Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. LeamedASG suggested that there must be some preliminaiy inquiry on the lines ofobservations inLa/itaK11mari versus Government of Uttar Prades/1 7. Arrest of a relative .other than husband could only be after pennission from the concerned Magistrate. There should be no arrest of relatives aged above 70 years, Power of the.police to straight G away arrest must be prohibited. While granting permission, the court must ascertain that there is prima facie material of the accused having done some overt and covert act. The offence should be made· compoundable and bailable. The role of each accused must be specified in the complaint and the complaint must be accompanied by a signed 1 (20I4J 2 sec 1 RAJESH SHARMA & ORS. v. STATE OF U.P. & ANR. {ADARSH KUMAR GOEL, J.) affidavit. The copy of the preliminary enquiry report should be furnished to the accused.
12. Shri V. Giri, learned senior counsel assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker submitted that arrest in an offence under Section 498A should be only after recording reasons and express approval from t.he Superintendent of Police. In respect of relatives who are ordinarily residing outside India, the matter · should proceed only if,the IO is convinced that arrest is necessary for fair investigation. ,Jn sbch cases .impouriding of passport or issuance of red comer notice.should be avoided. Proc,>edure u~<:\er Section 14 of the Protection of Won1en from Domestic Violence Act, 2005, of counseling should be mad~ i;ri'andatory before registration of a case under Section C
13. We have given serious consideration to the rival submissions as well as suggestions made by learned ASG and Shri V. Giri, Senior Advocate assisted by Advocates Ms. Uttara Bab bar, Ms. Pragya Baghel and Ms. Svadha Shanker. We have also perused 243'd Law Commission D Report (August, 2012), 140'h Report of the Rajya Sabha Committee on Petition (September, 2011) as well as several decisions to which our attention has been invited.
14. Section 498A was inserted in the statl\te with the laudable object of punishing cruelty at the hands of husband or his relatives against . a wife pai1icularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand.8 It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed · in the heat of the moment over trivial issues. Many of such complaints G are not bona fide. At the time offilip.g of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the 'Explanation to Section 498A c complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted9• The matter also appears to have been considered by the Law Commission, the Malimath Committee, tbe Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the Judgment. The abuse of the provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled for arrests. Reconm1endation has also been made by the Law Commission to make the offence compoundable.
15. Following areas appear to require remedial steps:- i) Uncalled for implication of husband and his relatives and arrest. ii) Continuation of proceedings in spite of settlement between the parties .since the offence is non-compoundable and uncalled for hardship to parties on that account.
16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable. to Just and fair procedure being part of fundamental right to life, 11 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or tmreasonablc. The court has incidental power to quas]l. even a non-compoundable case of private nature, if continuing the. proceedings is fmmd to be oppressive. 12 Whilt; stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.
17. We have considered the background of the issue and also taken into account the 243'd Report of the Law Commission dated 9 Precti Gupta (supra) '"Sahara India Real Estate Corporation Limited v. Securities and Exdrnngc Board of india (20 I2) IO SCC 603- para 52, SCBA v. Union of India (I 99&) 4 sec 409- para 47. Union of India vs. Raghubir Singh (d) by Lrs. ( 1989) 2 sec 754- para 7. Dayaram vs. Sudhir Batham (2012) I sec 333 I' State of Punjab vs. Dalbir Singh (2012) 3 SCC 346- para 46,52 & 85, (2014) 4 sec 453- para-2 I "Gian Singh vs. State of Punjab (20I 2) IO SCC 303- para-6I, (20 I4) 5 SCC 364-para -I4 RAJESH SHARMA & ORS. v. STATE OF U.P, & ANR. {ADARSH KUMAR GOEL, J.] 30' 11 August, 2012, 140° 1 Report of the Rajya Sabha Committee on Petiti.ons (September, 2011) and. earlier decisions of this Court.. We are conscious of the object for which the provision 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.
18. To remedy the situation, we are ~fthe view that involvement of civil society in the aid of administration ofjustice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessa1y to facilitate c!.osure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.
19. Thus, after careful consideration of the whole issue, we consider it fit to give following directions:- i) (a)In eyery district one or more.Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three 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 Chainnan of the District Legal Services Authority. (b) 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. (c) The Committee members will not be c.alled as witnesses. (d) Every complaint under Sectiori 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. · (e) Report of such committee be given to th~ Authority by whom G the complaint is refen:ed to it latest within one month from the date ofreceipt of complaint.
(f) The committee may give its brief report about the factual aspects and its opinion in the matter. i (2017] 9 S.C.R. (g) Till report of the committee is received, no arrest should normally be effected. (h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit. (i) 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. c (j) The Members of the committee may be given such honorarium as may be considered viable. (k) lt will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate.
The training may be completed within four months from today; iii) 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; iv} !fa bail application is filed with at least one clear day's notice to the Public Prosecutor/complainant, the same may be decided as far as possible 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; v) In respect of persons ordinarily residing out oflndia impounding of passports or issuance of Red Corner Notice should not be a routine; vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases RAJESH SHARMA & ORS. v. STATE OF U.P. & ANR. {ADARSH KUMAR GOEL, J.] between the parties arising out of matrimonial disputes so that a A holistic view is taken by the Court to whom all such cases are entrusted; and vii) Personal appearance of all family members and particularly outstation members may not be required and the tri~}_ court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial. viii) These directions will not apply to the ciffe11ces involving tangible physical injuries or death. 'J
20. After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018.
21. Copies of this order be sent to Natipnal Legal Services . D Authority, Director General of Police of all the States and the Registrars of all the High Courts for further appropriate action.
22. It will be open to the parties in the present case to approach the concerned trial or other comi for further orders in the light of the above directions. Kalpana K. Tripathy DircCtions issued.