Recently, the Hon’ble Supreme Court of India has commented extensively and come down heavily on the misuse of Section 498A of IPC vide its judgment dated July 02, 2014 in the case of Arnesh Kumar v. State of Bihar, Cr. Appeal No. 1277 of 2014 (“Arnesh Kumar Case”). Lex Witness examines the contentious provision and the observations of the Apex Court in such regard.
Acritical analysis of the Hon’ble Supreme Court’s observations in its latest ruling in Arnesh Kumar Case. Gender neutrality emphasises an equal treatment of men and women legally with no discrimination whatsoever. However, more often, it is felt by the public at large as well as legal experts that there are many laws in India, which are not gender neutral or in other words, it’s always the fairer sex, who is assumed to be the victim under such laws. Though the intent of the legislature in enacting these laws can’t be faulty, yet being subjected to misuse by the purported victims or their relatives for certain ulterior motives. One of such laws, which are often put to misuse by disgruntled wives, is Section 498A of Indian Penal Code, 1860 (IPC).
Section 498A of IPC is a criminal offence that came into existence to combat domestic violence and protect women from dowry harassment. Section 498A of IPC reads as under:
498A. Husband or relative of husband of a woman subjecting her to cruelty: “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation: For the purposes of this section, “cruelty” means
Or
A close analysis of the above section reflects that this provision deals with four types of cruelty:
or
It may be noted that section 498A is a cognizable, non-bailable, and noncompoundable offence which means as under:
“Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives.”
There is a phenomenal increase in the matrimonialdisputes in recent years. The institution ofmarriage is greatly revered in this country.Section 498-A of the IPC was introduced withavowed object to combat the menace of harassmentto a woman at the hands of her husband and hisrelatives. The Court in Arnesh Kumar Case observed that the fact that Section 498-A is a cognizable and non-bailable offence has lent it adubious place of pride amongst the provisions thatare used as weapons rather than shield bydisgruntled wives. The simplest way to harass is to get the husband and his relatives arrestedunder this provision.
Section 498A can only be invoked by wife, daughter-in-law or her relatives. Most cases where this sectionis invoked turn out as merelyblackmail attempts by the wife or her close relatives when faced with a strained marriage.
In most cases, section 498A complaint is followed by the demand of huge amount of money (extortion) to settle the case out of the court. Though this offence is a cognizable one, most of the times arrest happens before investigation. There have been countless instances where, without any investigation, the police has arrested elderly parents, grandparents, unmarried sisters, and pregnant sisters-in-law, sisters living abroad and even minor children. In these cases, unsuspecting family of husband has to go through a lot of mental torture and harassment by the corrupt Indian legal system. A typical case goes on for years and the rate of charge-sheeting incasesunder Section 498A, IPC is as high as 93.6 percent, while the conviction rate is only 15 percent, which is lowest across all heads under IPC.
Apart from extensively commenting on the misuse of section 498A of IPC by wife or her relative, the Court has also heavily come down on the attitude and actions of police in arresting and detaining the husband and his family members when a complaint is lodged for an offence under 498A. It has observed that the need forcaution in exercising the drastic power of arresthas been emphasised time and again by courts buthas not yielded desired result. Power to arrestgreatly contributes to its arrogance so also thefailure of the magistracy to check it. Not onlythis, the power of arrest is one of the lucrativesources of police corruption. The attitude toarrest first and then proceed with the rest isdespicable. It has become a handy tool to thepolice officers, who lack sensitivity or act withoblique motive. The Court further held that no arrest should be made onlybecause the offence is nonbailable and cognizable and therefore, lawful for the police officers todo so. The existence of the power to arrest isone thing, the justification for the exercise ofit is quite another.
