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Does Karnataka HC judgment allows for DV complaints on wives by husbands?

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The Protection of Women from Domestic Violence Act, 2005, or PWDVA, 2005 or DV Act in short, is very clear on one point.  It is only for protection of women (practically speaking only wives use it) in a household.  The name of the act itself makes it very clear.

Update 28/04/2017: This order has been withdrawn, see end of post for screenshot from Karnataka HC website.

Then this High Court of Karnataka judgment (text below) comes along, which seems to redefine the whole DV Act itself, by suggesting that a complaint filed by husband on wives and in-laws should be considered.  And it refers to this Supreme Court judgment (Harsora vs Harsora) which changed definition of DV Act to allow for respondent to be both male or female.  Following is the excerpt from Karnataka HC  judgment which refers to above SC judgment:

In this connection, it is to be noticed that the said issue was subject matter of an appeal before the Apex Court in the  case  of    Hiral  P.  Harsora  v.  Kusum  Narottamdas Harsora, (2016) 10 SCC 165,        wherein the Supreme Court has struck down a portion of Section 2(a) on the ground that it is violative of Article 14 of the Constitution of India and the phrase “adult male” as appearing in Section 2(q) stood  deleted.  If the said sub-section is read after deleting the expression ‘adult male’, it would appear that any person, whether male or female,  aggrieved  and alleging violation  of the provisions of the Act could invoke the provisions under the Act. In that view of the matter, the petitioner’s complaint could not have been trashed  on  the  ground  that  the  Act  does  not  contemplate provision for men and it could only be in respect of women.

 

That SC judgment though very long in text does a very short and simple thing: it deletes two words “adult male’ from Section 2(q) of PWDVA which was used to define as to against whom a DV complaint could be filed.  It never went into constitutionality of Section 2(a) of DV Act, but only into constitutionality of Section 2(q) which was challenged in front of Supreme Court.  That SC judgment says clearly in beginning:

2. The present appeal arises out of a judgment dated 25.9.2014 of a Division Bench of the Bombay High Court. It raises an important question as to the constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as “the 2005 Act”).

So the Harsora vs Harsora SC judgment was only about constitutionality of Section 2(q) of DV Act.  The final paras of the judgment give detail on what the SC has amended in DV Act:

46. We, therefore, set aside the impugned judgment of the Bombay High Court and declare that the words “adult male” in Section 2(q) of the 2005 Act will stand deleted since these words do not square with Article 14 of the Constitution of India.  Consequently, the proviso to Section 2(q), being rendered otiose, also stands deleted.

Section 2(q) before Harsora vs Harsora judgment:

(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

Section 2(q) after Harsora vs Harsora judgment:

(q) “respondent” means any person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act

That judgment allowed for change in definition in against whom a complaint could be made, and now it includes females also as respondents.  However, it never touched the definition of aggrieved person, who can only be a woman under DV Act.  As per Section 2(a):

(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;

So this Karnataka HC judgment which allows for husband’s DV complaint against wife and in-laws to be considered by referring to above SC judgment is not right in law.  It seems to suggest that SC judgment had changed definition of Section 2(a) whereas that was never even a point raised.   If the point was to be made that it is not morally or constitutionally right to give protection from domestic violence only to women in household, then that argument can be made on its own merits provided the PWDVA Section 2(a) is challenged appropriately of course, but referring to Harsora vs Harsora judgment by SC is not right since that judgment went only into question of whether females can be respondents under DV Act, not whether males can be aggrieved persons who can file complaint under DV Act.

This judgment suggests that one should rely on one’s own reading of law and judgments, and not blindly follow authority.

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Full Judgment text below:
——————————————-

1

IN THE HIGH COURT OF KARNATAKA AT
BENGALURU

TH
DATED THIS THE 18  DAY OF APRIL 2017

BEFORE

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

CRIMINAL PETITION No.2351 OF 2017

BETWEEN:

Mohammed Zakir,
S/o. Shakeel Ahamed,
Aged 36 years,
th
No.23/B, 10  cross,
Kuppaswamy Layout,
Arabic College Post,
Nagawara, Bangalore – 45.
… Petitioner

(By Sri. Tajuddin, Advocate)

AND:

