Sanjeev Kumar & Others vs State Of U.P. & Others
2011 Latest Caselaw 573 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 46
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 3322 of 2010
 

 
Petitioner :- Re: In the matter of Matrimonial Disputes.
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- 
 
Respondent Counsel :- Govt. Advocate,
 

 
Hon'ble Amar Saran,J.

Hon'ble Arvind Kumar Tripathi,J.

This petition is in the nature of a Public Interest Litigation which has been assigned to this bench by order of the Chief Justice. We have heard Shri D.R. Chaudhary, learned Government Advocate on behalf of State of U.P, the Director General of Police, UP and the Principal Secretary (Home) UP, Shri Ashok Mehta, who is the Organizing Secretary of the Mediation Centre of the Allahabad High Court, Shri Pankaj Naqvi and Sister Sheeba Jose on behalf of the intervenor, the NGO

"Sahyog" and Ms. G. Sridevi, the Secretary of the UP Legal Services Authority and have perused the affidavits and other documents filed by the parties in this case.

At the outset, we must record our appreciation of the positive pro bono support that has been given to this Court by the aforesaid counsel and the parties in this pious cause, which attempts to bring about reconciliation between the disputing spouses at the preliminary stage, before full scale criminal proceedings could be instituted by the wife against the husband and his family members in offences under section 498-A IPC, ¾ of Dowry Prohibition Act and other allied offences.

Learned Government Advocate has drawn our attention to a very significant circular dated 13.10.2010 issued by the Director General of Police (DGP). This circular notes that a new provision, section 498-A IPC was enacted in 1983 for putting a check on dowry related offences and other acts of cruelty by the husband and other family members of married women. It provides for punishment extending to 3 years and fine. The offence was made cognizable and non-bailable.

The circular further mentions that the new provision was welcomed by society, but it was also found that it was being misused. Criminal prosecution under this provision were used for settling personal agendas which arose out of momentary disputes between spouses, without looking to the long term consequences. Entire families including minor school going brother and sisters, grandchildren, unmarried and married sisters-in law were roped in and faced prospect of arrests. In the eventuality of an arrest, the possibility of future reconciliation between the parties was diminished and family life was disturbed. Therefore, the Apex Court, the High Courts and the Government of India had been issuing directions from time to time for checking the misuse of section 498-A IPC. In this background the DGP issued the following two directions:

1.In matters under section 498-A IPC arrest of the accused should only be effected when it was imperative and unavoidable as observed by the Hon'ble Supreme Court in the case of D.K. Basu Vs. State of W.B., decided on 18.2.1996. The procedure for arrest should only be given effect to after efforts for bringing about mediation, counselling or conciliation between the parties had failed.

2.In such matters, before initiation of proceeding under section 498-A IPC, an effort should first be made for bringing about reconciliation between the parties by conciliation, counselling or mediation and only after the failure of the re-conciliation proceedings, when it appeared that an offence under section 498-A IPC or another provision was made out on the facts of the case, only then legal proceedings should be initiated. Counselling, conciliation etc. should be got done by professional educated advisors in the women's crime cells.

We wish to record our appreciation for the stance taken by the DGP and the highly salutary nature of the circular issued by him on 13.10.10. We hope that the concerned police authorities will follow it in letter and spirit.

The Apex Court after noticing the positive features and need for this provision for given protection to women who have been subjected to cruelty during marriage has also drawn attention to its potential for misuse, when for momentary disputes or for oblique reasons entire families are roped in. It has also called on the members of the Bar to check misuse of this provision, and not to file exaggerated complaints and to first endeavour to bring about reconciliation between the parties so that families are saved and there is peace in society. Even a short stint in jail drastically reduces the chance of compromise. The legislature and law commission have also been called upon to consider bringing about pragmatic changes in the related provisions for furthering the aforesaid objectives.

Thus in Preeti Gupta v State of Jharkhand, AIR 2010 SC 3363, in paragraphs 30 and 31 it has been observed:

"30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

31.The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases."

Paragraph 18 in Sushil Kumar Sharma v Union of India, AIR 2005 SC 3100 also reads as follows:

"18. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provisions a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin's weapon. ?....."

In this background we further direct that dowry related cases or offences under section 498-A IPC, which are of minor nature involving no injuries or minor injuries, and where there has been no repetition of cruelty and no other special features exist for denying the benefit we recommend, the court concerned could consider releasing the accused persons on interim bail even on their personal bonds. This practice of releasing accused persons on interim bail on their appearance pending consideration of their regular bail pleas subsequently in some special classes of matters such as those involving matrimonial disputes and other minor matters has been approved by the Apex Court in Lal Kamlendra Pratap Singh v State of U.P. (2009) 4 SCC 437, the Full Bench of this Court in Amrawati and another v. State of U.P., 2005 Cri.L.J. 755, and a division bench of this Court in Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781. Thereafter the Magistrate concerned may try and bring about reconciliation between the parties either by himself, or in districts where some agency exists for bringing about mediation, conciliation or counselling, through the said agency.

In cases where the Magistrate is not himself engaged in trying to bring about reconciliation between the parties, where Mediation/ Conciliation or counselling of the couples and their family members has been undertaken by some other agency, the said agency must report the fact of failure or success of the mediation/ conciliation etc. within a week of the conclusion of the exercise.

Only when the Magistrate comes to the conclusion that the efforts for mediation or conciliation between the parties has failed, he may pass orders on the bail plea of the various accused persons on merit. By complying with these general directions the undue pressure on the High Court requiring filing of individual writ petitions, in cases where reports under section 498 A IPC are filed against husbands or other family members, causing a huge backlog of arrears, leaving little time for the High Court to deal with murder appeals and other major matters, would be considerably reduced.

