287; Census Commissioner and Others v. R. Krishnamurthy(2015) 2 SCC 796 : [2014] 11 SCR 463 ;N.D. Jayaland Another v. Union of India and Others (2004) 9SCC 362 : [2003] 3 Suppl. SCR 152 ; Rustom CavasjeeCooper v. Union of India (1970) 1 SCC 248 : [1970] 3SCR 530 ; Premium Granites and Another v. State ofT.N. and Others (1994) 2 SCC 691 : [1994] 1 SCR579 ; M.P. Oil Extraction and Another v. State of M.P.and Others (1997) 7 SCC 592 :[1997] 1 Suppl. SCR671 ; State of Madhya Pradesh v. Narmada BachaoAndolan and Another (2011) 7 SCC 639 : [2011] 6

SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOIMINISTRY OF LAW AND JUSTICE

SCR 443 : State of Punjab and Others v. Ram LubhayaBagga and Others (1998) 4 SCC 117 : [1998] 1 SCR1120 – referred to.

Case Law Reference

ACIVIL ORIGINAL/APPELLATE JURISDICTION: Writ Petition(Civil) No.73 of 2015.

Under Article 32 of the Constitution of India

WITH

BCriminal Appeal No. 1265 of 2017

Writ Petition (Criminal) No. 156 of 2017.

P. S. Narsimha, ASG, K. Radhakrishnan, Ms. Indira Jaising,Sr. Advs., Ms. Indu Malhotra, V. Shekhar, Sr. Advs(ACs), Shivang Dubey,Ms.Tanvi R. Nayar, Prashant Singh, Gaurav Aggarwal, Ms. DeeptiCGupta, Advs(ACs.), Ms. Charu Walikhanna, Dharmender Pal Singh,Mrs. Vipin Gupta, Mahesh Srivastava, P. N. Puri, Vaibhav ManuSrivastava, Pankaj Srivastava, Alok Singh, Ms. Surabhi Lata, AbhishekSingh, Sandeep S. Deshmukh, Ms. Manju Jetley, Raghavendra Tripathi,Mukul Singh, Ms. Arunima Dwivedi, R. R. Rajesh, Gautam Sharma,Ms. Sunita Sharma, Balram Das, B. Krishna Prasad, M. K. Maroria,DShadan Farasat, Ms. Aanchal Singh, Ms. Rudrakshi Deo, Pramod Dayal,Rajesh Kumar, Roopenshu Pratap Singh, Dr. Alok Sharma, NareshKumar, Gurmeet Singh Makker, Gaurav Agrawal, Shashank Shekhar,Umang Shankar, Namit Saxsena, Ms. Sindhu T. P., R. Beniwal, BineeshK., Arushi Singh, P. V. Dinesh, Ms. Kirti Singh, Ms. Pallavi Langar,EMs. Nupur Agrawal, Advs. for the appearing parties.

The Judgment of the Court was delivered by

DIPAK MISRA, CJI. 1.Law, especially the criminal law, intendsto control, if not altogether remove, the malady that gets into the spine ofthe society and gradually corrodes the marrows of the vertebrae of aFlarge section of the society. situation arises and the legislature,expressing its concern and responsibility, adds new penal provisionwith the intention to achieve the requisite result. When sensitive legalprovision is brought into the statute book, the victims of the crime feeladequately safe, and if the said provision pertains to matrimonial sphere,both the parties, namely, wife and husband or any one from the side ofGthe husband is booked for the offence and both the sides play the victimcard. The accused persons, while asserting as victims, exposit graveconcern and the situation of harassment is built with enormous anxietyand accentuated vigour. It is propounded in court of law that the penalprovision is abused to an unimaginable extent, for in cruel, ruthless and

totally revengeful manner, the young, old and relatives residing at distantplaces having no involvement with the incident, if any, are roped in.Thus, the abuse of the penal provision has vertically risen. When theimplementation of law is abused by the law enforcing agency, thelegislature introduces protective provision as regards arrest. Needlessto say, the courts have ample power to grant pre-arrest bail or popularlycalled anticipatory bail and even to quash the criminal proceeding totallyto stabilize the lawful balance because no court of law remotely conceivesof war between the two sexes. The courts remain constantly alive tothe situation that though no war takes place, yet neither anger nor vendettaof the aggrieved section should take an advantage of the legal provisionand harass the other side with influence or espousing the principle ofsympathy. The role of the law enforcing agency or the prosecuting agencyis sometimes coloured with superlative empathy being totally obliviousof the sensation to make maladroit efforts to compete with the game ofsuper sensitivity. Such situation brings in social disaster that has thepotentiality to vertically divide the society. The sense of sensitivity andthe study of social phenomenon are required to be understood withobjectivity. In such situation, it is obligatory on the part of the legislatureto bring in protective adjective law and the duty of the constitutionalcourts to perceive and scrutinize the protective measure so that the socialmenace is curbed. We are, in the instant matters, focussing on Section498-A of the Indian Penal Code, 1860 (for short, ‘the IPC’).

2. Section 498-A was brought into the statute book in the year1983. The objects and reasons for introducing Section 498-A IPC canbe gathered from the Statement of Objects and Reasons of CriminalLaw (Second Amendment) Act of 1983 and read as under :-

“The increasing number of Dowry Deaths is matter of seriousconcern. The extent of evil has been commented upon by theJoint Committee of the Houses constituted to examine theworking of Dowry Prohibition Act, 1961. Cases of cruelty by thehusband and the relatives of the husband which culminate insuicide by, or murder of the hapless woman concerned, constituteonly small fraction of the cases involving such cruelty. It is,therefore proposed to amend the Indian Penal Code, Code ofCriminal Procedure and the Indian Evidence Act suitably to dealeffectively not only with cases of Dowry Death but also crueltyto married woman by their in laws.