1.     Smt. Shabana,
Ex. W/o. Mohammed Zakir,
D/o. Mohammed Yunus,
Aged about 34 years,

2.     Sri. Parveez,
S/o. Mohammed Yunus,
Age 31 years,

2

3.     Sri. Javeed,
S/o. Mohammed Yunus,
Age 29 Years,

4.     Smt. Nasreen,
W/o. Mohammed Yunus,
Age 54 years,

5.     Sri. Mohammed Yunus,
S/o. Mohammed Hafiz,
Age 58 years,

Respondent Nos. 1 to 5
th
are residing at No.20, 20  Main,
th
5  Phase, Ramaswamy Layout, JP Nagar,
Bangalore -560 078.
… Respondents
(Notice to respondent dispensed with)

This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to quash that this
Hon’ble court may be pleased to set aside the order dated
02.02.2017 passed by the LXVIII Addl. City Civil and Sessions
Judge, Bangalore in Crl.A.No.95/2017 filed to recall the order
dated 25.01.2017 in the Court of Prl. City Civil and Sessions
Judge, Bangalore order dated 04.03.2017.

This Criminal Petition coming on for Admission this day,
the court made the following:

O R D E R

Heard  the  learned  Counsel  for  the  petitioner.    The

petitioner is a Muslim male.  He is aggrieved by certain acts of

3

his  wife  and  her  family  and  therefore  had  invoked  the

provisions  of  the  Protection  of  Women  from  Domestic

Violence Act, 2005 (Hereinafter referred to as the ‘DV Act’, for

brevity).  The court below was not impressed with the same as

the Act clearly is loaded in favour of women only and it does

not contemplate any male person being aggrieved by domestic

violence.  In this connection, it is to be noticed that the said

issue was subject matter of an appeal before the Apex Court in

the  case  of    Hiral  P.  Harsora  v.  Kusum  Narottamdas

Harsora, (2016) 10 SCC 165,        wherein the Supreme Court has

struck down a portion of Section 2(a) on the ground that it is

violative of Article 14 of the Constitution of India and the

phrase “adult male” as appearing in Section 2(q) stood  deleted.

If the said sub-section is read after deleting the expression

‘adult male’, it would appear that any person, whether male or

female,  aggrieved  and alleging violation  of the provisions of

the Act could invoke the provisions under the Act. In that view

of the matter, the petitioner’s complaint could not have been

4

trashed  on  the  ground  that  the  Act  does  not  contemplate

provision for men and it could only be in respect of women.

2.  In that view of the matter, since cognizance was never

taken  by  the  Magistrate  and    process  was  not  issued,  the

question of giving them a right of hearing either by the Sessions

Court or by this Court does not arise.  It is for the Magistrate to

reconsider the case from inception.  On the question whether

the provisions of the DV Act can be invoked by the petitioner

or not is no longer    res integra.   The petition would therefore

have to be entertained.

With that observation, the petition  is allowed.

 

Sd/-
JUDGE

nv

Case status as on 28/04/2017:

20170428-DV-on-wife-CRLP-2351-2017-withdrawn-Karnataka-HC

The post Does Karnataka HC judgment allows for DV complaints on wives by husbands? appeared first on Men Rights India.


How to complain against judges of trial courts, High Courts, and Supreme Court?

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This post is about how to complain against any judge be it trial courts, high courts, or supreme court in India.  Right now it is being written with information collected from various places and based on personal experiences of people, and over time will have authoritative information.  This post however does not cover about bad or unbecoming conduct of a judge outside of a court or trial scenario.

Complain against judge cannot be about a ‘bad’ judgment or order.  For that there is provision of revision, review, or appeal to higher judiciary.

So in what situations can people complain against judges?

Here we can take guidance from similar procedures from other countries’ processes about complaints against judiciary.  E.g. following webpage from UK shows very clear and detailed procedure and on what kind of matters one can complain against a judge’s conduct there.

http://judicialconduct.judiciary.gov.uk/making-a-complaint/what-do-we-need-from-you/

Possible bad or irresponsible conduct of judge

  1. I felt that the judge was rude towards me because? (provide details of exactly what the judge said or did / the language used / actions or behaviour)
  2. I felt that the judge was hostile towards me throughout the hearing. This was demonstrated by? (provide details of body language / actions or attitude / comments or behaviour)
  3. It appeared as if the judge had fallen asleep during the hearing (provide details of supporting evidence such as eyes closed / snoring / did not respond to questions)

Note: Though not hostile, I have experienced judges’ casual or insensitive attitude in making irrelevant or insensitive statements/comments which doesn’t go by norms of what judge is supposed to do in line of judicial duty.  And about point about sleeping, I have seen a judge making great effort not to nap while OP advocate was giving verbal arguments.

