1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1265 OF 2017

[Arising out of Special Leave Petition (Crl.) No.2013 of 2017]

Rajesh Sharma & ors. …Appellants

Versus

State of U.P. & Anr. …Respondents

J U D G M E N T

Adarsh Kumar Goel, J.

1.Leave granted.

2.The question which has arisen in this appeal is whether any

directions are called for to prevent the misuse of Section 498A, as

acknowledged in certain studies and decisions. The Court

requested Shri A.S. Nadkarni, learned ASG and Shri V.V. Giri,

learned senior counsel to assist the Court as amicus. We place on

record our gratitude for the assistance rendered by learned ASG

Shri Nadkarni and learned senior counsel Shri Giri who in turn was

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ably assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel

and Ms. Svadha Shanker.

3.Proceedings have arisen from complaint dated 2

nd

December, 2013 filed by respondent No.2 wife of appellant No.1.

Appellants 2 to 5 are the parents and siblings of appellant No.1.

The complainant alleged that she was married to appellant No.1

on 28

th

November, 2012. Her father gave dowry as per his

capacity but the appellants were not happy with the extent of the

dowry. They started abusing the complainant. They made a

demand of dowry of Rs.3,00,000/- and a car which the family

could not arrange. On 10

th

November, 2013, appellant No.1

dropped the complainant at her matrimonial home. She was

pregnant and suffered pain in the process and her pregnancy was

terminated. On the said version, and further version that her

stridhan was retained, appellant No.1 was summoned under

Section 498A and Section 323 IPC. Appellants 2 to 5 were not

summoned. Order dated 14

th

July, 2014 read as follows:

“After perusal of the file and the document brought on

record. It is clear that the husband Shri Rajesh Sharma

demanded car and three lacs rupees and in not meeting the

demand. It appears that he has tortured the complainant.

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So far as torture and retaining of the stri dhan and

demanding 50,000 and a gold chain and in not meeting the

demand the torture is attributable against Shri Rajesh

Sharma. Rajesh Sharma appears to be main accused. In

the circumstances, rest of the accused Vijay Sharma,

Jaywati Sharma, Praveen Sharma and Priyanka Sharma

have not committed any crime and they have not

participated in commission of the crime. Whereas, it

appears that Rajesh Sharma has committed an offence

under Section 498A, 323 IPC and read with section 3 / 4 DP

act appears to have prima facie made out. Therefore, a

summon be issued against him.”

4.Against the above order, respondent No.2 preferred a

revision petition and submitted that appellants 2 to 5 should also

have been summoned. The said petition was accepted by the

Additional Sessions Judge, Jaunpur vide order dated 3

rd

July, 2015.

The trial court was directed to take a fresh decision in the matter.

Thereafter, the trial court vide order dated 18

th

August, 2015

summoned appellants 2 to 5 also. The appellants approached the

High Court under Section 482 CrPC against the order of

summoning. Though the matter was referred to the mediation

centre, the mediation failed. Thereafter, the High Court found no

ground to interfere with the order of summoning and dismissed

the petition. Hence this appeal.

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5.Main contention raised in support of this appeal is that there

is need to check the tendency to rope in all family members to

settle a matrimonial dispute. Omnibus allegations against all

relatives of the husband cannot be taken at face value when in

normal course it may only be the husband or at best his parents

who may be accused of demanding dowry or causing cruelty. To

check abuse of over implication, clear supporting material is

needed to proceed against other relatives of a husband. It is

stated that respondent No.2 herself left the matrimonial home.

Appellant No.2, father of appellant No.1, is a retired government

employee. Appellant No.3 is a house wife. Appellant No.4 is

unmarried brother and appellant No.5 is unmarried sister who is a

government employee. Appellants 2 to 5 had no interest in

making any demand of dowry.

6.Learned counsel for respondent No.2 supported the

impugned order and the averments in the complaint.

7.Learned ASG submitted that Section 498A was enacted to

check unconscionable demands by greedy husbands and their

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families which at times result in cruelty to women and also

suicides. He, however, accepted that there is a growing tendency

to abuse the said provision to rope in all the relatives including

parents of advanced age, minor children, siblings, grand-parents

and uncles on the strength of vague and exaggerated allegations

without there being any verifiable evidence of physical or mental

harm or injury. At times, this results in harassment and even

arrest of innocent family members, including women and senior

citizens. This may hamper any possible reconciliation and reunion

of a couple. Reference has been made to the statistics from the

Crime Records Bureau (CRB) as follows:

“9. That according to Reports of National Crime

Record Bureau in 2005, for a total 58,319 cases

reported under Section 498A IPC, a total of 1,27,560

people were arrested, and 6,141 cases were

declared false on account of mistake of fact or law.