ABCDE

2. The following are the changes that are proposed to be made:-

(i) The Indian Penal Code is proposed to be amended to makecruelty to woman by her husband or any relative of her husbandpunishable with an imprisonment for term which may extend tothree years and also with fine. Willful conduct of such nature bythe husband or any other relative of the husband as is likely todrive the woman to commit suicide or cause grave physical ormental injury to her, and harassment of woman by her husband orby any relative of her husband with view to coercing her or anyof her relatives to meet any unlawful demand for property wouldbe punishable as cruelty, the offence will cognizable ifinformation relating to the commission of the offence is given tothe officer in charge of Police Station by the victim of theoffence or relative of the victim of the offence or, in theabsence of any such relative, by any public servant authorized inthis behalf by the State Government. It is also being provided thatno court shall take cognizance of the offence except upon aPolice Report or complaint made by the victim of the offence orby her father, mother, brother, sister or by her father’s or mother’sbrother or sister or with the leave of the court by any other personrelated to her by blood, marriage or adoption (vide Clauses 2, 5and 6 of the Bill.)

(ii) Provision is being made for inquest by Executive Magistratesand for postmortem in all cases where woman has, within sevenyears of her marriage, committed suicide or died in circumstancesraising reasonable suspicion that some other person hascommitted an offence. Post-mortem is also being provided for inall cases where married woman has died within seven years ofher marriage and relative of such woman has made request inthis behalf (vide Clauses 3 and 4 of the Bill)

(iii)The Indian evidence Act, 1872 is being amended to providethat where woman has committed suicide within period ofseven years from date of her marriage and it is shown that herhusband or any relative of her husband and subjected her tocruelty, the court may presume that such suicide had beenabetted by her husband or by such relative of her husband (videClause 7 of the Bill)

3. The Bill seeks to achieve the above objectives.”

SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOIMINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]

3. Regarding the constitutionality of Section 498-A IPC, inSushilKumar Sharma v. Union of India and others[1],it was held by theSupreme Court:-

“Provision of S. 498A of Penal Code is not unconstitutional andultra vires. Mere possibility of abuse of provision of law doesnot per se invalidate legislation. Hence plea that S. 498A has nolegal or constitutional foundation is not tenable. The object of theprovisions is prevention of the dowry menace. But many instanceshave come to light where the complaints are not bona fide andhave been filed with oblique motive. In such cases acquittal of theaccused does not in all cases wipe out the ignominy sufferedduring and prior to trial. Sometimes adverse media coverage addsto the misery. The question, therefore, is what remedial measurescan be taken to prevent abuse of the well-intentioned provision.Merely because the provision is constitutional and intra vires, doesnot give licence to unscrupulous persons to wreck personalvendetta or unleash harassment. It may, therefore, becomenecessary for the legislature to find out ways how the makers offrivolous complaints or allegations can be appropriately dealt with.Till then the Courts have to take care of the situation within theexisting frame-work.”

4. In B.S. Joshi and others v. State of Haryana and another[2],the Court observed:-

“There is no doubt that the object of introducing Chapter XX-Acontaining Section 498A in the Indian Penal Code was to preventthe torture to woman by her husband or by relatives of herhusband. Section 498A was added with view to punishing ahusband and his relatives who harass or torture the wife tocoerce her or her relatives to satisfy unlawful demands of dowry.The hyper-technical view would be counter productive and wouldact against interests of women and against the object for whichthis provision was added. There is eveiy likelihood that non-exercise of inherent power to quash the proceedings to meet theends of justice would prevent women from settling earlier. That isnot the object of Chapter XXA of Indian Penal Code.”

1 (2005) 6 SCC 281 : AIR 2005 SC 31002(2003) 4 SCC 675 : AIR 2003 SC 1386

EFG

A5. In Brij Lal v. Prem Chandand another[3], this Court ruledthus:-

“It would not be out of place for us to refer here to the addition ofSections 113-A and 113-B to the Indian Evidence Act andSections 498-A and 304-B to the Indian Penal Code bysubsequent amendments. Section 113-A Evidence Act and 498-AIndian Penal Code have been introduced in the respectiveenactments by the Criminal Law (Second amendment) Act, 1983(Act 46 of 1983) and Section 113-B of the Evidence Act and304-B Indian Penal Code have been introduced by Act No. 43 of1986. The degradation of society due to the pernicious system ofdowry and the unconscionable demands made by greedy andunscrupulous husbands and their parents and relatives resulting inan alarming number of suicidal and dowry deaths by women hasshocked the Legislative conscience to such an extent that theLegislature has deemed it necessary to provide additionalprovisions of law, procedural as well as substantive, to combatthe evil and has consequently introduced Sections 113-A and113-B in the Indian Evidence Act and Sections 498-A and 304-Bin the Indian Penal Code. By reason of Section 113-A, the Courtscan presume that the commission of suicide by woman hasbeen abetted by her husband or relation if two factors are presentviz. (1) that the woman had committed suicide within period ofseven years from her marriage, and (2) that the husband orrelation had subjected her to cruelty. We are referring to theseprovisions only to show that the Legislature has realised the needto provide for additional provisions in the Indian Penal Code andthe Indian Evidence Act to check the growing menace of dowrydeaths...”

6. Presently, to the factual score. The instant Petitions have beenpreferred under Article 32 of the Constitution of India seeking directionsto the respondents to create an enabling environment for married womensubjected to cruelty to make informed choices and to create uniformsystem of monitoring and systematically reviewing incidents of violenceagainst women under Section 498-A IPC including their prevention,investigation, prosecution and rehabilitation of the victims and theirchildren at the Central, State and District levels. That apart, prayer has

H3 (1989) 2 SCR 612

been made to issue writ of mandamus to the respondents for uniformpolicy of registration of FIR, arrest and bail in cases of Section 498-AIPC in consonance with the law of the land, i.e., to immediately registerFIR on complaint of cruelty and harassment by married women as perthe IPC.

