Officiallythick

Through the Looking Glass part1

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

Lawmaker Manu's oft-quoted statement, that women are not worthy of freedom, exhaustively underscores the Indian Paradigm that was sought to be negated by the legislature, when it set out to pass the Criminal Law (Second Amendment) Act No. 46 of 1983, introducing for the first time, to a nation seemingly never full of dowry deaths and cruelty to married women, Section 498A the debutante in a code which lacked the intrinsic aspect of protection to the hapless victim of marriage in a patriarchal society. The 20th century had been the Dark Age for women the world over, who had been subjected to different standards than men. They had been consistently oppressed in nearly all aspects of life, from political to personal, public to private. Women were always a weaker section of the society, which denied them basics such as education, nutrition and expression. Consequently, marriage too weighed against them; statistical testimonies being the number of dowry-related harassment and domestic violence cases that are on record from that era.

Section 498A of the IPC defined a new cognizable offence, namely, cruelty by husband or relatives of husband. It is directed against the husband and/or his relative, who is guilty of the offence of subjecting the wife of such husband to cruelty, and can be invoked by such wife, or daughter-in-law, or her relative, against the offenders. The term cruelty has been given a wide berth, a protectively, non-evasive connotation in the explanation to the section, and includes both forms physical as well as mental. The offence is non-bailable, non-compoundable and cognizable on a complaint made to the police officer by the victim or by designated relatives.

The legislatures bona fide attempt in re-asserting, through the passage of the aforesaid provision, a womans right to be treated with due care and respect, has been successful in its own right. It is only now that women are learning to use the laws put in place for their protection. This law has laid the foundation for the demand of a civil law to protect women and children. Domestic violence has since 1983 been recognised as a crime and also constitutes a considerable part of the workload of police, prosecutors and the courts.

However, 498A in leading the pack of Indian 'women-protection laws', and in assuming that wives are always honest victims of marital wrath, therefore requiring no proof of their claims before initiating action against the accused, quite unwittingly overlooks the possible emergence of a reverse trend in the aforesaid scenario. The victim turning into the abuser!

The section, today, has metamorphosized into a unilateral and indefeasible weapon in the hands of married women, which can be easily abused if intended. The scope and limitations of the section have not been defined and demarcated which makes the situation worse. Many instances have come to light where the complaints are not bona fide and have been filed with an oblique motive.

POLICE PROCEDURES: FIRST IN LINE FOR THE SCANNER!

No arrest can be made because it is lawful for the Police Officer to do so.

Offences are divided into cognizable and non-cognizable. By law, the police are duty bound to register and investigate a cognizable offence. 498A is a cognizable offence. S.498A was intended, by the legislature, to be invoked by way of private complaint to the Judicial Magistrate First Class or the Metropolitan Magistrate, who will take cognizance of the complaint, if it is found to be up to his judicial satisfaction, and issue summons to the opposite party, directing them to apply for bail. Nowhere in this scheme, does a clause of unconditional arrest book a place. But evidently, the Police has pushed to the backward recesses of the systems memory, the fact that the existence of the power to arrest is one thing, while the justification for its exercise is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. No arrest can be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person''s complicity and even as so as to the need to effect arrest. A person is not liable to arrest merely on the suspicion of complicity in an offence. It is not imperative that in each and every cognizable offence, the accused must be arrested merely because an F.I.R. has been lodged against him. The officer in charge, if comes to the conclusion that there is no sufficient ground for entering on an investigation, shall not proceed to investigate the allegations made in the report, and in such a situation, he shall inform accordingly to the informant.

Thus even a special women-oriented law like the 498A itself, is untenable where statistics such as the one indicating arrest of 30,000 innocent women annually based solely on the F.I.R lodged by a living tortured daughter-in-law or sister-in-law, are concerned. The law was not designed as ultra vires the constitution, and never was its true implementation intended to give way to any such defence of the section.

If any special treatment need be given to the said section, it shall touch upon the fact that S.498A unlike regular penal laws is a matrimonial law. Levying of other penal sections in addition to S.498A is a sure indicator of abuse of the process to cause arrest for ulterior motives. This additional levying causes a repetition of charges, because the said section is not entirely bereft of the elements of dowry demand. This is a clear abuse of police powers to arrest, by abetting the woman and her side to authoritatively implement her ulterior design to commit extortion in the garb of a prosecution for cruelty.

COMPOUNDING OF NON-COMPOUNDABLE OFFENCES

Based on whether a criminal complaint can be withdrawn, and investigations against the opposite party compromised to give effect to private settlement between parties to the complaint, offences under the penal code are divided into compoundable and non-compoundable offences. S.498A is a non-compoundable offence under the code. An offence under S.498A or any other offence under the Code which is not specifically enumerated in Section 320 of the Code cannot be compounded by the apex court in exercise of its powers under Section 320 and by High Court in exercise of its inherent powers under Section 482 of the Code.

However in a recent case of the Bombay High Court, it was added to this position of law, that, the inherent powers under Section 482 of the Code include powers to quash FIR, Investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. These powers are neither limited nor curtailed by any other provisions of the Code including Section 320 of the Code. The Court could exercise this power in offences of any kind, whether compoundable or non-compoundable. However, such inherent powers are to be exercised sparingly and with caution. Further, the Court should ensure that object and purpose of passing any order in exercise of its inherent powers should be confined to one of the three categories stated in Section 482 of the Code.

This fresh observation may be supplemented with the legislatures intention to not apply ordinary judicial procedure to the sensitive area of personal relationships. Litigation concerning or involving affairs of the family, therefore, seems to require a special approach in view of the serious emotional aspects involved.

A Division Bench of The Bombay High Court relying upon the judgment of the Supreme Court in B.S. Joshi''s case and expanding the principles of socio-welfare interpretation to the provisions of the Code, has thus ruled that the decision of the Supreme Court gives powers to the High Court to permit compounding of matrimonial offences and the High Court has powers to quash the criminal proceedings, FIR or complaint.

For the woman armed with skewed intentions though, and coupled with the executives inclination towards rampant abuse of police powers, as detailed under the preceding sub-heading, this newfound judicial activism serves as the perfect artillery to avenge and extort. Where the courts are allowing the withdrawal of the case when the parties agree to reconcile or settle case, in real terms it amounts to the fact that if you pay up, the case goes away, if you dont you will get stuck with a criminal case that will go on for years. Every year, close to 4,000 innocent senior citizens are arrested under IPC Section 498A. Many retired elders have been ill treated, thrown out of their own homes and deprived of their meager means of sustenance by greedy or vengeful daughters-in-law. A visit to the Crime Against Women Cell shall reveal hoards of Men and their relatives being tortured by the legal machinery at the behest of women.
Thus we are witnessing an era of misconstruction at its best, of the meaning and implication to be given to the compounding of this matrimonial offence.