Jammu And Kashmir High Court Frames Guidelines To Curb Unnecessary Arrests; No Automatic Arrests In Section 498A Cases

It is definitely a matter of deepest concern especially for men who are newly married and his relatives including his parents of facing all of a sudden, unanticipated and unprovoked arrest by the police in cases of Section 498A of the Indian Penal Code (IPC) culminating in huge mental torture, financial torture, physical torture of […]

It is definitely a matter of deepest concern especially for men who are newly married and his relatives including his parents of facing all of a sudden, unanticipated and unprovoked arrest by the police in cases of Section 498A of the Indian Penal Code (IPC) culminating in huge mental torture, financial torture, physical torture of being compelled to spend a long time in jail without doing anything wrong in so many cases due to which we see now a days that many High Courts and even the Supreme Court also have taken strongest note of such brazen, brutal and blind application of laws meant for protection of women being used for oppression of men and his relatives which has sent a clear signal now that no longer can it be allowed to go on unnoticed, unchecked and unaccounted and also cannot be condoned at all under any circumstances. I very strongly feel that whenever a case of dowry turns out to be false, woman and those who helped file her case must be imprisoned so that the rampant misuse of Section 498A does not go unpunished. This is the only best way to check the blatant misuse of Section 498A of IPC.
It definitely cannot be glossed over by anyone that one after the other we see that different High Courts and so also the Apex Court are raising their most serious concern on the gross abuse of Section 498-A of IPC to the extent that Calcutta High Court even went to the extent in its judgment titled Swapan Kumar Das vs State of West Bengal & Anr in CRR No. – 2455 of 2018 with CRR No. – 2864 of 2018 that was pronounced as recently as on August 21, 2023 to observe unequivocally that, “The legislature has enacted the provision of Section 498A to strike out the dowry menace from the society. But it is observed in several cases that by misusing of said provision new legal terrorism is unleashed.” I am most ashamed, most aghast, most astonished and most appalled to read recently such cases one after the other! It is high time and Centre must at least now take some inspiration from this most learned judgment and amend our penal laws to make it a punishable and non-bailable offence if a woman files false cases under Section 498A of IPC before enacting the latest penal laws which have been amended by Centre but are yet to come into effect! This will definitely act as a strong deterrent to a women to refrain from indulging in legal terrorism only if a fixed jail term of at least an year is strictly imposed on her if she dares to lodge a false case! This brooks no more delay any longer!
It must be asked: How long will men only be made a scapegoat compelled to suffer immensely, immeasurably and indefinitely because of draconian Sections like 498A of IPC? It cannot be an endless wait for innocent men made to suffer for being born as a men! No denying it! When Centre can amend our penal laws and inspite of such amendments if no punishment is provided to women who lodges false FIR and false cases against men, his parents and their relatives then what is the point of amending penal laws and hailing it as “a revamp of our laws”? In other words, the overhaul in penal laws can serve their true purpose only when such rampant abuse of laws misused openly many times by women and her relatives is most strictly punished so that no one is able to dare indulge in “legal terrorism” as pointed out recently by none other than the Calcutta High Court itself which is the oldest High Court of India!
While flagging the rampant and gross misuse of Section 498-A of IPC, the Indore Bench of Madhya Pradesh High Court in its learned, laudable, landmark and latest judgment titled Rajan Vs The State of Madhya Pradesh in Misc. Criminal Case Nos. 35596/2018 & 16764/2019 that was reserved on August 3, 2023 and then finally pronounced on August 17, 2023 has commented most sharply on the gross misuse of Section 498A pertaining to cruelty to women of the IPC observing without mincing any words that, “Nowadays there is a “package of five cases” being filed by the wife against the husband and his family members in family court and the criminal court under IPC, the Hindu Marriage Act and the Protection of Women from Domestic Violence Act, 2005.” The Single Judge Bench comprising of Hon’ble Mr Justice Vivek Rusia has added that Section 498A of the IPC, which is meant to punish cruelty by a husband or his relatives, is being misused nowadays as also observed by several High Courts and the Supreme Court. It must be mentioned here that the Court was hearing applications to quash a first information report (FIR) accusing a husband and his relatives of the offence under Section 498A IPC (husband or relative of husband of a woman subjecting her to cruelty) and causing hurt.