Another type of example of irresponsible or non-judicial conduct of judge: It was reported by a husband that judge in a DV Act maintenance case threatened in open court to husband to take back wife or the high interim maintenance order will be given by judge!

The information on above page is quite reasonable, so one can adopt a similar broad format to send complaint and mention as much detail as possible.  Here we might add that though India has inherited many laws and procedural laws from British, you won’t be able to find such clear and detailed information on any official website (later we cover India’s DoJ procedure too) within India.  Simple reason is the mai-baap mind-set in India: we don’t want to complain against mai-baap, because they are the ones who decide our judgment, fate, salary, promotion, reward, punishment, whatever.

Also, from a veteran of many court proceedings, along with complaint sworn affidavit is mandatory. 

From another UK government website:

https://www.gov.uk/complain-judge-magistrate-tribunal-coroner

You can complain if you’re unhappy with a judge, magistrate, tribunal member or coroner’s:

  • behaviour
  • language
  • conduct

You must make your complaint within 3 months.

Just to round up with more information in case readers want to see how it’s happening in UK:

https://www.supremecourt.uk/about/judicial-conduct-and-complaints.html

Where and to whom to send the complaint

Our veteran of many courts has been sending complaints as per jurisdiction below:

1. Subordinate judiciary: Send to Registrar (vigilance), District administrative judge (available from ecourts for my state)

2. HC judges: CJ of HC

3. SC judges: CJI of SC

4. CJ HC: sent to CJI himself(!)

Now for official information: The citizen’s charter PDF file available on below Department of Justice webpage gives several contact information for grievances.  One could contact them over phone/email to find out directly how and where to file complain for a particular jurisdiction/court.

http://doj.gov.in/citizen-charter

Following from their citizen’s charter document:

VISION:
Facilitating administration of Justice that ensures easy access and timely delivery of Justice to all.

MISSION:
Ensuring adequacy of courts and judges, including servicing of appointment of Judges to the higher judiciary, modernization of courts and procedures, policies for judicial reforms and Legal aid to the poor for improved justice delivery.

From the DoJ Guidelines (PDF file), the relevant information about grievances against judiciary has been extracted and given below:

  1. Department of Justice (DOJ) receives large number of grievances from citizens through online CPGRAMS portal and on e.mail of the officers. DoJ also receives grievances through Presidents Secretariat/Vice Presidents Secretariat/PMO/Department of Administrative Reforms & Public Grievances/other Ministries/Departments & also directly. While majority of the grievances are related to judiciary, grievances relating to other Ministries/Departments in the Central Government and pertaining to State Governments/Union Territories are also sent to us. The grievances related to judiciary are handled in the Department of Justice and the grievances pertaining to other Departments/Ministries/State Governments/UTs are forwarded to the offices concerned. The following guidelines relating to disposal of grievances in the Department of Justice are communicated for information/guidance/benefit of grievance holders:
  2. Grievances  related  to  judiciary  are  forwarded  to  the  Secretary General  Supreme  Court  of  India/Registrar  General  of  the concerned High Court for further action, as appropriate.
  3. Any Grievance related to verdicts of the Courts are not handled as a  grievance.    Such  grievance  holders  are  advised  to  seek appropriate legal remedy in the appropriate Court of Law as per rules.  Grievances related to the verdicts of the Courts will be filed in the Department of Justice. Grievances relating to procedure of the Court or matters purely judicial in nature, can be resolved through  Court  of  Law  only.  Such  grievances  will  be  filed  in Department of Justice.
  4. Grievances relating to Judges of Supreme Court are forwarded to the Chief Justice of India and grievances related to Judges of the High Courts are forwarded to Chief Justice of the concerned High Courts for appropriate action.  (As the Judiciary is independent, Government  does  not  ask  for  action  taken  report  nor  sends reminders  to  them.  Grievance  holders  are  advised  to  seek information from the concerned Courts directly in this regard).
  5. Disposal of pending case (s) in court (s) is within the domain of Judiciary, which is an independent organ of the State under the Constitution of India. Government of India does not interfere in the functioning of the Judiciary / proceedings in courts as pendency of a Court Case is subjudice matter which is under consideration of the court.
  6. In case of any grievance relating to undue delay in judgement or unfair judgement or miscarriage of justice, the petitioner is advised to  resort  to  judicial  remedy  by  filing  appeal  or  any  other proceedings  before  the  appropriate  Court  of  Law  within  the prescribed time limit.
  7. As per the guidelines issued by the Supreme Court of India related to grievances/complaints against members of the Subordinate Judiciary, it is clarified that such grievances are to be accompanied with a duly sworn affidavit and verifiable material to substantiate the allegations made therein. Such grievances, alongwith sworn affidavit, need to be sent directly to the Registrar General of the concerned High Court.
  8. The  grievance  holders  are  advised  to  send  the  grievances pertaining to the Supreme Court/High Courts directly to them on the below  mentioned mails in order to expedite disposal of their grievances:

