The Supreme Court has directed the setting up of district level Family Welfare Centres to scrutinise and investigate complaints by a wife of cruelty by the husband or his family before a First Information Report (FIR) can be lodged. The FIR is the initial step which kick-starts the criminal justice machinery. The judgment seems largely based on the premise of misuse of the provision Section 498-A of the Indian Penal Code (IPC) dealing with cruelty to wife by the husband or his relatives.
In a way the paradigm of misuse versus use is a false debate. There cannot be much doubt that there are bound to be some persons who misuse the Section 498-A IPC provision. We would be hard put to find a provision which is not misused by some, but perhaps the provision giving power of arrest to the police may take the top ranking as the most ‘misused’ provision in all criminal cases. In fact, no less a body than the National Police Commission which included C.V. Narsimhan, former Director Central Bureau of Investigation, N.S. Saxena, former director general of the Central Reserve Police Force and K.F. Rustomji, a former Director General of the Border Security Force, found that two-thirds of the arrests by the police were unjustified.
The Apex Court’s concern that husbands, in-laws and sundry relatives are needlessly roped in and arrested is laudable. However, the species of arrests in cruelty to wife cases are part of the larger genus of arrests of persons in criminal cases. The routine action of the police in arresting a person against whom a FIR is registered is wrong in law. The presumption of innocence, the burden of proof on the prosecution to establish guilt before liberty can be curtailed is the very heart of criminal jurisprudence. All these go for a six at the detention of a person who is not convicted of any offence. Evidence be damned the process is the punishment!
The law mandates the curtailment of life and liberty of an individual in certain specific circumstances like the threat of tampering with evidence, influencing witnesses through threats, coercion or inducements and the possibility of the absconding of the accused person. These circumstances have to be established by supporting material before a person against whom allegations of having committed an offence have been made before effecting arrest.
Taking the serious problem of misuse of the power of arrest on board, an amendment was made in the Criminal Procedure Code, 1973 in 2009 and section 41 (1)(b) (ii) was introduced in the Code laying down safeguards. The section provides that a police officer who has reason to believe or suspicion that a person has committed an offence must satisfy himself that the arrest is necessary to prevent from committing any further offence; for proper investigation of the offence; to prevent such person from causing evidence to disappear or tampering with evidence; to prevent such person from making any inducement, threat or promise or that unless arrested his presence in court cannot be ensured. As a further measure of accountability and scrutiny the provision mandates the recording of the reasons for arrest or non-arrest in writing.
The first step would seem to be finding out whether these safeguards are being followed in letter and spirit. In case the Supreme Court found that these requirements are being followed, and yet are not enough to prevent the misuse of the power of arrest then avenues could have been explored in all criminal cases.
Personal laws vary according to religion or the particular customs of a community. However, criminal jurisprudence is uniformly applicable to all. Setting up of categories within criminal law and laying down different procedures is anathema and carving out exceptions is hazardous. The Supreme Court in its wisdom has in the case of medical negligence by doctors already carved out an exception that the matter is not to proceed without independent and competent medical opinion in the case of Jacob Mathew (Dr.) vs. State of Punjab III (2005) CPJ 9 (SC) (Criminal Appeal. Once the window of exceptions is opened, lawyers can demand that no case be registered without the expert independent opinion of fellow lawyers, engineers can lobby that in cases of building collapse and death, a FIR cannot be registered without certification of negligence by an engineer.
There is no denying that the adversarial paradigm fulcrum of Anglo-Saxon jurisprudence compounds matrimonial disputes in some cases. In Couples Counselling to facilitate amicable settlement - in the face of a clutch full of on-going cases between the parties - divorce case by husband; criminal case under Section 498 A; domestic violence case under the Protection of Women from Domestic Violence Act, 2005 and a maintenance case under the CrPC , we confront every day the realities of the adversarial system.
However, tampering with the basic structure of the criminal-justice system and setting up District Family Counselling Centres by the Supreme Court comprised of para legal volunteers/ social workers/retired persons/wives of working officers/other citizens to investigate and scrutinize may not be a way forward. In a similar proposal the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016 had set up District Anti-Trafficking Committees comprised of the District Collector and representatives of the Government departments as well as two social workers and the rescued persons were to be produced before these bodies. The Bill further provided that a person rescued can be produced before the District Anti-Trafficking Committee by in addition to a police officer, by any public servant or social worker or public spirited citizen. The proposed provisions in the Bill clearly seem in violation of the fundamental rights to be produced before a magistrate and right to a legal practitioner. Measures such as these whether by the judiciary or legislature or executive also seem an invitation to those often referred to by courts as busy bodies and interlopers as well as offer space for full play of the biases, prejudice and stereotypes of the individuals adorning such District Anti-Trafficking Committees and Family Counselling Centres.
The CrPC confers the powers to summon, investigate, search and collect evidence on police officers. Delay is fatal any criminal investigation. Collection of evidence, possibilities of tampering with evidence, influencing witnesses, risk of absconding all hinge on speed. A hiatus of one month before even the first step of the FIR can be taken does not seem to portend well for the avenue chosen by the Apex Court to solve the very real issues in matrimonial disputes as well as the problems of unnecessary and unjustified arrests by the police causing harassment and violation of rights.
Rakesh Shukla is an Advocate practising in the Supreme Court of India and Consultant, International Psychoanalytical Association Committee of Psychoanalysis and Law.
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