In case the parties have settled their disputes and there is no prospect of conviction the Investigating officer may consider the appropriateness of initiating criminal proceedings, if it has not so far been initiated in a particular case or of submitting a final report. The trying Magistrate may also consider passing appropriate orders at the trial accordingly.

In Ramgopal v State of M.P., 2010 (7) SCALE 711 the Apex Court has suggested to the Central Government and to the Law Commission to consider making offences under section 498-A IPC compoundable and bailable. Similar suggestions were given by a division bench of this Court in Rajeev Verma v State of U.P., 2004 Cri.L.J 2956, in which one of us (Amar Saran J) was a member, to the Law Commission of U.P to consider recommending that the said offence could be made compoundable with the permission of the Court under section 320 Cr.P.C.

We would like the Secretary (Law) U.P., to give a response of the State government to this suggestion for making the said offences compoundable and/ or bailable.

We would also like feed back from the concerned Magistrates through the district judges on the advisability or difficulties in complying with the aforesaid directions to bring about mediation/ conciliation between the parties, such as absence of trained mediators/ conciliators, or lack of space, infrastructure or any other major difficulties for carrying out mediation between the parties. The matter may also be discussed in the monthly meetings of the district judges with the concerned administrative and police authorities, and the results may be communicated to this Court hearing the present PIL on the next date as also on subsequent dates, so that appropriate directions may be issued where needed.

Sri Mehta informs that the Allahabad High Court Mediation and Conciliation Centre (AHCMCC) has already conducted an awareness programme for spreading awareness about the need for resolving such disputes by mediation in 38 districts. He further informs that in five districts, Agra, Aligarh, Kanpur, Lucknow and Ghaziabad 40 hours training has been provided by master trainers from NCPC Delhi.

The AHCMCC has also offered to assist the U.P. State Legal Services Authority (UPSLSA) in providing two days preliminary training for conducting mediation in matrimonial disputes to 10 to 25 Advocates in the district court with fifteen years standing who enjoy a good reputation. We hope that the UPSLSA will act on the AHCMCC's offer for immediately initiating a two day programme for district Court lawyers at Allahabad, and also for getting such a training programmes conducted by master trainers of the AHCMCC in a phased manner, first in the remaining 38 U.P. districts where the awareness programme was conducted, and thereafter in all U.P. Districts. We would also like the State government to fully support this programme which is a priority for the State, and can prove an effective means for reducing pendency in Courts, and for bringing about peace and tranquility in family life and in society. Good NGOs and social organizations working on women's and family issues (such as the intervenor in the present case) could also be involved in this process of mediation, conciliation and counselling. We would like feed back from the UPSLSA, the AHCMCC and the State government (through the Principal Secretaries, Home and Law) as to what concrete steps they propose to take to provide training to mediators at the District Courts and how the process of mediation and conciliation at the district and tahsil levels in such matters can be made more effective.

We would also like the DGP to spell out on the next date as to what measures they propose to initiate for starting the process of mediation and conciliation with the accused husband and his family members when an aggrieved woman or her family member approaches the police station with a complainant of cruelty or dowry harassment. It was suggested by various counsel who appeared in this case that counselling should not take place at the police stations, which lack the proper atmosphere for mediation and either the matter should be referred to the agencies for mediation and conciliation in the Courts, and where unavoidable it should be conducted at a neutral place such as the police lines, or SSP/SP's office in the district headquarters or in the C.O.'s office or tahsil office etc. in the tahsils which are at a considerable distance from district headquarters. The help of volunteer lawyers or lawyers appointed by Legal Services Authority, and reputed NGO's, social organizations and individuals working on women and family issues, preferably who have received training in mediation, conciliation or counselling could be utilized for this purpose at various places. In this connection the Secretary UPSLSA has informed us that 10 lawyers in each district and 5 in each tahsil have been appointed for giving legal aid, and trainings in mediation could also be accorded on a priority basis to these lawyers. It was also suggested at the bar that the police officer entitled to facilitate mediation or conciliation should be at least of the rank of a Circle Officer. The State government should also render all help even at stage when the complainant approaches the police station, on the lines suggested above. Police officials being the first point of contact when reports are lodged by the aggrieved wife or her family, if an attempt at reconciliation is made right from that stage and unnecessary arrests are initially avoided as suggested in the DGP's circular dated 13.10.10, it may succeed in nipping the problem in the bud, especially where there are no injuries on the victim and the crime complained about is not so grave, and it is not a repeated offence. It would also help the police officers in being sensitized to the philosophy that crimes arising from matrimonial disputes are of a different nature from regular crimes, and in such offences first an attempt needs to be made for bringing about reconciliation between the parties, and the accused are not to be arrested straight away unless the offence is of grave nature or there is likelihood of recurrence of violence. We would therefore like a response on these suggestions for facilitation of mediation or conciliation at the police level from the DGP, the UPSLSA, the AHCMCC, the State government through the Principal Secretary (Home), U.P. on the next date of listing.

The Registry is directed to forward a copy of this order within a week to the Principal Secretary (Home), U.P., Principal Secretary (Law), U.P., Director General of Police, U.P., Member Secretary, Legal Services Authority, U.P., Organizing Secretary, Mediation Centre, Allahabad High Court, all district Judges in U.P. within a week. A copy of this order may also be given to the Government Advocate and to the intervenors Sri Pankaj Naqvi and Sister Sheeba Jose, Advocates.

List this matter again on 16.5.2011.

Order Date :- 29.3.2011

Ishrat