The Supreme Court observed that a police officer has to be satisfied further thatthe arrest is necessary for one or the morepurposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of CrPC. From a plain reading of the said provision,it is evident that a person accused of offencepunishable with imprisonment for a term whichmay be less than seven years or which may extendto seven years with or without fine, cannot bearrested by the police officer only on itssatisfaction that such person had committed theoffence punishable as aforesaid. Police officerbefore arrest, in such cases has to be furthersatisfied that such arrest is necessary toprevent such person from committing any furtheroffence; or for proper investigation of the case; or to prevent the accused from causing theevidence of the offence to disappear; ortampering with such evidence in any manner; orto prevent such person from making anyinducement, threat or promise to a witness so asto dissuade him from disclosing such facts tothe Court or the police officer; or unless suchaccused person is arrested, his presence in thecourt whenever required cannot be ensured.These are the conclusions, which one may reachbased on facts. Law mandates the police officerto state the facts and record the reasons inwriting which led him to come to a conclusioncovered by any of the provisions aforesaid, while making such arrest. Law further requiresthe police officers to record the reasons inwriting for not making the arrest as well.
“In Arnesh Kumar v. State of Bihar, Cr. Appeal No. 1277 of 2014 case, the Court observed that since Section 498-A is a cognizable and non-bailable offence, so it has lent the simplest way to harass the husband and his relatives by disgruntled wives througharresting them.”
Further, the magistrate beforeauthorising detention will record its ownsatisfactionmay be in brief, but the saidsatisfaction must reflect from its order. Itshall never be based upon the ipse dixit of thepolice officer, for example, in case the policeofficer considers the arrest necessary to prevent such person from committing any furtheroffence or for proper investigation of the case
or for preventing an accused from tampering withevidence or making inducement etc., the policeofficer shall furnish to the magistrate thefacts, the reasons and materials on the basis of which he had reached itsconclusion. Those shall be perused by themagistrate while authorising the detention andonly after recording its satisfaction in writingthat the magistrate will authorise the detentionof the accused.
“The power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers, who lack sensitivity or act with oblique motive.”
The Court observed that a kind perusal of Section 41A of CrPC makes it clear that in all cases where the arrest of a person is notrequired under Section 41(1), CrPC, the police officer is required to issue notice directingthe accused to appear before him at a specifiedplace and time. Law obliges such an accused toappear before the police officer and it furthermandates that if such an accused complies withthe terms of notice, he shall not be arrested,unless for reasons to be recorded, the policeofficer is of the opinion that the arrest isnecessary. At this stage also, the conditionprecedent for arrest as envisaged under Section41 CrPC has to be complied and shall be subjectto the same scrutiny by the magistrate asaforesaid. The Court further observed that that if theprovisions of Section 41, CrPC which authorises the police officer to arrest an accused withoutan order from a magistrate and without a warrantare scrupulously enforced, the wrong committedby the police officers intentionally orunwittingly would be reversed and the number ofcases, which come to the court for grant ofanticipatory bail, will substantially reduce.
A typical case goes on for years and the rate of charge-sheeting in cases under Section 498A , IPC is as high as 93.6 percent, while the conviction rate is only 15 percent, which is lowest across all heads under IPC.
The Hon’ble Court has given following directions to the police officers and magistrates while dealing with a case under Section 498A of IPC in specific and exercising the power to arrests in general:
At the end, the Supreme Court has categorically held that the directions aforesaid shall not only apply to the casesunder Section 498-A of the IPC or Section 4of the Dowry Prohibition Act, the case inhand, but also such cases where offence ispunishable with imprisonment for a term whichmay be less than seven years or which mayextend to seven years; whether with or withoutfine.
It is the most unfortunate that Section 498- A of IPC has become a weapon in breaking the families rather than uniting them. A provision, which has been enacted with an avowed object, is falling prey in the hands of certain section of people aiming toextort monies in a strained marriage. There is no doubt that dowry menace is still rampant in the society, however, at the same time, it is also a fact that certain marriages are performed without any dowry. Due to ill-advice of wife’s friends and relatives or under a wrong impression that the husband may come to terms if a dowry case is lodged, complaints are being lodged with the police.There are many such laws enacted with the revered object of protecting women from domestic violence, sexual harassment and other growing crimes in a society which is still deep rooted with patriarchal domination. However, misuses of such laws reported time and again would only undermine the respect for such law, which are otherwise enacted for a just cause.Due to such misuse, there is also a danger that the real or genuine victims may be deprived of justice. The Hon’ble Supreme Court of India, always known for keeping a check on abuse of powers by police or misuse of any provision under law and at the same time bringing out the clarity in legislative intent behind enacting such law, has once again done the same by virtue of its ruling in Arnesh Kumar Case.
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