7. It has been averred by the petitioners that hundreds of womenare being subjected to horrific acts of violence often in the guise ofdomestic abuse or to extract more money from the girl’s natal familydue to absence of any uniform system of monitoring and systematicreview of incidents of violence against married women which has led todilution of the legislative intent behind Section 498-A IPC. And, in thewake of ever increasing crimes leading to unnatural deaths of women inmarital homes, any dilution of Section 498-A IPC is not warranted.8. It has been contended that Section 498-A IPC, since itsintroduction, has increasingly been vilified and associated with theperception that it is misused by women who frequently use it as weaponagainst their in-laws. As per the petitioners, though there is generalcomplaint that Section 498-A IPC is subject to gross misuse, yet there isno concrete data to indicate how frequently the provision has beenmisused. Further, the Court, by whittling down the stringency of Section498-A IPC, is proceeding on an erroneous premise that there is misuseof the said provision, whereas in fact misuse by itself cannot be groundto repeal penal provision or take away its teeth.

9. It is set forth in the petition that Section 498-A IPC has beenspecifically enacted to protect the vulnerable sections of the societywho have been victims of cruelty and harassment. The social purposebehind Section 498-A IPC is being lost as the rigour of the said provisionhas been diluted and the offence has practically been made bailable byreason of various qualifications and restrictions prescribed by variousdecisions of this Court includingRajesh Sharma and others v. Stateof U.P. and another[4], recent pronouncement.

10. It has also been submitted by the petitioners that the police ishesitant to arrest the accused on complaint of married women and thesame inaction is justified by quoting various judgments, despite the factthat Section 498-A IPC discloses non-bailable offence and sufficientchecks and balances have been provided in the law itself under Section

4 AIR 2017 SC 3869 : 2017 (8) SCALE 313

A41 CrPC. To prevent arbitrary and necessary arrest, the statute veryclearly states that the police shall record reasons for effecting arrest aswell as for not arresting.

11. The petitioners have also asseverated that there is lack ofmonitoring mechanism to track cases registered under Section 498-ABIPC including systematic study of the reason of low convictions and dueto this absence, penal laws have not been able to secure safe marriedenvironment to women. This, as per the petitioners, has also resulted inrise in cases under Section 498-A IPC because the deterrent effect ofthe said provision is getting diluted. It is also the case of the petitionersthat investigation by the police of offence under Section 498-A IPC isCoften unprofessional and callous and the investigating officers perceptiblyget influenced by both the parties which results in perpetrators escapingconviction.

12. It is further contended that in many cases under Section498-A, IPC the Court has not considered mental cruelty caused to theDwoman but has concentrated only on any sign of physical cruelty due towhich the courts do not look into case if the evidence does not showthat the woman was physically harassed. This has led the courts tobrand the woman on many occasions as hyper-sensitive or of lowtolerance level.E

13. It has been further averred that the alleged abuse of the penalprovision is mostly by well-educated women who know that the offenceis both cognizable and non-bailable and impromptu works on the complaintof the woman by placing the man behind the bars, but this cannot be aground for denying the poor and illiterate women the protection that isFoffered by Section 498-A IPC against cruelty, rather there is need tocreate awareness specifically in the rural areas about the laws forprotection of women and consequent available remedies in case of breach.14. It is also set forth in the petition that despite the DowryProhibition Act, 1961 being passed, the irony still survives perhaps withGmore oxygen, for the social evil of dowry is on the increase and is openlypractised with pride. It is put forth that women today are still torturedand often the court, despite being the ultimate saviour, does not come tothe rescue of these women as consequence of which an atmosphereof ambivalence prevails and such societal ambivalence creates situationof war between two classes though in actuality the offence is relatableHto individuals. sorry state of affairs is pronouncedly asserted.

SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOIMINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]

15. On the aforesaid bedrock, prayer in Writ Petition (Civil) No.73 of 2015 has been made to have uniform policy of registration ofFIR, arrest and bail in cases of Section 498-A IPC. It is worthy to notehere that during the pendency of this Writ Petition, the judgment hadbeen pronounced in Rajesh Sharma (supra). The Court in RajeshSharma (supra) issued the following guidelines:-

“19.i) (a) In every district one or more Family Welfare Committeesbe constituted by the District Legal Services Authorities preferablycomprising of three members. The constitution and working ofsuch committees may be reviewed from time to time and at leastonce in year by the District and Sessions Judge of the districtwho is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legalvolunteers/social workers/retired persons/ wives of workingofficers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police orthe Magistrate be referred to and looked into by such committee.Such committee may have interaction with the parties personallyor by means of telephone or any other mode of communicationincluding electronic communication.

(e) Report of such committee be given to the Authority by whomthe complaint is referred to it latest within one month from thedate of receipt of complaint.

(f) The committee may give its brief report about the factualaspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest shouldnormally be effected.

(h) The report may be then considered by the Investigating Officeror the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimumtraining as may be considered necessary by the Legal ServicesAuthority from time to time.

(j) The Members of the committee may be given such honorariumas may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize thecost fund wherever considered necessary and proper.

ii) Complaints under Section 498A and other connected offencesmay be investigated only by designated Investigating Officer ofthe area. Such designations may be made within one month fromtoday. Such designated officer may be required to undergo trainingfor such duration (not less than one week) as may be consideredappropriate. The training may be completed within four monthsfrom today;

iii) In cases where settlement is reached, it will be open to theDistrict and Sessions Judge or any other senior Judicial Officernominated by him in the district to dispose of the proceedingsincluding closing of the criminal case if dispute primarily relates tomatrimonial discord;

iv) If bail application is filed with at least one clear day’s noticeto the Public Prosecutor/complainant, the same may be decidedas far as possible on the same day. Recovery of disputed dowryitems may not by itself be ground for denial of bail if maintenanceor other rights of wife/minor children can otherwise be protected.Needless to say that in dealing with bail matters, individual roles,prima facie truth of the allegations, requirement of further arrest/custody and interest of justice must be carefully weighed;

v) In respect of persons ordinarily residing out of India impoundingof passports or issuance of Red Corner Notice should not be aroutine;

vi) It will be open to the District Judge or designated seniorjudicial officer nominated by the District Judge to club all connectedcases between the parties arising out of matrimonial disputes sothat holistic view is taken by the Court to whom all such casesare entrusted; and

vii) Personal appearance of all family members and particularlyoutstation members may not be required and the trial court oughtto grant exemption from personal appearance or permit appearanceby video conferencing without adversely affecting progress ofthe trial.

viii) These directions will not apply to the offences involvingtangible physical injuries or death.”

