Anti-Dowry Law, SC say no Arrest till Charges

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The top court has raised its concern over “abuse” of the anti-dowry law and has also said that no arrest “should be affected” without authenticating allegations as a violation of human rights of innocents can’t be swept aside. The Supreme Court, however, which passed a bundle of guidelines to cope with grievances under section 498 A (subjecting a married woman to cruelty) of the IPC, including the constitution of family welfare committees in all districts, has witnessed that lots of such issues aren’t bonafide and “uncalled for arrest” may mess up the probability of settlement.

It mentioned that the top court had earlier witnessed a serious impression of the provision was warranted and sometimes, such issues led to uncalled harassment by not only the charged but also of the complainant. “We are conscious of the object for which the provision (498 A of the IPC) was brought into the statute. At the same time, violation of human rights of the 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,” a bench of Justices Adarsh Kumar Goel and U U Lalit said.

The apex court, on the other hand, directed that in every district, one or more family welfare committees be constituted by the District Legal Services Authorities (DLSA) and each one issue received by police or the magistrate under this provision be described and investigated by the committee. The bench also said that the constitution and working of such committee, which would ideally be composed of three members, may be evaluated every once in a while and at least once in 12 months by the District and Sessions Judge of the district affair. The bench, however, added that such committees should be constituted of para legal volunteers, social workers, retired persons, wives of working officers and other people who may be established ideal and willing.

Adding to it, the bench said that the committee members wouldn’t normally be called as witnesses in such instances and the panel could have a discussion with the parties, involved with such cases, individually or by another method of communication. The bench added that “Report of such committee be given to the authority by whom the complaint is referred to its latest within one month from the date of receipt of the complaint. The committee may give its brief report about the factual aspects and its opinion in the matter. Till report of the committee is received, no arrest should normally be affected”. The committee’s report may then be looked at by the investigating officer or the magistrate on its own merit, it added.

“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. The members of the committee may be given such honorarium as may be considered viable. It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper,” the bench added. However, the court said that the problems under this provision and other linked to offenses may be probed only by way of a designated investigating officer of that area plus they may be asked to undergo training as a result of this.

It said, “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 the closing of the criminal case if dispute primarily relates to matrimonial discord.” The bench, however, also expressed that in case a bail plea is registered in such subject, it may be made the decision so far as possible on a one day’s notice to the public prosecutor or the complainant. “Recovery of disputed dowry items may not by it is 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, the prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed,” it added.

It added that regarding people residing out of India, the procedure of impounding of passports or issuance of Red Corner Notice must not a routine. The Supreme Court, however, added that personal attendance of all family members and specifically outstation members may well not be needed and the trial court has to give exemption from personal attendance or permit appearance by video conferencing without badly impacting on the progress of the trial. On the other hand, it managed to get clear that “these directions will not apply to the offenses involving tangible physical injuries or death”. And the top court has asked the National Legal Services Authority (NALSA) to provide a report about any requirement of change, if yes, in the guidelines or for just about any further guidelines and listed the issue as a concern in April 2018.

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