For many years, Supreme Court has been giving judgments on misuse of IPC 498a and they had even asked the law ministry to consider amending it. Many states have police circulars already on doing investigation or taking permission of higher police like DCP before arresting under 498a, but there is no guarantee that these rules are followed.
Justice Chandramauli Kr. Prasad along with Justice Pinaki Chandra Ghosh delivered their judgment. In the recent years various matrimonial cases came up. The main object of Section 498-A of IPC is to act as a shield against the harassment to a women at the hands of her husband and relatives. The fact that Section 498-A is a cognizable and non-bailable offence, many disrespectful and sly wives use this section as a weapon rather than a shield. There are cases where old grandparents of the husband were put behind the bars. The simplest way to harass the family of in laws by the wives are to use this provision as a weapon.
The Courts with has expressed it disapproval as to how the power of arrest and detention is dealt by Police and Magistrates. The power to arrest by is a vital power which are imposed on the public servant. But unfortunately we have seen various cases where this power is not exercised with the seriousness it deserves. In order to prevent unnecessary arrest and casual detention, the court has issued the following directions.
The Governments of all state will guide the police officers not to arrest automatically when any case under section 498-A of IPC is registered. They will make sure that such arrest must satisfy the the provisions laid down under section 41 of Civil Procedure Code.
All the police officers will be provided with check list containing specified sub-clauses under section 41(1)(b)(ii). The police officer shall forward the check list along with the reasons and materials which necessitated such arrest,while producing the accused before the Magistrate for any further arrest.
The Magistrate while authorizing custody of the accused shall examine the report furnished by the police officer and only after being satisfied will authorize further detention.
If the police officer decides not to arrest any accused,then such decision should be forwarded to the Magistrate in writing along with the reasons behind such decision within two weeks from the date of the institution of such case. A copy of it shall be forwarded to the Magistrate which may be extended by the Superintendent of police of the district.
Notice to appear in terms of Section 41-A of CrPC shall be served to the accused within two weeks of the institution of the case which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing.
If the police officer fails to comply with the aforesaid directions,then they will be liable for departmental actions and shall also be liable for to be punished for Contempt Of Court. Such cases should be instituted before the High Court having territorial jurisdiction.
If a Judicial Magistrate authorizes custody without recording the reasons as aforesaid, then he shall be liable for departmental action by the appropriate High Court. The aforesaid directions shall not only apply to cases under section 498-A of Indian Penal Code,1860 and section 4 of the Dowry Prohibition Act,1961 but also in such cases where offence is punishable with punishment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.
A copy of this judgment shall be forwarded to the Chief Secretaries as also the Director Generals of Police of all State Governments and the Union Territories and the Registrar General Of all High Courts for onward transmission and ensuring its compliance.