16. In the meanwhile, Writ Petition (Criminal) No. 156 of 2017had been filed. prayer had been made in the said Writ Petition toimplement the suggestion that out of three members, at least two membersshould be appointed in the Family Welfare Committee. When this WritPetition was listed on 13.10.2017, the following order came to be passed:-

“Mr. Alok Singh, learned counsel for the petitioner though has adifferent set of prayers in the writ petition, it fundamentally requiresthis Court to implement directions rendered in Criminal AppealNo.1265 of 2017 [Rajesh Sharma vs. State of U.P. and Another].Additionally, learned counsel would submit that certain ladymembers, certain organizations and welfare committees are to beinvolved.

At this stage, we are obligated to state that we are not inagreement with the decision rendered in Rajesh Sharma (supra)because we are disposed to think that it really curtails the rightsof the women who are harassed under Section 498A of the IndianPenal Code. That apart, prima facie, we perceive that the guidelinesmay be in the legislative sphere.

Issue notice to the respondent Nos.1 to 3. No notice needbe issued to the respondent No.4. Even if the petitioner does nottake steps, the Registry shall see to it that the respondents areserved. Ms. Indu Malhotra and Mr. V. Shekhar, learned seniorcounsel are appointed as Amicus Curiae to assist the Court in thematter.

List the matter on 29th November, 2017.”

17. Mr. V. Shekhar, learned senior counsel, was appointed asAmicus Curiae to assist the Court in the matter.

18. It was submitted by the learned Amicus Curiae that the decisionin Rajesh Sharma (supra) requires reconsideration, for the said judgmentconfers powers on the Family Welfare Committee to be constituted bythe District Legal Services Authority which is an extra-judicial committeeof para legal volunteers/social workers/retired persons/wives of workingofficers/other citizens to look into the criminal complaints under Sections

A498-A IPC in the first instance and further, there has been directionthat till such time report of the committee is received, no arrest shouldbe made. It is urged that the constitution of FWC to look into the criminalcomplaints under Section 498-A IPC is contrary to the procedureprescribed under the Code of Criminal Procedure.

B19. It is further propounded that the directions in certain paragraphsof the judgment in Rajesh Sharma (supra) entrusting the power to disposeof the proceedings under Section 498-A IPC by the District and SessionsJudge or any other senior judicial officer nominated by him in the districtin cases where there is settlement, are impermissible, for an offenceunder Section 498-A is not compoundable and hence, such powerCcould not have been conferred on any District and Sessions Judge orany senior judicial officer nominated by him. Elaborating the saidsubmission, it is canvassed that the High Court is empowered underSection 482 CrPC to quash the proceeding if there is settlement betweenthe parties. Learned Amicus Curiae further submitted that the recoveryDof disputed dowry items may not itself be ground for denial of bailwhich is the discretion of the court to decide the application of grant ofbail in the facts and circumstances of the case and thus, this tantamountsto direction which is not warranted in law. Criticism has been advancedwith regard to the direction in paragraph 19(v) which states that forpersons who are ordinarily residing out of India, impounding of passportsEor issuance of Red Corner Notice should not be done in routine manner.It is urged that if an accused does not join the investigation relating tomatrimonial/family offence, the competent court can issue appropriatedirections to the concerned authorities to issue Red Corner Notice whichwill depend on the facts of the case.F

20. Learned Amicus Curiae has further put forth that dispensationof personal appearance of outstation family members is unwarranted,for in criminal proceeding, the competent court which deals withapplication of exemption should be allowed to exercise the judicialdiscretion and there should not have been general direction by thisGCourt. Certain suggestions have been given by the learned AmicusCuriae which we shall refer to at the relevant stage.

21. To appreciate the controversy, it is necessary to understandthe scope of Section 498-A of IPC. It reads thus:-

SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOIMINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]

“498-A. Husband or relative of husband of womansubjecting her to cruelty.—Whoever, being the husband or therelative of the husband of woman, subjects such woman to crueltyshall be pun-ished with imprisonment for term which may extendto three years and shall also be liable to fine. Explanation.—Forthe purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such nature as is likely todrive the woman to commit suicide or to cause grave injury ordanger to life, limb or health (whether mental or physical) of thewoman; or

(b) harassment of the woman where such harassment is with aview to coercing her or any person related to her to meet anyunlawful demand for any property or valuable security or is onaccount of failure by her or any person related to her to meetsuch demand.”

22. The said offence is cognizable and non-bailable offence.This Court in Arnesh Kumar v. State of Bihar and another[5] hasobserved that the said offence which is cognizable and non-bailableoffence has lent it dubious place of pride amongst the provisions thatare used as weapons rather than shield by disgruntled wives. The simplestway to harass is to get the husband and his relatives arrested under thisprovision. The Court has taken note of the statistics under “Crime inIndia 2012 Statistics” published by the National Crime Records Bureau,Ministry of Home Affairs which shows arrest of 1,97,762 persons allover India during the year 2012 for the offence under Section 498-A.Showing concern, the Court held that arrest brings humiliation, curtailsfreedom and casts scars forever and the police had not learnt its lessonwhich is implicit and embodied in the Criminal Procedure Code.Commenting on the police, the Court said:-

“It has not come out of its colonial image despite six decades ofIndependence, it is largely considered as tool of harassment,oppression and surely not considered friend of public. The needfor caution in exercising the drastic power of arrest has beenemphasised time and again by the courts but has not yielded desiredresult. Power to arrest greatly contributes to its arrogance so alsothe failure of the Magistracy to check it. Not only this, the power

of arrest is one of the lucrative sources of police corruption. Theattitude to arrest first and then proceed with the rest is despicable.It has become handy tool to the police officers who lack sensitivityor act with oblique motive.”

