Sec.498A IPC : Only HC Can Quash Cases On Settlement

Sec.498A IPC : Only HC Can Quash Cases On Settlement; A Third Agency Created By Courts Can’t Exercise Statutory Functions: SC 

The directions issued by a two-judges bench in Rajesh Sharma v. State of UP to regulate the purported misuse of Section 498A IPC were modified by a three-judges bench of SC today.

In Rajesh Sharma, it was held that Family Welfare Committees should be constituted at every districts by District Legal Services Authority. The complaints of domestic violence under Section 498A IPC were directed to be vetted by the Committee first. It was also held that  the police can carry out investigation and arrest only on the basis of report by the Committee.

These directions issued by the bench of Justice A K Goel and Justice U U Lalit in clause 19(i) of the Rajesh Sharma were wholly struck down by the three judges bench of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud. The Court held that Family Welfare Committee was an extra-judicial authority, which cannot exercise powers and functions of police and court. The Court expressed that the directions were contrary to the scheme of Code of Criminal Procedure, and held that they had the  “potential to enter into the legislative field”. Hence, it was held that “the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework”

“The core issue is whether the Court in Rajesh Sharma (supra) could, by the method of interpretation, have issued such directions. On a perusal of the directions, we find that the Court has directed constitution of the Family Welfare Committees by the District Legal Services Authorities and prescribed the duties of the Committees. The prescription of duties of the Committees and further action therefor, as we find, are beyond the Code and the same does not really flow from any provision of the Code”, held the Court.

It was added that there were enough statutory provisions and judgments in place to check abuse of the provision.“…there are statutory provisions and judgments in the field and, therefore, the directions pertaining to constitution of a Committee and conferment of power on the said Committee is erroneous”

Only HC Can Quash FIR/Complaint On Settlement.

Another direction in the Rajesh Sharma enabled District/Sessions Judge to quash FIR/Complaint on settlement between the parties. The District/Sessions Judge was also enabled to nominate any other senior judicial officer to pass orders of quashing. This direction in clause 19(iii) of Rajesh Sharma read as follows :

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.

This did not find favour with the three-judges bench. It was held that Section 498A IPC was a non-compoundable offence. Therefore, only High Courts had the power to quash the case on the basis of mutual settlement, as held in Gian Singh case

“The directions to settle a case after it is registered is not a correct expression of law. A criminal proceeding which is not compundable can be quashed by the High Court under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC and the High Court, considering the bonafide of the petition, may quash the same. The power rests with the High Court.”

Other Directions Not Disturbed.

At the same time, it is significant to note that the other directions in Rajesh Sharma were left undisturbed by the three judges bench. The Court approved the direction in Rajesh Sharma that red corner notices and impounding of passports in cases of accused staying abroad should not be done in a routine manner. The Court also agreed that recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC. Therefore, directions in clauses 19(iv) and 19(v) were endorsed.

As regards direction in clause 19(vii) which held that personal appearance of the accused should not be insisted and that video conferencing should be resorted to, the Court held that appropriate applications seeking exemption from personal appearance, either under Section 205 CrPC or Section 317 CrPC ,depending upon the stage of case, should be filed.

Police To Be Sensitised.

The Court noted that the police has to act as per the provisions of Section 41 Cr.P.C, and also the judgements of the Supreme Court in Arnesh Kumar , Lalita Kumari, D K Basu and Joginder Kumar cases before making arrests for offences under Section 498A IPC.

In Arnesh Kumar, the Court had held that arrest for offence under Section 498A IPC has to be made only in exceptional circumstances, that too after recording special reasons in writing in accordance with Section 41(1)(b) CrPC.  In Lalita Kumari, a Constitution Bench held that Police has to carry out preliminary enquiry before registration of FIR in respect of matrimonial disputes. Joginder Kumar exhorted that police should not carry out arbitrary arrests and D K Basue laid down procedural guidelines to be followed by police while arresting.

“we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest. ” 

Genesis Of The Case.

The judgment of the three-judges bench came in a writ petition filed in 2015 by an NGO , Social Action for Manav Adhikar, seeking to create a uniform system of monitoring and  reviewing incidents of violence against women under Section 498-A IPC  and rehabilitation of the victimsand their children at the Central, State and District levels. That apart, it also sought for directions  to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC.

During the pendency of the petition, the directions in Rajesh Sharma came to be passed on July 27, 2017. After that, another PIL was filed in SC, seeking a direction that two out of three members of the Family Welfare Committees directed to be constituted as per Rajesh Sharma should be women. When the PIL was mentioned before the bench of Chief Justice on October 13,2017, the bench expressed prima facie disapproval of Rajesh Sharma directions.  The bench then observed :

At this stage, we are obligated to state that we are not in agreement with the decision rendered in Rajesh Sharma (supra) because we are disposed to think that it really curtails the rights of the women who are harassed under Section 498A of the Indian Penal Code. That apart, prima facie, we perceive that the guidelines may be in the legislative sphere.

The Court appointed Indu Malhotra, then Senior Advocate and now Supreme Court judge, and V Shekhar, Senior Advocate, as amicus curiae to assist the matter, and proceeded to re-consider the directions.

Both the amicus opined that the Court went overboard by issuing directions in Rajesh Sharma
Full Judgment