Officiallythick

Through the Looking Glass part 2

Posted on 05 Jun 2011 by admin | Filled under: criminal

NO-BAIL: A LOST BARGAIN

There are two kinds of offences, bailable and non-bailable. 498A is non bailable. This means that the magistrate has the power to refuse bail and remand a person to judicial or police custody. The process of anticipatory bail, arrest, regular bail, filing of charge sheet, if any, have to follow the registration of an FIR. Given the nature of matrimonial disputes, straightway registering an FIR, which triggers the criminal justice process, can place the parties in an inflexible position and thereafter less inclined to reconcile their differences. Here comes in the notorious Crime Against Women Cell (CAW Cell), which has been notified as a Police station. The complaint, at the stage at which it is referred to the CAW Cell by the police, has not been registered as an FIR. The reference of the complaint to the CAW cell has increasingly gained recognition as supposedly having the effect of postponing the activation of the criminal justice process by facilitating dialogue between the parties with the help of the police. The Supreme Court has in some of its decisions recognized the practice of the police conducting a preliminary enquiry before registering an FIR. Now the CAW cell is not bound to follow the statutory procedure for investigation as under the Criminal Procedure Code, since it is only a pre-enquiry stage. So the cell devises its own methods to identify the nature of offence, collection of evidence and examination of witnesses. Even vague, unspecific or exaggerated allegations bereft of any evidence of any physical or mental harm or injury inflicted upon the woman cater to the cells quest to hound the husbands with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail. Thousands of such complaints and cases are pending and are being lodged day in and day out. Read between the lines, this is the tyranny of corrupt CAW cells. Picture Jasbir Kaur Vs State , where instead of making an effort to bring about amicable settlement between the parties, the cell blackmailed the husband with threats of registering immediately an FIR against him. Leading dailies have been documenting statistical evidence of the number of fake cases before such CAW cells, and yet we have figures such as over 100,000 women being arrested since 2004, u/s 498A!

Losing our reins over the mushrooming CAW cells is one aspect; the other is the sheer abandon of a citizens A.21 right under the constitution. When the basic criterion that whether there is any prima facie evidence to connect the accused with the crime is overlooked, and each time a bail plea is rejected even without giving opportunity of hearing to the defence counsel, it is a sheer violation of the basic principles of natural justice. The amended S.437(2), CrPC lends support to the contention that in deciding the question of grant of bail, the seriousness of the offence is of no consequence unless and until the nexus between the accused and the crime is highlighted by the prima facie evidence.

A RETURN-PATH TOWARDS LAW AND ORDER

The use of S.498A by reading in part or in isolation to each other, of the provisions of the Criminal (Amendment) Act No. 46 of 1983, is resulting in a stark deviance from the literal meaning of the section. Exigent is a reversion to the golden rule of interpretation here. 498A was never developed as a weapon of mass-destruction, but that is what it easily mirrors itself into, the moment the thin line between judicial activism and gross misconstruction of the provision is ignored. To save such ignominy of the well-intended provision, certain authoritative observations, such as the following, may be taken guidance of:

1.The Apex Court has set out in some detail, the categories of cases where the High Court may exercise its power relating to cognisable offences to prevent abuse of process of any court or otherwise to secure the ends of justice. Significant among them are:

1.Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

2.Where a criminal proceeding is manifestly attended with mala fides and where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

3.If for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 of Cr.P.C would not be a bar to the exercise of power of quashing. The court considering the special features of the matrimonial matters, has observed that it is the duty of the court to encourage general settlement of matrimonial disputes U/S 498-A by quashing the criminal proceedings under that section. Further, it would not be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded.

4.An attitude that has the potential to uncover great institutional damage is that justice is required to be done only in the courts. It should instead be taken to be that any and every authority under the statute has to discharge its duties in a just manner, otherwise people will lose faith in the governance. Public authorities should stringently desist from unnecessarily burdening courts by placing before it frivolous and fabricated cases.

5.Section 498A is intended to protect the women from cruelty of husband or his relatives. It has been widely reported that this provision has been misused and is also harsh as it is non-bailable and non-compoundable. It is desirable to provide a chance to the estranged spouse to come together and therefore it is proposed to make the offence under Section 498A IPC, a compoundable one by inserting this Section in the Table under sub section (2) of Section 320 of CrPC, wherein it can be compounded with permission of the Court.However, as has been detailed above, the ordeal does not end at the withdrawal of petition. To treat this malady, an amendment to the effect of making the misuse of the law as a valid ground for divorce, is suggested. Furthermore, all marriages ending up with false dowry cases should not be allowed alimony and child custody.

A cardinal principal of the sentencing policy is that it is better to forgive ten suspected criminals than to punish one innocent person but today, the IPC 498A is powerfully working its way towards uprooting the very foundation of any such Rule of Law.