While in 2009 for a total 89,546 cases reported, a

total of 1,74,395 people were arrested and 8,352

cases were declared false on account of mistake of

fact or law.

10. That according to Report of Crime in India, 2012

Statistics, National Crime Records Bureau, Ministry of

Home Affairs showed that for the year of 2012, a

total of 197,762 people all across India were arrested

under Section 498A, Indian Penal Code. The Report

further shows that approximately a quarter of those

arrested were women that is 47,951 of the total were

perhaps mother or sisters of the husband. However

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most surprisingly the rate of charge-sheet filing for

the year 2012, under Section 498A IPC was at an

exponential height of 93.6% while the conviction rate

was at a staggering low at 14.4% only. The Report

stated that as many as 3,72,706 cases were pending

trial of which 3,17,000 were projected to be

acquitted.

11. That according to Report of Crime in India, 2013,

the National Crime Records Bureau further pointed

out that of 4,66,079 cases that were pending in the

start of 2013, only 7,258 were convicted while

38,165 were acquitted and 8,218 were withdrawn.

The conviction rate of cases registered under Section

498A IPC was also a staggering low at 15.6%.”

8.Referring to Sushil Kumar Sharma versus Union of

India

1

, Preeti Gupta versus State of Jharkhand

2

, Ramgopal

versus State of Madhya Pradesh

3

, Savitri Devi versus

Ramesh Chand

4

, it was submitted that misuse of the provision is

judicially acknowledged and there is need to adopt measures to

prevent such misuse. The Madras High Court in M.P. No.1 of 2008

in Cr. O.P. No.1089 of 2008 dated 4

th

August, 2008 directed

issuance of following guidelines:

“It must also be borne in mind that the object behind the

enactment of Section 498-A IPC and the Dowry Prohibition

1 (2005) 6 SCC 281

2 (2010) 7 SCC 667

3 (2010) 13 SCC 540

4 ILR (2003) I Delhi 484

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Act is to check and curb the menace of dowry and at the

same time, to save the matrimonial homes from destruction.

Our experience shows that, apart from the husband, all

family members are implicated and dragged to the police

stations. Though arrest of those persons is not at all

necessary, in a number of cases, such harassment is made

simply to satisfy the ego and anger of the complainant. By

suitably dealing with such matters, the injury to innocents

could be avoided to a considerable extent by the

Magistrates, but, if the Magistrates themselves accede to the

bare requests of the police without examining the actual

state of affairs, it would create negative effects thereby, the

very purpose of the legislation would be defeated and the

doors of conciliation would be closed forever. The husband

and his family members may have difference of opinion in

the dispute, for which, arrest and judicial remand are not the

answers. The ultimate object of every legal system is to

punish the guilty and protect the innocents.”

9.Delhi High Court vide order dated 4

th

August, 2008 in

Chander Bhan versus State

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in Bail Application No.1627/2008

directed issuance of following guidelines :

“2. Police Authorities:

(a)Pursuant to directions given by the Apex Court, the

Commissioner of Police, Delhi vide Standing Order

No.330/2007 had already issued guidelines for arrest in the

dowry cases registered under Sections 498-A/406 IPC and

the said guidelines should be followed by the Delhi Police

strictly and scrupulously.

(i) No case under Section 498-A/406 IPC should be

registered without the prior approval of DCP/Addl.DCP.

(ii)Arrest of main accused should be made only after

thorough investigation has been conducted and with the

prior approval of the ACP/DCP.

5 (2008) 151 DLT 691

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(iii)Arrest of the collateral accused such as father-in-law,

mother-in-law, brother-in-law or sister-in-law etc. should only

be made after prior approval of DCP on file.

(b)Police should also depute a well trained and a well

behaved staff in all the crime against women cells especially

the lady officers, all well equipped with the abilities of

perseverance, persuasion, patience and forbearance.

(c)FIR in such cases should not be registered in a routine

manner.

(d) The endavour of the Police should be to scrutinize

complaints very carefully and then register FIR.

(e)The FIR should be registered only against those

persons against whom there are strong allegations of

causing any kind of physical or mental cruelty as well as

breach of trust.

(f)All possible efforts should be made, before

recommending registration of any FIR, for reconciliation and

in case it is found that there is no possibility of settlement,

then necessary steps in the first instance be taken to ensure

return of stridhan and dowry articles etc. by the accused

party to the complainant.”

10.In Arnesh Kumar versus State of Bihar

6

, this Court

directed as follows :

“11.1All the State Governments to instruct its police officers

not to automatically arrest when a case under Section 498-A

of the IPC is registered but to satisfy themselves about the

necessity for arrest under the parameters laid down above

flowing from Section 41, Cr.PC;

11.2All police officers be provided with a check list

containing specified sub-clauses under Section 41(1)(b)(ii);

6 (2014) 8 SCC 273

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11.3The police officer shall forward the check list duly filed

and furnish the reasons and materials which necessitated the

arrest, while forwarding/producing the accused before the

Magistrate for further detention;

11.4The 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;

11.5The 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;

11.6Notice of appearance in terms of Section 41A of Cr.PC

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;

11.7Failure 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 of court to be instituted before High Court

having territorial jurisdiction.