23. The Court, thereafter, has drawn distinction between theBpower to arrest and justification for the exercise of it and analysed Section41 CrPC. Section 41 stipulates when police may arrest without warrant.The said provision reads as follows:-

“41. When police may arrest without warrant.—(1) Any policeofficer may without an order from Magistrate and without awarrant, arrest any person—

(a) who commits, in the presence of police officer, cognizableoffence;

(b) against whom reasonable complaint has been made, orcredible information has been received, or reasonable suspicionDexists that he has committed cognizable offence punishable withimprisonment for term which may be less than seven years orwhich may extend to seven years whether with or without fine, ifthe following conditions are satisfied, namely:—

(i) the police officer has reason to believe on the basis of suchcomplaint, information, or suspicion that such person hascommitted the said offence;

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence;or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of theoffence to disappear or tampering with such evidence in anymanner; or

(d) to prevent such person from making any inducement, threator promise to any person acquainted with the facts of the caseso as to dissuade him from disclosing such facts to the Courtor to the police officer; or

(e) as unless such person is arrested, his presence in the Courtwhenever required cannot be ensured,

and the police officer shall record while making such arrest, hisreasons in writing.

Provided that police officer shall, in all cases where the arrestof person is not required under the provisions of this sub-section,record the reasons in writing for not making the arrest.

(ba) against whom credible information has been received that hehas committed cognizable offence punishable with imprisonmentfor term which may extend to more than seven years whetherwith or without fine or with death sentence and the police officerhas reason to believe on the basis of that information that suchperson has committed the said offence.

(c) who has been proclaimed as an offender either under thisCode or by order of the State Government; or

(d) in whose possession anything is found which may reasonablybe suspected to be stolen property and who may reasonably besuspected of having committed an offence with reference to suchthing; or

(e) who obstructs police officer while in the execution of hisduty, or who has escaped, or attempts to escape, from lawfulcustody; or

(f) who is reasonable suspected of being deserter from any ofthe Armed Forces of the Union; or

(g) who has been concerned in, or against whom reasonablecomplaint has been made, or credible information has beenreceived, or reasonable suspicion exists, of his having beenconcerned in, any act committed at any place out of India which,if committed in India, would have been punishable as an offence,and for which he is, under any law relating to extradition, orotherwise, liable to be apprehended or detained in custody in India;or

(h) who, being released convict, commits breach of any rulemade under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, hasbeen received from another police officer, provided that therequisition specifies the person to be arrested and the offence orother cause for which the arrest is to be made and it appearstherefrom that the person might lawfully be arrested without awarrant by the officer who issued the requisition.

(2) Subject to the provisions of section 42, no person concerned ina non-cognizable offence or against whom complaint has beenmade or credible information has been received or reasonablesuspicion exists of his having so concerned, shall be arrested exceptunder warrant or order of Magistrate.”

24. Scrutinising the said provision, the Court held as under:-

“7.1. From plain reading of the aforesaid provision, it is evidentthat person accused of an offence punishable with imprisonmentfor term which may be less than seven years or which mayextend to seven years with or without fine, cannot be arrested bythe police officer only on his satisfaction that such person hadcommitted the offence punishable as aforesaid. police officerbefore arrest, in such cases has to be further satisfied that sucharrest is necessary to prevent such person from committing anyfurther offence; or for proper investigation of the case; or toprevent the accused from causing the evidence of the offence todisappear; or tampering with such evidence in any manner; or toprevent such person from making any inducement, threat orpromise to witness so as to dissuade him from disclosing suchfacts to the court or the police officer; or unless such accusedperson is arrested, his presence in the court whenever requiredcannot be ensured. These are the conclusions, which one mayreach based on facts.

7.3. In pith and core, the police officer before arrest must put aquestion to himself, why arrest? Is it really required? What purposeit will serve? What object it will achieve? It is only after thesequestions are addressed and one or the other conditions asenumerated above is satisfied, the power of arrest needs to beexercised. In fine, before arrest first the police officers shouldhave reason to believe on the basis of information and material

that the accused has committed the offence. Apart from this, thepolice officer has to be satisfied further that the arrest is necessaryfor one or the more purposes envisaged by sub-clauses (a) to (e)of clause (1) of Section 41 CrPC.”

25. The learned Judges, thereafter, referred to Section 41-A CrPCwhich has been inserted by Section 6 of the Code of Criminal Procedure(Amendment) Act, 2008 (5 of 2009). The said provision is to the followingeffect:-

“41-A. Notice of appearance before police officer.—(1) Thepolice officer shall, in all cases where the arrest of person is notrequired under the provisions of sub-section (1) of Section 41,issue notice directing the person against whom reasonablecomplaint has been made, or credible information has beenreceived, or reasonable suspicion exists that he has committeda cognizable offence, to appear before him or at such other placeas may be specified in the notice.

(2) Where such notice is issued to any person, it shall be theduty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply withthe notice, he shall not be arrested in respect of the offencereferred to in the notice unless, for reasons to be recorded, thepolice officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with theterms of the notice or is unwilling to identify himself, the policeofficer may, subject to such orders as may have been passed by acompetent court in this behalf, arrest him for the offence mentionedin the notice.”

Explaining the said provision, it has been ruled:-

“9. …The aforesaid provision makes it clear that in all cases wherethe arrest of person is not required under Section 41(1) CrPC,

the police officer is required to issue notice directing the accusedto appear before him at specified place and time. Law obligessuch an accused to appear before the police officer and it furthermandates that if such an accused complies with the terms of noticehe shall not be arrested, unless for reasons to be recorded, thepolice officer is of the opinion that the arrest is necessary. At this

stage also, the condition precedent for arrest as envisaged underSection 41 CrPC has to be complied and shall be subject to thesame scrutiny by the Magistrate as aforesaid.”