It certainly deserves mentioning that the Court ultimately quashed this criminal case finding no substance in the serious charges and termed it as a case of “reverse cruelty” upon the accused. While observing that the complainant-woman was residing abroad while pursuing criminal cases against family members in India, the Judge lamented that, “Now a day it is very common for the husband and wife to reside or do jobs outside of India and their parents are made to suffer in India by way of criminal or matrimonial litigation.” The FIR was registered by a woman against her husband, father-in-law, mother-in-law and husband’s sister-in-law.
Most recently, we saw how even the High Court of Jammu and Kashmir and Ladakh in a most latest notification No. 2539 of 2023/RG that was issued on October 23, 2023 has framed guidelines on arrest, detention and bail of persons accused in criminal cases to check the rampant abuse and curb unnecessary arrests and automatic arrests in Section 498A cases. This will definitely go a long way in checking the unnecessary arrests that have become so rampant in last so many decades yet till some time back went on rampantly. It must be clarified here that the directions so issued are applicable to all criminal cases where the offence alleged is punishable with an imprisonment term that could extend upto seven years, with or without a fine.
It is clearly mentioned that, “Acting in compliance to the directions of the Hon’ble Supreme Court of India in its order dated 31.07.2023 in the case titled Md. Asfak Alam vs State of Jharkhand Cr. Appeal No 2207 of 2023, the High Court of Jammu & Kashmir and Ladakh hereby notifies the directions contained in the said judgment as Guidelines on Arrest, Detention and Bail of accused, for the guidance of the Magistrates and the Criminal Courts subordinate to the High ·court of Jammu & Kashmir and Ladakh. The said Guidelines are enumerated as under;-
1. Both the Governments of Union Territory of Jammu & Kashmir and Union Territory of Ladakh to instruct its police officers not to automatically arrest accused when a case under Section 498-A Indian Penal Code 1860, is registered but to satisfy themselves about the necessity for arrest under parameters laid down and flowing from Section 41 CrPC;
2. All the police officers be provided with the check list containing specified sub-clauses under Section 41(1)(b)(ii);
3. The police officers shall forward the check list dully filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention.
4. The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for· the reasons to be recorded in writing.
7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt to be instituted before High Court.
8. Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the High Court.
9. The aforesaid directions shall not only apply to case under Section 498- A IPC or Section-4 of the Dowry Prohibition Act, but also to such other cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.
By order of the Hon’ble High Court.”
All in all, it is a no-brainer that these commendable guidelines that have been framed by Jammu and Kashmir High Court definitely deserves unadulterated appreciation which must be emulated by all the High Courts in India and these commendable guidelines that have been issued by the notification as mentioned above will definitely go a long way in ensuring that law meant for the safety of women is not misused as a weapon of oppression in the hand of women to brutally suppress men and his relatives! This will go a long way to ensure abuse of laws as the top court in Md Asfak Alam case had called for authorities to refrain from making unnecessary arrests. The Jammu and Kashmir High Court also while cautioning has made it indubitably clear that any failure to comply with these guidelines would render the errant police officers liable for departmental action and also for contempt of court and similarly concerned judicial magistrate would also be liable for authorising detention without recording reasons for departmental action by the High Court.
Undoubtedly, these guidelines deserves to be implemented most strictly and it is high time that Centre which is in process of amending penal laws must make mandatory jail term for those women and her relatives who lodge false complaints to harass, humiliate and harangue men without any fault of theirs! This definitely cannot be now kept in the backburner any longer!