11.8Authorising detention without recording reasons as

aforesaid by the judicial Magistrate concerned shall be liable

for departmental action by the appropriate High Court.”

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11.Learned ASG suggested that there must be some preliminary

inquiry on the lines of observations in Lalita Kumari versus

Government of Uttar Pradesh

7

. Arrest of a relative other than

husband could only be after permission from the concerned

Magistrate. There should be no arrest of relatives aged above 70

years. Power of the police to straight away arrest must be

prohibited. While granting permission, the court must ascertain

that there is prima facie material of the accused having done

some overt and covert act. The offence should be made

compoundable and bailable. The role of each accused must be

specified in the complaint and the complaint must be

accompanied by a signed affidavit. The copy of the preliminary

enquiry report should be furnished to the accused.

12.Shri V. Giri, learned senior counsel assisted by advocates Ms.

Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker

submitted that arrest in an offence under Section 498A should be

only after recording reasons and express approval from the

Superintendent of Police. In respect of relatives who are

ordinarily residing outside India, the matter should proceed only if

7 (2014) 2 SCC 1

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the IO is convinced that arrest is necessary for fair investigation.

In such cases impounding of passport or issuance of red corner

notice should be avoided. Procedure under Section 14 of the

Protection of Women from Domestic Violence Act, 2005, of

counseling should be made mandatory before registration of a

case under Section 498A.

13.We have given serious consideration to the rival submissions

as well as suggestions made by learned ASG and Shri V. Giri,

Senior Advocate assisted by Advocates Ms. Uttara Babbar, Ms.

Pragya Baghel and Ms. Svadha Shanker. We have also

perused 243

rd

Law Commission Report (August, 2012), 140

th

Report of the Rajya Sabha Committee on Petition (September,

2011) as well as several decisions to which our attention has been

invited.

14.Section 498A was inserted in the statute with the laudable

object of punishing cruelty at the hands of husband or his

relatives against a wife particularly when such cruelty had

potential to result in suicide or murder of a woman as mentioned

in the Statement of Objects and Reasons of the Act 46 of 1983.

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The expression ‘cruelty’ in Section 498A covers conduct which

may drive the women to commit suicide or cause grave injury

(mental or physical) or danger to life or harassment with a view to

coerce her to meet unlawful demand.

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It is a matter of serious

concern that large number of cases continue to be filed under

Section 498A alleging harassment of married women. We have

already referred to some of the statistics from the Crime Records

Bureau. This Court had earlier noticed the fact that most of such

complaints are filed in the heat of the moment over trivial issues.

Many of such complaints are not bona fide. At the time of filing of

the complaint, implications and consequences are not visualized.

At times such complaints lead to uncalled for harassment not only

to the accused but also to the complainant. Uncalled for arrest

may ruin the chances of settlement. This Court had earlier

observed that a serious review of the provision was warranted

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.

The matter also appears to have been considered by the Law

Commission, the Malimath Committee, the Committee on

Petitions in the Rajya Sabha, the Home Ministry, which have been

referred to in the earlier part of the Judgment. The abuse of the

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Explanation to Section 498A

9 Preeti Gupta (supra)

13

provision was also noted in the judgments of this Court referred to

earlier. Some High Courts have issued directions to check such

abuse. In Arnesh Kumar (supra) this Court gave directions to

safeguard uncalled for arrests. Recommendation has also been

made by the Law Commission to make the offence

compoundable. 15.Following areas appear to require remedial

steps :-

i)Uncalled for implication of husband and his relatives

and arrest.

ii)Continuation of proceedings in spite of settlement

between the parties since the offence is

non-compoundable and uncalled for hardship to parties

on that account.

16.Function of this Court is not to legislate but only to interpret

the law. No doubt in doing so laying down of norms is sometimes

unavoidable.

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Just and fair procedure being part of fundamental

right to life,

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interpretation is required to be placed on a penal

provision so that its working is not unjust, unfair or unreasonable.

The court has incidental power to quash even a

10

Sahara India Real Estate Corporation Limited v. Securities and Exchange

Board of India (2012) 10 SCC 603- para 52, SCBA v. Union of India (1998) 4 SCC 409- para

47, Union of India vs. Raghubir Singh (d) by Lrs. (1989) 2 SCC 754- para 7, Dayaram vs.