The Court further went on to say that:-

“10. We are of the opinion that if the provisions of Section 41CrPC which authorises the police officer to arrest an accusedwithout an order from Magistrate and without warrant arescrupulously enforced, the wrong committed by the police officersintentionally or unwittingly would be reversed and the number ofcases which come to the Court for grant of anticipatory bail willsubstantially reduce. We would like to emphasise that the practiceof mechanically reproducing in the case diary all or most of thereasons contained in Section 41 CrPC for effecting arrest bediscouraged and discontinued.”

The directions issued in the said case are worthy to note:-

“11. Our endeavour in this judgment is to ensure that policeofficers do not arrest the accused unnecessarily and Magistratedo not authorise detention casually and mechanically. In order toensure what we have observed above, we give the followingdirections:

11.1. All the State Governments to instruct its police officers notto automatically arrest when case under Section 498-A IPC isregistered but to satisfy themselves about the necessity for arrestunder the parameters laid down above flowing from Section 41CrPC;

11.2. All police officers be provided with check list containingspecified sub-clauses under Section 41(1)(b)(ii);

11.3. The police officer shall forward the check list duly filled andfurnish the reasons and materials which necessitated the arrest,while forwarding/producing the accused before the Magistratefor further detention;

11.4. The Magistrate while authorising detention of the accusedshall peruse the report furnished by the police officer in termsaforesaid and only after recording its satisfaction, the Magistratewill authorise detention;

11.5. The decision not to arrest an accused, be forwarded to theMagistrate within two weeks from the date of the institution ofthe case with copy to the Magistrate which may be extended bythe Superintendent of Police of the district for the reasons to berecorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC beserved on the accused within two weeks from the date of institutionof the case, which may be extended by the Superintendent ofPolice of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apartfrom rendering the police officers concerned liable for departmentalaction, they shall also be liable to be punished for contempt ofcourt to be instituted before the High Court having territorialjurisdiction.

11.8. Authorising detention without recording reasons as aforesaidby the Judicial Magistrate concerned shall be liable fordepartmental action by the appropriate High Court.”

26. The aforesaid decision, as is perceptible, is in accord with thelegislative provision. The directions issued by the Court are in the natureof statutory reminder of constitutional court to the authorities for properimplementation and not to behave like emperors considering the notionthat they can do what they please. In this context, we may refer withprofit to passage from Joginder Kumar v. State of U.P and others[6]:-

“20. … No arrest can be made in routine manner on mereallegation of commission of an offence made against person. Itwould be prudent for police officer in the interest of protectionof the constitutional rights of citizen and perhaps in his owninterest that no arrest should be made without reasonablesatisfaction reached after some investigation as to the genuinenessand bona fides of complaint and reasonable belief both as tothe person’s complicity and even so as to the need to effect arrest.Denying person of his liberty is serious matter. Therecommendations of the Police Commission merely reflect theconstitutional concomitants of the fundamental right to personalliberty and freedom. person is not liable to arrest merely on thesuspicion of complicity in an offence. There must be some

reasonable justification in the opinion of the officer effecting thearrest that such arrest is necessary and justified. Except in heinousoffences, an arrest must be avoided if police officer issues noticeto person to attend the Station House and not to leave the Stationwithout permission would do.”

B27. Again, the Court in Joginder Kumar(supra), while voicingits concern regarding complaints of human rights pre and after arrest,observed thus:-

“9. realistic approach should be made in this direction. The lawof arrest is one of balancing individual rights, liberties and privileges,Con the one hand, and individual duties, obligations andresponsibilities on the other; of weighing and balancing the rights,liberties and privileges of the single individual and those ofindividuals collectively; of simply deciding what is wanted andwhere to put the weight and the emphasis; of deciding whichcomes first—the criminal or society, the law violator or the lawDabider….”

28. In D.K. Basu v. State of W.B.[7], after referring to the authoritiesin Joginder Kumar (supra), Nilabati Behera v. State of Orissa andothers[8] and State of M.P. v. Shyamsunder Trivedi and others[9], theCourt laid down certain guidelines and we think it appropriate to reproduceEthe same:-

“(1) The police personnel carrying out the arrest and handling theinterrogation of the arrestee should bear accurate, visible and clearidentification and name tags with their designations. The particularsof all such police personnel who handle interrogation of the arresteeFmust be recorded in register.

(2) That the police officer carrying out the arrest of the arresteeshall prepare memo of arrest at the time of arrest and suchmemo shall be attested by at least one witness, who may eitherbe member of the family of the arrestee or respectable personGof the locality from where the arrest is made. It shall also becountersigned by the arrestee and shall contain the time and dateof arrest.

7 (1997) 1 SCC 416

8 (1993) 2 SCC 746

H9 (1995) 4 SCC 262

(3) person who has been arrested or detained and is being heldin custody in police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other personknown to him or having interest in his welfare being informed, assoon as practicable, that he has been arrested and is being detainedat the particular place, unless the attesting witness of the memoof arrest is himself such friend or relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arresteemust be notified by the police where the next friend or relative ofthe arrestee lives outside the district or town through the LegalAid Organisation in the District and the police station of the areaconcerned telegraphically within period of 8 to 12 hours afterthe arrest.

(5) The person arrested must be made aware of this right to havesomeone informed of his arrest or detention as soon as he is putunder arrest or is detained.

(6) An entry must be made in the diary at the place of detentionregarding the arrest of the person which shall also disclose thename of the next friend of the person who has been informed ofthe arrest and the names and particulars of the police officials inwhose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examinedat the time of his arrest and major and minor injuries, if any, presenton his/her body, must be recorded at that time. The “InspectionMemo” must be signed both by the arrestee and the police officereffecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by atrained doctor every 48 hours during his detention in custody by adoctor on the panel of approved doctors appointed by Director,Health Services of the State or Union Territory concerned.Director, Health Services should prepare such panel for all tehsilsand districts as well.

(9) Copies of all the documents including the memo of arrest,referred to above, should be sent to the Illaqa Magistrate for hisrecord.