    S.No.  Name of the High Court  e.mail ID
    1.        Supreme Court of India  supremecourt@nic.in
    2.        High Court of Allahabad            rg@allahabadhighcourt.in

    3.        High Court of Tripura              thc.vigilance@gmail.com
    4.        High Court of Gauhati              regv.ghc@gmail.com
    5.        High Court of Kerala               rsjhc.ker@nic.in
    6.        High          Court            of   admn.misc.jhcranchi@gmail.com
               Jharkhand                          vigilancecellscs.jhcranchi@gmail.com
    7.        High          Court            of   rg.ukhc@indiancourts.nic.in
               Uttrakhand

    8.        High          Court            of   rg.mglhc@indiancourts.nic.in
               Meghalaya
    9.        High Court of Delhi                aojestablishment2.dhc@nic.in

    10.       Bombay High Court                  rgsid-bhc@nic.in

    11.       Sikkim High Court                  cpc-sik@nic.in
    12.       Punjab & Haryana High              reg.vig-phc@indianjudiciary.gov.in
               Court

    13.       HP High Court                      arvindm@aij.gov.in
    14.       High          Court            of  vv-hc.cg@gov.in
              Chhattisgarh
    15.       Andhra  Pradesh  High              svsrmoorty@gmail.com
              Court

    16.       Gujarat High Court                 rg-hc-guj@nic.in
    17.       Rajasthan High Court               regadmn-rhc-rj@gov.in
                                                 rajinder.tuteja@aij.gov.in
    18.       Jammu          &     Kashmir       myakhoon@gmail.com
              High Court
    19.       Karnataka High Court               grievance@hck.gov.in
    20.       Patna High Court                   phcgrievance-bih@gov.in
    21.       Madhya  Pradesh  High              usdey15@gmail.com
              Court                              rggrievance@yahoo.com
    22.       Madras High Court                  regrvigil.tn@nic.in
    23.       Manipur High Court                 nd.grievance-hcm@gov.in

    24.       Orissa High Court                  rg.orihc@indiancourts.nic.in
    25.       Calcutta High Court                cpc-cal@indianjudiciary.gov.in
    26.       NALSA                              nalsa-dla@nic.in

  9. Grievances forwarded by Department of Justice are considered and examined by the Judiciary as per their own in house mechanism and the system/procedure to deal with grievances which is normally not shared. In such cases, Department of Justice is not in a position to inform the outcome to grievance holders.
  10. Grievance holders are advised/requested to lodge their grievances on the Public Grievance Portal cpgrams-darpg@nic.in ” only. Since the Government has launched designated portal to receive grievances online, grievances received in the Department of Justice on the email I.Ds of officers will not be entertained.

So complaints can be sent either directly to HC if applicable, or to cpgrams-darpg@nic.in.  Don’t send complaints to individual officers’ email ids.

Following are more links to further information and guidelines:

http://ecourts.gov.in/Ecourtktm16-0

http://ecourts.gov.in/kozhikode/complaints-grievances

http://hareshraichura.blogspot.in/2012/09/how-to-file-complaint-against-sitting.html

The post How to complain against judges of trial courts, High Courts, and Supreme Court? appeared first on Men Rights India.

File RTIs to police for false cases’ prosecution under IPC 182

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According to this recent news, Jaipur police had found over 4206 false/fake cases within one year alone in 2015-16.

http://timesofindia.indiatimes.com/city/jaipur/4206-fake-cases-filed-in-city-last-year/articleshow/56673897.cms

JAIPUR: The Jaipur police have found that 4,206 fake caseswere reported in Jaipur between 2015-16. In most cases, a false complaint was filed with an aim to extort money or defame a person to settle personal scores.

According to a senior police officer, these fake cases included allegations of harassment for dowry, molestation, cheating, and rape. These startling figures surfaces when Prafull Kumar, additional commissioner police (First) asked all DCP offices to provide details about cases where final report (FR) was found to be false.

What is false case from point of view of police?: A B-Final report filed after investigation instead of charge-sheet to court for further trial of accused.  Basically the case gets closed after investigation due to it being considered non-worthy for trial, or outright false.  The report is filed as per procedure under CrPC 173.

