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Abuse of anti-dowry law: Supreme Court says no arrest till charges verified

LiveMint logoLiveMint 28-07-2017 PTI

New Delhi: The Supreme Court has voiced concern over “abuse” of the anti-dowry law and has directed that no arrest should “normally be effected” without verifying allegations as violation of human rights of innocents cannot be brushed aside.

The apex court, which passed a slew of directions to deal with complaints under section 498 A (subjecting a married woman to cruelty) of the Indian Penal Code (IPC), including constitution of family welfare committees in every district, has observed that many of such complaints are not bona fide and “uncalled for arrest”, and may ruin the chances of settlement.

It noted that the apex court had earlier observed that a serious review of the provision was warranted and, at times, such complaints lead to uncalled harassment of not only the accused but also the complainant.

“We are conscious of the object for which the provision (498 A of the IPC) was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this court. Still, the problem continues to a great extent,” a bench of justices Adarsh Kumar Goel and U.U. Lalit said.

The apex court directed that in every district, one or more family welfare committees be constituted by the district legal services authorities (DLSA) and every complaint received by police or the magistrate under this provision be referred to and looked into by the committee.

It said that constitution and working of such committee, which would preferably be comprising of three members, may be reviewed from time to time and at least once in a year by the district and sessions judge of the district concerned.

The bench said that such committees may be constituted of para-legal volunteers, social workers, retired persons, wives of working officers and others who may be found suitable and willing. It also said that committee members would not be called as witnesses in such cases and the panel may have interaction with the parties, involved in such cases, personally or by other means of communication.

“Report of such committee be given to the authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint. The committee may give its brief report about the factual aspects and its opinion in the matter. Till the report of the committee is received, no arrest should normally be effected,” the bench said.

The bench said the committee’s report may then be considered by the investigating officer or the magistrate on its own merit. “Members of the committee may be given such basic minimum training as may be considered necessary by the legal services authority from time to time. The members of the committee may be given such honorarium as may be considered viable. It will be open to the district and sessions judge to utilise the cost fund wherever considered necessary and proper,” the bench said.

The court said that complaints under this provision and other connected offences may be probed only by a designated investigating officer of that area and they may be required to undergo training for this.

“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,” it said.

The bench also said that if a bail plea is filed in such matter, the same may be decided as far as possible on the same day with at least one day’s notice to the public prosecutor or the complainant.

“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,” it said.

The court said that regarding persons residing out of India, the process of impounding of passports or issuance of Red Corner Notice should not be a routine.

The apex court also said that 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.

The court, however, made it clear that “these directions will not apply to the offences involving tangible physical injuries or death”.

The court has asked the National Legal Services Authority (NALSA) to give a report about the need for change, if any, in the directions or for any further directions and listed the matter for consideration in April 2018.

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