India: Supreme Court Of India: New Guidelines For Preventing Misuse Of Section 498A Of Code Of Criminal Procedure. 1898

Last Updated: 7 September 2017
Article by Vineet Aneja and Kaveri Kumar

The question before the Hon'ble Supreme Court of India ("Apex Court") in Criminal Appeal No. 1265/2017 (Rajesh Sharma & Ors. vs State of UP) was whether any directions are called for to prevent the misuse of Section 498A of the Code of Criminal Procedure, 1898 ("Cr.P.C.").

Brief facts of the case are that a complaint was filed by the wife of the Appellant (Rajesh Sharma) against the Appellant and his parents and siblings (Appellants) alleging dowry demands, abuse and harassment. The Appellant was summoned by the Trial Court under Section 498 A and 323 of the Indian Penal Code ("IPC"). The family members of the Appellant were not summoned. Against the said order, the Complainant filed a Revision Petition, praying that the family of the Appellant be also summoned. The Revision Petition was accepted by the Additional Session Judge, Jaunpur and the Trial Court was directed to take a fresh decision in the matter. Accordingly, the Trial Court issued summons to the family members of the Appellant. The Appellants approached the High Court seeking quashing of the Trail Court's order under Section 482 of Cr. P. C. The High Court found no ground to interfere with the order of summoning and dismissed the petition. Hence, the present appeal before the Apex Court.

The Apex Court, after taking into account various judgments wherein the Courts had judicially acknowledged the misuse of the provisions of Section 498A of Cr. P. C. and reports, issued, inter- alia, the following directions;

  1. In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities (DLSA) preferably comprising of 3 members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the DLSA.
  2. The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.
  3. The Committee members will not be called as witnesses.
  4. Every complaint under S. 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.
  5. Report of such committee be given to the Authority by whom the complaint is referred to it latest within 1 month from the date of receipt of complaint.
  6. The committee may give its brief report about the factual aspects and its opinion in the matter.
  7. Till report of the committee is received, no arrest should normally be effected.
  8. The report may be then considered by the Investigating Officer (I.O.) or the Magistrate on its own merit.
  9. Complaints under S. 498A and other connected offences may be investigated only by a designated I.O. of the area. Such designated officer may be required to undergo training for such duration as may be considered appropriate;
  10. In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;
  11. If a bail application is filed with at least 1 clear day's notice to the Public Prosecutor/complainant, the same may be decided on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or 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;
  12. In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  13. It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes;
  14. Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.
  15. These directions will not apply to the offences involving tangible physical injuries or death.

This update is authored by Clasis Law, Clyde & Co's associated firm in India

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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