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No Arrest During 2 Months' Cooling-Off Period After FIR Registration: Allahabad HC Issues Safeguards Against S. 498A Misuse

Sparsh Upadhyay
14 Jun 2022 2:07 PM GMT
Habeas Corpus, Pleas, Exert Pressure, Police, Speed Up Investigation, Allahabad High Court,

Allahabad High Court on Monday issued certain guidelines/safeguards to prevent the misuse of Section 498A of the Indian Penal Code (IPC).

One of the guidelines issued by the Court states that after the registration of a First Information Report (FIR) under 498A IPC, no arrest or coercive action should be taken against the accused during the cooling-off period of two months.

During this period, the Court has ordered that the issue should be referred to a Family Welfare Committee (FWC). It may be noted Section 498-A punishes a woman's husband or his relatives if they subject her to cruelty.

While issuing the safeguards, the Bench of Justice Rahul Chaturvedi was of the view that the traditional fragrance of our age-old institution of marriage would completely evaporate over a period of time if gross and unmindful misuse of section 498-A IPC would keep on happening rampantly.

The case in brief

Essentially, the Court was hearing revision petitions filed by 3 persons (in-laws of the complainant) challenging an order of the Sessions court rejecting their discharge applications in connection with an offence registered against them including various sections of IPC including Section 498A.

This FIR had been lodged by the wife against her husband and in-laws, wherein she alleged, inter alia, that his father-in-law wanted to have sexual favors from her, and not only this, but her brother-in-law also have tried to ravish her physically.

She also alleged that her husband used to lock her in the bathroom after taking away her mobile phone and her mother-in-law and sister-in-law pressurized her to get aborted. On making their refusal, all the family members became physical with her.

It was further alleged that a constant demand was made for additional dowry and on her refusal, she was assaulted brutally by fists and kicks and maltreated and humiliated to its optimum.

Court's observations

At the outset, taking into account the story narrated in the FIR by the wife, the Court said that the FIR was not only abhorring, but full of dirt, filth, and venomous accusations against her own husband and in­laws.

"The graphic and vivid descriptions of the incident without any shame or hitch of any sort, speaks out the volume of mental condition and amount of venom and poison in the mind of the informant. She without mincing any word, rather exaggerating the incident to manifolds, had committed the snide before the Court," the Court remarked.

Further, the Court found no fault with the order of the lower court discharging the accused as the Court was of the view that the wife/victim had been unable to substantiate allegations made by her even at the time of investigation and these allegations were found false.

The Court also recorded its strongest exception to the type of language used by the informant in the FIR.

"The language of the FIR should be a decent one and no amount of atrocities faced by the informant would justify her to use such type of caustic expressions. FIR/complaint is the gateway of any criminal case even soft and decent expression would well communicate the alleged atrocities faced by her," the Court said.

Consequently, the revision petitions of the in-laws were allowed, however, Husband's revision plea was rejected.

Now, regarding the misuse of Section 498A IPC by the wife, the Court opined that nowadays, every matrimonial case is being exaggerated manifold with all the pungent and caustic allegations of dowry-related atrocities involving the husband and all family members

Thus, assessing the totality of the circumstances, object and the allegation of misuse of Section 498A IPC, the Court went on to propose the safeguards after taking the guidance from the judgment of the Apex Court in the case of Social Action Forum for Manav Adhikar Vs. Union of India with a view to keep the growing tendency in the masses to nail the husband and all family members by a general and sweeping allegations.

  • (i)No arrest or police action to nab the named accused persons shall be made after lodging of the FIR or complaints without concluding the "Cooling-Period" which is two months from the lodging of the FIR or the complaint. During this "Cooling-Period", the matter would be immediately referred to Family Welfare Committe(hereinafter referred to as FWC) in the each district.
  • (ii)Only those cases which would be transmitted to FWC in which Section 498-A IPC along with, no injury 307 and other sections of the IPC in which the imprisonment is less than 10 years.
  • (iii)After lodging of the complaint or the FIR, no action should take place without concluding the "Cooling-Period" of two months. During this "Cooling-Period", the matter may be referred to Family Welfare Committee in each districts.
  • (iv)Every district shall have at least one or more FWC (depending upon the geographical size and population of that district constituted under the District Legal Aid Services Authority) comprising of at least THREE MEMBERS. Its constitution and function shall be reviewed (25) periodically by the District & Sessions Judge/Principal Judge, Family Court of that District, who shall be the Chairperson or Co-chairperson of that district at Legal Service Authority.
  • (v)The said FWC shall comprise of the following members :- (a) a young mediator from the Mediation Centre of the district or young advocate having the practices up to five years or senior most student of Vth year, Government Law College or the State University or N.L.Us. having good academic track record and who is public spirited young man, OR; (b) well acclaimed and recognized social worker of that district having clean antecedant, OR; (c) retired judicial officers residing in or nearby district, who can devote time for the object of the proceeding OR; (d) educated wives of senior judicial or administrative officers of the district.
  • (vi)The member of the FWC shall never be called as a witness.
  • (vii)Every complaint or application under Section 498A IPC and other allied sections mentioned above, be immediately referred to Family Welfare Committee by the concerned Magistrate. After receiving the said complaint or FIR, the Committee shall summon the contesting parties along with their four senior elderly persons to have personal interaction and would try to settle down the issue/misgivings between them within a period of two months from its lodging. The contesting parties are obliged to appear before the Committee with their four elderly persons (maximum) to have a serious deliberation between them with the aid of members of the Committee.
  • (viii)The Committee after having proper deliberations, would prepare a vivid report and would refer to the concerned Magistrate/police authorties to whom such complaints are being lodged after expiry of two months by inserting all factual aspects and their opinion in the matter.
  • (ix)Continue deliberation before the Committee, the police officers shall themselves to avoid any arrest or any coercive action pursuant to the applications or complaint against the named accused persons. However, the Investigating Officer shall continue to have a peripheral investigation into the matter namely preparing a medical report, injury report, the statements of witnesses.
  • (x)The said report given by the Committee shall be under the consideration of I.O. or the Magistrate on its own merit and thereafter suitable action should be taken by them as per the provision of Code of Criminal Procedure after expiry of the "Cooling-Period" of two months.
  • (xi)Legal Services Aid Committee shall impart such basic training as may be considered necessary to the members of Family Welfare Committee from time to time(not more than one (26) week).
  • (xii)Since, this is noble work to cure abrasions in the society where tempos of the contesting parties are very high that they would melow down the heat between them and try to resolve the misgivings and misunderstandings between them. Since, this is a job for public at large, social work, they are acting on a pro bono basis or basic minimum honrarium as fixed by the District & Sessions Judge of every district.
  • (xiii)The investigation of such FIRs or complaint containing Section 498A IPC and other allied sections as mentioned above, shall be investigated by dynamic Investigating Officers whose integrity is certified after specialized training not less than one week to handle and investigate such matrimonal cases with utmost sincerity and transparancy.
  • (xiv)When settlement is reached between the parties, it would be open for the District & Sessions Judge and other senior judicial officers nominated by him in the district to dispose of the proceedings including closing of the criminal case.

Case title - Mukesh Bansal v State of UP


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