Wednesday, 9 July 2014

SC:No abuse of arrests under anti-dowry law, time to make 498A bailable

The Committee fears that failure to do so might leave no option except to dilute the law by making the same non-cognizable and bailable. In this context, the Committee recommends certain additional measures as contained in the succeeding paragraphs.

No Dowry arrests till magistrate's nod: SC , why such order made ? Look at the Graph , one hand the arrest of people is increasing in 498a , but after long trail Court found more than 85% people are not guilty. 

From the supreme court July,2014 judgment , it had proved beyond reasonable dought the government and police had failed to check the misuse of 498a and so the time had came to make the same bailable , demand Save Family Foundation and their associated organizations , as from the past experience , we witness such Judgments never followed by Police or by Government.
If we go through the NCRB data of 2013 recently released , the arrest had further incresed from 1.97L to 2.2 L , where as it was expected the same will be reduced as per new provision of CRPC41.

This is the 5th time Supreme Court had highlighted the need of stop the misuse of Dowry law like #IPC498a , but Government or Police had never taken any corrective actions.
In the last Parliament committee report by Rajya Sabah , it was clearly mentioned if the misuse of 498A does not reduced they have no option but to make it bailable.
NEW DELHI: The Supreme Court on Wednesday said women were increasingly using the anti-dowry law to harass in-laws and restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code.
Citing very low conviction rate in such cases, it directed the state governments to instruct police "not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of criminal procedure code".
Section 41 lays down a 9-point check list police to weigh the need to arrest after examining the conduct of the accused, including possibility of his absconding.
Expressing exasperation over rampant misuse of Section 498A, a bench of Justices C K Prasad and P C Ghose said if police arrested the accused, the magistrate should weigh the preliminary evidence against the Section 41 checklist before allowing further detention.
"The magistrate, while authorising detention of the accused shall peruse the report furnished by the police officer in terms of Section 41 and only after recording its satisfaction, the magistrate will authorize detention," the bench said.
It also said that this check-list for arrest and detention would apply to all offences, which are punished with a prison term less than 7 years. Punishment under Section 498A is a maximum of three years but it had been made a cognizable and non-bailable offence, which made grant of bail to the accused a rarity in courts.
But the court singled out the dowry harassment cases as the most abused and misused provision, though the legislature had enacted it with the laudable object to prevent harassment of women in matrimonial homes.

Writing the judgment for the bench, Justice Prasad said there had been a phenomenal increase in dowry harassment cases in India in the last few years. "The fact that Section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives," he said.
"The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested," he said.
The bench quoted "Crime in India 2012 Statistics" published by National Crime Records Bureau to say that nearly 2 lakh people were arrested in India in 2012 under Section 498-A, which was 9.4% more than in 2011.
"Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that others and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt," it said.
"The rate of charge-sheeting in cases under Section 498A is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal," the bench said illustrating the misuse of Section 498A as a tool to harass husband and his relatives.
Describing arrest as a humiliating experience apart from curtailing the freedom, the bench said police have not shed their colonial hangover despite six decades of independence and were still considered "as a tool of harassment, oppression, and surely not considered a friend of public".
The need for caution in exercising the drastic power of arrest had been emphasized time and again by courts but has not yielded results, the court said and tasked the magistrates to check illegal arrests.
date of order: 2 July 2014
Our endeavour in this judgment is to ensure that police  officers do not arrest accused unnecessarily and Magistrate do not authorize detention  casually and mechanically. In order to ensure what we have observed above, we give the following direction:

 (1) 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 41, Cr.PC;
(2) All police officers be provided with a check list containing specified sub-clauses
 under Section 41(1)(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(4) The Magistrate while authorising detention of the accused shall peruse the report
 furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused  within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.

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