The number of false cases being 4206 is huge for a single city in a single year.  The reason seems to be proactive approach of Rajasthan police in registering all cases:

A senior official said that filing FIR in Rajasthan is not an arduous procedure unlike in states like Uttar Pradesh and Bihar. “Rajasthan police immediately registers the FIR in cases related to rape, sexual harassment, molestation and dowry demand, which is a good step. But during subsequent investigation, we found the allegations were made merely to implicate a person in cases in order to extort money,” cops said.

Being proactive in registering FIR is not a bad thing, provided police is proactive in prosecuting those who file these false cases, too.  That is where a major shift seems to be happening, police has been directed to prosecute the complainants under IPC 182.

“We have directed all DCPs to file a legal case against people involved in filing false case under Section 182 (IPC),” Kumar told TOI.

IPC 182 is reproduced below:

———

Section 182. False information, with intent to cause public servant to use his lawful power to the injury of another person

182. False information, with intent to cause public servant to use his lawful power to the injury of another person.— Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant—

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance of any person,

shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Illustrations

(a) A informs a Magistrate that Z, a police-officer, subordinate to such Magistrate, has been guilty of neglect of duty or miscon­duct, knowing such information to be false, and knowing it to be likely that the information will cause the Magistrate to dismiss Z. A has committed the offence defined in this section.

(b) A falsely informs a public servant that Z has contraband salt in a secret place knowing such information to be false, and knowing that it is likely that the consequence of the information will be a search of Z’s premises, attended with annoyance to Z. A has committed the offence defined in this section.

(c) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular village. He does not mention the name of any person as one of his assistants, but knows it to be likely that in consequence of this information the police will make enquiries and institute searches in the village to the annoyance of the villages or some of them. A has committed an offence under this section.

———

Note that clause 182(a) does not even need some harm or annoyance to have been caused to accused etc.  That is part of clause clause 182(b).

This means police can take up complaint against a false case complainant even if no annoyance or harm has been caused to anyone accused in the complaint.

The only problem with IPC 182 is that only police can initiate a prosecution under that section.  Accused cannot initiate it as part of a legal procedure.

#ZeroTolerance4FalseCases: Why prosecuting under IPC 182 is the first basic step?

Since the various government agencies including law enforcement, corporates etc are from time to time stating about their “zero tolerance for crimes against women, sexual harassment”, and so on; maybe it’s time to start the other part of the same campaign: #ZeroTolerance4FalseCases (with hashtag).

Here are some possibilities how things will pan out:

  1. State police all over India will be filing more and more FIRs based on complaints, instead of turning people away.  That is how police in a civilized/democratic country is supposed to work, and it has to get to that level over a period of time.  Or we will remain a democratic country on paper with little to show on ground.  Let’s go with the optimistic scenario.  Filing of FIRs is the stated goal of Supreme Court, high courts, politicians, police themselves, and is already happening to a large extent in crimes against women cases at least.  The workload on police will increase.
  2. Since many people want to take advantage of laxity in false case prosecution, they will file false cases for purpose of extorting money, humiliating someone etc.  That has already been happening, that’s how this site gets so many readers daily!
  3. The workload on police will be more due to these false cases.  Since they divert their time and effort in investigating the false cases, their time and effort from pursuing other duties is reduced. Which would lead to dissatisfaction in public, and complaints against police.
  4. As of now the broad attitude of police is that “our job is to file FIRs”, and let truth be found in the criminal court trial.  That leads to low conviction rate, and again some blame is put on police, but as of now there is no major uproar in public since most Indian government agencies are adept in the art of finger pointing the root cause to some other department, and the public is also used to all those excuses.  So for example, in case of poor conviction rates, police can lay blame on lack of manpower (manpower because we are ‘patriarchalOpen-mouthed smile), bad prosecution by public prosecutor, delays in courts due to which witnesses forget or don’t come to trial after many years, and so on.  The Supreme Court has already issued some advisory on putting onus on police for low conviction rates, that will be part of a separate article about #ZeroTolerance4FalseCases.
  5. It is in interest of public to let all complaints be taken as FIR, and then the false ones be weeded out as B final reports.  The ones which get to charge-sheet and then trial, should have high conviction rates.  The high conviction rates shouldn’t be secured by convicting all the poor/illiterate accused without good defence lawyer, but that is a separate topic by itself.
  6. To avoid wasting time and effort as well escape from bad publicity, police will be forced to prosecute false cases in future.  Because if they create a charge-sheet instead of B final report, it will lead to lower conviction rates due to BOTH false cases leading to zero conviction, and even true cases leading to low conviction because police had wasted time and effort on investigating false cases and creating dubious charge-sheets, so the quality of investigation on true complaints will be poor.  These poor quality charge-sheets will not stand in court.
  7. So if police will be forced to prosecute false cases in future, then it is duty of public to bring that future forward as soon as possible.