Sudhir Batham (2012) 1 SCC 333

11

State of Punjab vs. Dalbir Singh (2012) 3 SCC 346- para 46,52 & 85, (2014) 4

SCC 453- para-21

14

non-compoundable case of private nature, if continuing the

proceedings is found to be oppressive.

12

While stifling a

legitimate prosecution is against public policy, if the proceedings

in an offence of private nature are found to be oppressive, power

of quashing is exercised.

17.We have considered the background of the issue and also

taken into account the 243

rd

Report of the Law Commission dated

30

th

August, 2012, 140

th

Report of the Rajya Sabha Committee on

Petitions (September, 2011) and earlier decisions of this Court.

We are conscious of the object for which the provision was

brought into the statute. At the same time, violation of human

rights of innocent cannot be brushed aside. Certain safeguards

against uncalled for arrest or insensitive investigation have been

addressed by this Court. Still, the problem continues to a great

extent.

18.To remedy the situation, we are of the view that involvement

of civil society in the aid of administration of justice can be one of

the steps, apart from the investigating officers and the concerned

12 Gian Singh vs. State of Punjab (2012) 10 SCC 303- para-61, (2014) 5 SCC

364- para -14

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trial courts being sensitized. It is also necessary to facilitate

closure of proceedings where a genuine settlement has been

reached instead of parties being required to move High Court only

for that purpose.

19.Thus, after careful consideration of the whole issue, we

consider it fit to give following directions :-

i)(a)In every district one or more Family Welfare

Committees be constituted by the District Legal

Services Authorities preferably comprising of three

members. The constitution and working of such

committees may be reviewed from time to time

and at least once in a year by the District and

Sessions Judge of the district who is also the

Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of

para legal volunteers/social workers/retired

persons/wives of working officers/other citizens

who may be found suitable and willing.

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(c) The Committee members will not be called as

witnesses.

(d) Every complaint under Section 498A

received by the police or the Magistrate be

referred to and looked into by such committee.

Such committee may have interaction with the

parties personally or by means of telephone or

any other mode of communication including

electronic communication.

(e) Report of such committee be given to the

Authority by whom the complaint is referred to it

latest within one month from the date of receipt of

complaint.

(f) The committee may give its brief report about

the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no

arrest should normally be effected.

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(h) The report may be then considered by the

Investigating Officer or the Magistrate on its own

merit.

(i) Members of the committee may be given such

basic minimum training as may be considered

necessary by the Legal Services Authority from

time to time.

(j) The Members of the committee may be given

such honorarium as may be considered viable.

(k) It will be open to the District and Sessions

Judge to utilize the cost fund wherever considered

necessary and proper.

ii)Complaints under Section 498A and other

connected offences may be investigated only by a

designated Investigating Officer of the area. Such

designations may be made within one month from

today. Such designated officer may be required to

undergo training for such duration (not less than

one week) as may be considered appropriate. The

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training may be completed within four months

from today;

iii)In cases where a settlement is reached, it will be

open to the District and Sessions Judge or any

other senior Judicial Officer nominated by him in

the district to dispose of the proceedings including

closing of the criminal case if dispute primarily

relates to matrimonial discord;

iv)If a bail application is filed with at least one clear

day’s notice to the Public Prosecutor/complainant,

the same may be decided as far as possible on the

same day. Recovery of disputed dowry items may

not by itself be a ground for denial of bail if

maintenance or other rights of wife/minor children

can otherwise be protected. Needless to say that

in dealing with bail matters, individual roles, prima

facie truth of the allegations, requirement of

further arrest/ custody and interest of justice must

be carefully weighed;

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v)In respect of persons ordinarily residing out of

India impounding of passports or issuance of Red

Corner Notice should not be a routine;

vi)It will be open to the District Judge or a designated

senior judicial officer nominated by the District

Judge to club all connected cases between the

parties arising out of matrimonial disputes so that

a holistic view is taken by the Court to whom all

such cases are entrusted; and

vii)Personal appearance of all family members and

particularly outstation members may not be

required and the trial court ought to grant

exemption from personal appearance or permit

appearance by video conferencing without

adversely affecting progress of the trial.

viii) These directions will not apply to the offences

involving tangible physical injuries or death.

20. After seeing the working of the above arrangement for six

months but latest by March 31, 2018, National Legal Services

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Authority may give a report about need for any change in above

directions or for any further directions. The matter may be listed

for consideration by the Court in April, 2018.

21.Copies of this order be sent to National Legal Services

Authority, Director General of Police of all the States and the

Registrars of all the High Courts for further appropriate action.

22.It will be open to the parties in the present case to approach

the concerned trial or other court for further orders in the light of

the above directions.

…………………………………….J.

(Adarsh Kumar Goel)

…………………………………….J.

(Uday Umesh Lalit)

New Delhi;

27

th

July, 2017.