A(10) The arrestee may be permitted to meet his lawyer duringinterrogation, though not throughout the interrogation.

(11) police control room should be provided at all district andState headquarters, where information regarding the arrest andthe place of custody of the arrestee shall be communicated by theBofficer causing the arrest, within 12 hours of effecting the arrestand at the police control room it should be displayed on aconspicuous notice board.”

29. In Lalita Kumari v. Government of Uttar Pradesh andothers[10], the Constitution Bench, referring to various provisions of CrPC,Cadverted to the issue of conducting preliminary enquiry. Eventually,the Court opined that the scope of preliminary enquiry is not to verify theveracity or otherwise of the information received but only to ascertainwhether the information reveals any cognizable offence and, thereafter,proceeded to state thus:-

“120.6. As to what type and in which cases preliminary inquiry isDto be conducted will depend on the facts and circumstances ofeach case. The category of cases in which preliminary inquirymay be made are as under:

(a) Matrimonial disputes/family disputes

E(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiatingcriminal prosecution, for example, over 3 months’ delay in reportingFthe matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of allconditions which may warrant preliminary inquiry.”

30. From the aforesaid, it is quite vivid that the Constitution Bench

had suggested that preliminary enquiry may be held in matrimonial/familyGdisputes.

31. In Rajesh Sharma (supra), as is noticeable, the Court hadreferred to authorities in Arnesh Kumar (supra) and Lalita Kumari(supra) and observed that:-

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“16. Function of this Court is not to legislate but only to interpretthe law. No doubt in doing so laying down of norms is sometimesunavoidable.[11] Just and fair procedure being part of fundamentalright to life,[12] interpretation is required to be placed on penalprovision so that its working is not unjust, unfair or unreasonable.The court has incidental power to quash even anon-compoundable case of private nature, if continuing theproceedings is found to be oppressive.[13] While stifling alegitimate prosecution is against public policy, if the proceedingsin an offence of private nature are found to be oppressive, powerof quashing is exercised.

17. We have considered the background of the issue and alsotaken into account the 243rd Report of the Law Commission dated30th August, 2012, 140th Report of the Rajya Sabha Committeeon Petitions (September, 2011) and earlier decisions of this Court.We are conscious of the object for which the provision was broughtinto the statute. At the same time, violation of human rights ofinnocent cannot be brushed aside. Certain safeguards againstuncalled for arrest or insensitive investigation have been addressedby this Court. Still, the problem continues to great extent.18. To remedy the situation, we are of the view that involvementof civil society in the aid of administration of justice can be one ofthe steps, apart from the investigating officers and the concernedtrial courts being sensitized. It is also necessary to facilitateclosure of proceedings where genuine settlement has beenreached instead of parties being required to move High Courtonly for that purpose.”

32. After so stating, the directions have been issued which wehave reproduced in paragraph 15 hereinabove.

33. On perusal of the aforesaid paragraphs, we find that theCourt has taken recourse to fair procedure and workability of provisionso that there will be no unfairness and unreasonableness in implementation

11Sahara India Real Estate Corporation Limited v. Securities and Exchange Board ofIndia : (2012) 10 SCC 603, Para 52; SCBA v. Union of India : (1998) 4 SCC 409, Para47; Union of India v. Raghubir Singh (d) by Lrs. : (1989) 2 SCC 754, Para 7; Dayaramv. Sudhir Batham : (2012) 1 SCC 333

12State of Punjab v. Dalbir Singh : (2012) 3 SCC 346, Paras 46, 52 & 85

13Gian Singh v. State of Punjab : (2012) 10 SCC 303, Para 61

Aand for the said purpose, it has taken recourse to the path of interpretation.The core issue is whether the Court in Rajesh Sharma (supra) could,by the method of interpretation, have issued such directions. On perusalof the directions, we find that the Court has directed constitution of theFamily Welfare Committees by the District Legal Services Authoritiesand prescribed the duties of the Committees. The prescription of dutiesBof the Committees and further action therefor, as we find, are beyondthe Code and the same does not really flow from any provision of theCode. There can be no denial that there has to be just, fair and reasonableworking of provision. The legislature in its wisdom has made the offenceunder Section 498-A IPC cognizable and non-bailable. The fault liesCwith the investigating agency which sometimes jumps into action withoutapplication of mind. The directions issued in Arnesh Kumar (supra) arein consonance with the provisions contained in Section 41 CrPC andSection 41-A CrPC. Similarly, the guidelines stated in Joginder Kumar(supra) and D.K. Basu (supra) are within the framework of the Codeand the power of superintendence of the authorities in the hierarchicalDsystem of the investigating agency. The purpose has been to see that theinvestigating agency does not abuse the power and arrest people at itswhim and fancy.

34. In Rajesh Sharma (supra), there is introduction of thirdagency which has nothing to do with the Code and that apart, theECommittees have been empowered to suggest report failing which noarrest can be made. The directions to settle case after it is registeredis not correct expression of law. criminal proceeding which is notcompundable can be quashed by the High Court under Section 482 CrPC.When settlement takes place, then both the parties can file petitionFunder Section 482 CrPC and the High Court, considering the bonafideof the petition, may quash the same. The power rests with the HighCourt. In this regard, we may reproduce passage from three-JudgeBench in Gian Singh (supra). In the said case, it has been held that:-

“61. … Inherent power is of wide plenitude with no statutoryGlimitation but it has to be exercised in accord with the guidelineengrafted in such power viz.: (i) to secure the ends of justice, or(ii) to prevent abuse of the process of any court. In what casespower to quash the criminal proceeding or complaint or FIR maybe exercised where the offender and the victim have settled their

SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOIMINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]

dispute would depend on the facts and circumstances of eachcase and no category can be prescribed. However, before exerciseof such power, the High Court must have due regard to the natureand gravity of the crime. Heinous and serious offences of mentaldepravity or offences like murder, rape, dacoity, etc. cannot befittingly quashed even though the victim or victim’s family and theoffender have settled the dispute. Such offences are not privatein nature and have serious impact on society. Similarly, anycompromise between the victim and the offender in relation tothe offences under special statutes like the Prevention of CorruptionAct or the offences committed by public servants while workingin that capacity, etc.; cannot provide for any basis for quashingcriminal proceedings involving such offences. But the criminalcases having overwhelmingly and predominatingly civil flavourstand on different footing for the purposes of quashing, particularlythe offences arising from commercial, financial, mercantile, civil,partnership or such like transactions or the offences arising out ofmatrimony relating to dowry, etc. or the family disputes wherethe wrong is basically private or personal in nature and the partieshave resolved their entire dispute. In this category of cases, theHigh Court may quash the criminal proceedings if in its view,because of the compromise between the offender and the victim,the possibility of conviction is remote and bleak and continuationof the criminal case would put the accused to great oppressionand prejudice and extreme injustice would be caused to him bynot quashing the criminal case despite full and complete settlementand compromise with the victim.”

35. Though Rajesh Sharma (supra) takes note of Gian Singh(supra), yet it seems to have it applied in different manner. The seminalissue is whether these directions could have been issued by the processof interpretation. This Court, in furtherance of fundamental right, hasissued directions in the absence of law in certain cases, namely, LakshmiKant Pandey v. Union of India[14], Vishaka and others v. State ofRajasthan and others[15] and Common Cause (A Registered Society)v. Union of India and another[16] and some others. In the obtaining

14 (1984) 2 SCC 24415 (1997) 6 SCC 24116 (2018) 5 SCC 1

Afactual matrix, there are statutory provisions and judgments in the fieldand, therefore, the directions pertaining to constitution of Committeeand conferment of power on the said Committee is erroneous. However,the directions pertaining to Red Corner Notice, clubbing of cases andpostulating that recovery of disputed dowry items may not by itself be aground for denial of bail would stand on different footing. They areBprotective in nature and do not sound discordant note with the Code.When an application for bail is entertained, proper conditions have to beimposed but recovery of disputed dowry items may not by itself be aground while rejecting an application for grant of bail under Section498-A IPC. That cannot be considered at that stage. Therefore, we doCnot find anything erroneous in direction Nos. 19(iv) and (v). So far asdirection No. 19(vi) and 19(vii) are concerned, an application has to befiled either under Section 205 CrPC or Section 317 CrPC dependingupon the stage at which the exemption is sought.36. We have earlier stated that some of the directions issued inDRajesh Sharma (supra) have the potential to enter intothe legislativefield. three-Judge Bench inSuresh Seth v. Commissioner, IndoreMunicipal Corporation and others[17] ruled thus:-

“5. … In our opinion, this is matter of policy for the electedrepresentatives of people to decide and no direction in this regardEcan be issued by the Court. That apart this Court cannot issueany direction to the legislature to make any particular kind ofenactment. Under our constitutional scheme Parliament andLegislative Assemblies exercise sovereign power to enact lawsand no outside power or authority can issue direction to enact aFparticular piece of legislation. In Supreme Court Employees’Welfare Assn. v. Union of India[18] (SCC para 51) it has beenheld that no court can direct legislature to enact particularlaw. Similarly, when an executive authority exercises legislativepower by way of subordinate legislation pursuant to the delegatedauthority of legislature, such executive authority cannot be askedGto enact law which it has been empowered to do under thedelegated legislative authority. …”

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37.Another three-Judge Bench in Census Commissioner andothers v. R. Krishnamurthy[19], after referring to N.D. Jayal andanother v. Union of India and others[20], Rustom Cavasjee Cooper v.Union of India[21], Premium Granites and another v. State of T.N.and others[22], M.P. Oil Extraction and another v. State of M.P. andothers[23], State of Madhya Pradesh v. Narmada Bachao Andolanand another[24] and State of Punjab and others v. Ram Lubhaya Baggaand others[25], opined:-

“33. From the aforesaid pronouncement of law, it is clear as noonday that it is not within the domain of the courts to embark uponan enquiry as to whether particular public policy is wise andacceptable or whether better policy could be evolved. The courtcan only interfere if the policy framed is absolutely capricious ornot informed by reasons or totally arbitrary and founded ipse dixitoffending the basic requirement of Article 14 of the Constitution.In certain matters, as often said, there can be opinions and opinionsbut the court is not expected to sit as an appellate authority on anopinion.”

38.In the aforesaid analysis, while declaring the directionspertaining to Family Welfare Committee and its constitution by the DistrictLegal Services Authority and the power conferred on the Committee isimpermissible. Therefore, we think it appropriate to direct that theinvestigating officers be careful and be guided by the principles stated inJoginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra)and Arnesh Kumar (supra). It will also be appropriate to direct theDirector General of Police of each State to ensure that investigatingofficers who are in charge of investigation of cases of offences underSection 498-A IPC should be imparted rigorous training with regard tothe principles stated by this Court relating to arrest.

39. In view of the aforesaid premises, the direction contained inparagraph 19(i) as whole is not in accord with the statutory frameworkand the direction issued in paragraph 19(ii) shall be read in conjunctionwith the direction given hereinabove.

19 (2015) 2 SCC 79620 (2004) 9 SCC 36221 (1970) 1 SCC 24822 (1994) 2 SCC 69123 (1997) 7 SCC 59224 (2011) 7 SCC 63925 (1998) 4 SCC 117

A40. Direction No. 19(iii) is modified to the extent that if settlementis arrived at, the parties can approach the High Court under Section 482of the Code of Criminal Procedure and the High Court, keeping in viewthe law laid down in Gian Singh (supra), shall dispose of the same.

41. As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii)Bare concerned, they shall be governed by what we have stated inparagraph 35.

42. With the aforesaid modifications in the directions issued inRajesh Sharma (supra), the writ petitions and criminal appeal standdisposed of. There shall be no order as to costs.

Ankit Gyan

Matters disposed of.