Send RTI to police about false cases and number of prosecutions under IPC 182

The simple way this process can be triggered in all States’ police (and not just Jaipur), is to file RTI to PIO (Public Information Officer under RTI Act) of local police station, or PIO of city, region police departments asking about number of B/false final reports, and also how many of these were prosecuted under IPC 182.  The data can be asked for last year or last 3 years.

To find PIO to which RTI has to be sent, one can try google search with “<city> police RTI”, and doing that one can often get the direct link to RTI and PIO related information of the city’s police.  E.g. following page is first result for “Bangalore police RTI”

http://www.bcp.gov.in/rti.aspx

For “Jaipur police RTI”, the 4th result in google search results gives the right information about filing RTI to police in all cities in Rajasthan including Jaipur:

http://jaipurpolice.rajasthan.gov.in/PIO.aspx

It’s not that difficult to find information about PIOs in police, and in case of doubts one can call their numbers too on website to confirm the details like address to send the RTI too.

The post File RTIs to police for false cases’ prosecution under IPC 182 appeared first on Men Rights India.

SC 2017 guidelines on IPC 498A misuse: family welfare committees, designated IO, less arrests/more settlements, easier bail, recovery of articles, personal exemption to family members etc

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A new set of guidelines has been issued by Supreme Court, after a gap of about 3 years from the significant Arnesh Kumar vs State of Bihar judgment which curtailed the abuse of power of arrest by police in IPC 498A (and many other crimes) cases.  This judgment is in line with creating a more settlement oriented culture, where husbands will be encouraged to pay up and get rid of 498A/406 type of cases, and the carrot being given to accused men and their families are: lesser fear of arrests, facing a civil committee rather than dealing with CAW cells, and lesser pain during trials.

I will post full analysis later.  Many people have started proclaiming that this is a path breaking judgment on par with Arnesh Kumar judgment and a further step in right direction, and so on.  However, there is nothing in this judgment which will actually curtail filing of false cases by many women.  All this judgment will lead to is creation of family welfare committees which will be like civil(ized?) versions of CAW (Crimes Against Women) cells, where husbands and their families will have to deal with a committee, than with police directly.  It cannot prevent registration of FIR under 498A/406 etc.  Further there are some good points about bail/recovery, personal exemption from appearance; however all of them are in the nature of guidelines to judges rather than have any mandatory force.  The one reason why Arnesh Kumar judgment was significant was that it laid down penal possibility for both police and magistrates.  It was probably the first time that magistrates’ neck was put on the line from making bad decisions regarding arrest by police.  However, this judgment has no such penal features, which could mean that by the time the results of this judgment show on the ground, it may be time for another judgment by SC on another fresh set of guidelines to prevent IPC 498A misuse!  The more things change, the more they stay the same…

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Full judgment text below:
——————————————-

                                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

                            2

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

and Ms. Svadha Shanker.

 

3.      Proceedings   have   arisen   from   complaint   dated   2nd

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  28th  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   10th   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  July, 2014th 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.
                                                                                                                                       3

        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 3rd  July, 2015.

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

Thereafter, the trial court  vide   order dated 18th   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.

                               
                                                                                                                                      4

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

                                                                                                                                      5

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

                                                                                                                                         6

               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 4th   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

                                                                                                                                        7

        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 4th   August, 2008 in

Chander Bhan versus State(5) 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
                                                                                                                                         8

        (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;

        11.2 All   police   officers   be   provided   with   a   check   list
        containing specified sub-clauses under Section 41(1)(b)(ii);

6               (2014) 8 SCC 273

                                                                                                                                        9

        11.3 The 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;

        11.4 The 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;

        11.5 The 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;

        11.6 Notice 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;

 

        11.7 Failure 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.

 

        11.8 Authorising detention without recording reasons as
        aforesaid by the judicial  Magistrate concerned shall be liable
        for departmental action by the appropriate High Court.”

 

                              10

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

                               

                            11

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 243rd   Law Commission Report (August, 2012), 140th

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.

                           12

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.   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 .

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

 

8                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.   Just and fair procedure being part of fundamental

right to life,   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.      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 243rd  Report of the Law Commission dated

30th  August, 2012, 140th  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

                               

                             15

 

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.

                               

                             16

 

               (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.

                               

                             17

 

               (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

                               

                              18

 

               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;

                               

                              19

 

        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

                               

                             20

 

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;
27th  July, 2017

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Full text of ex-Google engineer James Damore’s memo

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Recently a memo circulated internally within Google which talks about biological differences between men and women explaining some reasons behind their differing representation in technology work, among other things; had gone viral on social media.

https://www.bloomberg.com/news/articles/2017-08-10/fired-google-engineer-says-company-execs-shamed-and-smeared-him

The memo, which was leaked to the public over the weekend, argues that conservative viewpoints are suppressed at Google and that biological differences between men and women explain in part why so few women work in software engineering. Even if someone in Google management had agreed with some of the arguments put forth in his piece, they wouldn’t have felt safe speaking up, he said.

Within few days of it becoming viral, the engineer James Damore who wrote it was fired from Google.

https://www.nytimes.com/2017/08/08/technology/the-culture-wars-have-come-to-silicon-valley.html

That became clear this week after Google on Monday fired a software engineer, James Damore, who had written an internal memo challenging the company’s diversity efforts. The firing set off a furious debate over Google’s handling of the situation, with some accusing the company of silencing the engineer for speaking his mind. Supporters of women in tech praised Google. But for the right, it became a potent symbol of the tech industry’s intolerance of ideological diversity.

james-damore-memo-apple-google-think-different-get-fired

photo credit: http://knowyourmeme.com/photos/1284087-google-manifesto

The memo actually contains many scientific facts and references about differences between men and women – in terms of biology, psychology, motivations with regards to work etc, and it is a good summary of points one needs to be aware of to be able to tackle usual ‘arguments’ about oppression, patriarchy, discrimination of women, glass ceiling etc put forth by the feminists, PC (political correctness) brigade, and the SJW (Social Justice Warriors), cultural Marxists, and pseudo-liberal and libtard crowd.

To follow latest updates from James Damore: https://twitter.com/Fired4Truth

PDF of memo is here: https://medium.com/@Cernovich/full-james-damore-memo-uncensored-memo-with-charts-and-cites-339f3d2d05f

———————————–

Full text of memo below:

———————————–

Google’s Ideological Echo Chamber

 

How bias clouds our thinking about diversity and inclusion

go/pc-considered-harmful
James Damore – damore@
July 2017
Feel free to comment (they aren’t disabled, the doc may just be overloaded).
For longer form discussions see   g/pc-harmful-discuss

Reply to public response and misrepresentation                                        1
TL;DR                                                                                 2
Background                                                                            2
Google’s biases                                                                       2
Possible non bias causes of the gender gap in tech                                    3
Personality differences                                                        4
Men’s higher drive for status                                                  5
Non discriminatory ways to reduce the gender gap                                      5
The harm of Google’s biases                                                           6
Why we’re blind                                                                       7
Suggestions                                                                           8

Reply to public response and misrepresentation
I value diversity and inclusion, am not denying that sexism exists, and don’t endorse using
stereotypes. When addressing the gap in representation in the population, we need to look at
population level differences in distributions. If we can’t have an honest discussion about this,
then we can never truly solve the problem.
Psychological safety is built on mutual respect and acceptance, but unfortunately our culture of
shaming and misrepresentation is disrespectful and unaccepting of anyone outside its echo
chamber.
Despite what the public response seems to have been, I’ve gotten many†personal messages
from fellow Googlers expressing their gratitude for bringing up these very important issues
which they agree with but would never have the courage to say or defend because of our
shaming culture and the possibility of being fired. This needs to change.

 

TL;DR

●  Google’s political bias has equated the freedom from offense with psychological safety,

but shaming into silence is the antithesis of  psychological safety  .
●  This silencing has created an ideological echo chamber where some ideas are too
sacred to be honestly discussed.
●  The lack of discussion fosters the most extreme and authoritarian elements of this
ideology.
○    Extreme: all disparities in representation are due to oppression
○   Authoritarian: we should discriminate to correct for this oppression
●  Differences in distributions of traits between men and women may in part explain why we
don’t have 50% representation of women in tech and leadership.
●  Discrimination to reach equal representation is unfair, divisive, and bad for business.

Background             1
People generally have good intentions, but we all have biases which are invisible to us.
Thankfully, open and honest discussion with those who disagree can highlight our blind spots
and help us grow, which is why I wrote this document . Google has several biases and honest

2
discussion about these biases is being silenced by the dominant ideology. What follows is by no
means the complete story, but it’s a perspective that desperately needs to be told at Google.

Google’s biases
At Google, we talk so much about unconscious bias as it applies to race and gender, but we
rarely discuss our moral biases. Political orientation is actually a result of deep moral
preferences and thus biases. Considering that the overwhelming majority of the social sciences,
media , and Google lean left, we should critically examine these prejudices:

 

 

___________________________________________________________________________

1  This document is mostly written from the perspective of Google’s Mountain View campus, I can’t speak

about other offices or countries.

2  Of course, I may be biased and only see evidence that supports my viewpoint. In terms of political

biases, I consider myself a  classical liberal   and strongly value   individualism and reason . I’d be very happy

to discuss any of the document further and provide more citations.
Neither side is 100% correct and both viewpoints are necessary for a functioning society or, in
this case, company. A company too far to the right may be slow to react, overly hierarchical, and
untrusting of others. In contrast, a company too far to the left will constantly be changing
(deprecating much loved services), over diversify its interests (ignoring or being ashamed of its
core business), and overly trust its employees and competitors.

Only facts and reason can shed light on these biases, but when it comes to diversity and
inclusion, Google’s left bias has created a politically correct monoculture that maintains its hold
by shaming dissenters into silence.   This silence removes any checks against encroaching
extremist and authoritarian policies. For the rest of this document, I’ll concentrate on the
extreme stance that all differences in outcome are due to differential treatment and the
authoritarian element that’s required to actually discriminate to create equal representation.

Possible non-bias causes of the gender gap in tech                                         3
At Google, we’re regularly told that implicit (unconscious) and explicit biases are holding women
back in tech and leadership. Of course, men and women experience bias, tech, and the
workplace differently and we should be cognizant of this, but it’s far from the whole story.

On average, men and women biologically differ in many ways. These differences aren’t just
socially constructed because:
● They’re universal across human cultures
● They often have clear biological causes and links to prenatal testosterone
● Biological males that were castrated at birth and raised as females often still identify
and act like males
● The underlying traits are highly heritable
● They’re exactly what we would predict from an evolutionary psychology perspective
Note, I’m not saying that all men differ from all women in the following ways or that these
differences are “just.” I’m simply stating that the distribution of preferences and abilities of men
and women differ in part due to biological causes and that these differences may explain why
we don’t see equal representation of women in tech and leadership. Many of these differences
are small and there’s significant overlap between men and women, so you can’t say anything
about an individual given these population level distributions.
____________________________________________________________________________
3   Throughout the document, by “tech”, I mostly mean software engineering.
Personality differences

Women, on average, have more     :

●  Openness directed towards feelings and aesthetics rather than ideas. Women generally
also have a stronger interest in   people rather than things  , relative to men (also
interpreted as   empathizing vs. systemizing ).

○   These two differences in part explain why women relatively prefer jobs in social
or   artistic areas. More men may like coding because it requires systemizing and even
within SWEs, comparatively more women work on front end, which deals with both
people and aesthetics.
●  Extraversion expressed as gregariousness rather than assertiveness. Also, higher
agreeableness.
○   This leads to women generally having a harder time negotiating salary, asking for
raises, speaking up, and leading. Note that these are just average differences
and there’s overlap between men and women, but this is seen solely as a
women’s issue. This leads to exclusory programs like Stretch and swaths of men
without support.
●     Neuroticism   (higher anxiety, lower stress tolerance).
○   This may contribute to the higher levels of anxiety women report on Googlegeist
and to the lower number of women in high stress jobs.
Note that contrary to what a social constructionist would argue,   research suggests   that “greater
nation-level gender equality leads to psychological dissimilarity in men’s and women’s
personality traits.” Because as “society becomes more prosperous and more egalitarian, innate
dispositional differences between men and women have more space to develop and the gap
that exists between men and women in their personality traits becomes wider.” We need to   stop

assuming that gender gaps imply sexism  .

Men’s higher drive for status

We always ask why we don’t see women in top leadership positions, but we never ask why we
see so many men in these jobs. These positions often require long, stressful hours that may not
be worth it if you want a balanced and fulfilling life.
Status is the primary metric that men are judged on , pushing many men into these higher
4

paying, less satisfying jobs for the status that they entail. Note, the same forces that lead men
into high pay/high stress jobs in tech and leadership cause men to take undesirable and
dangerous jobs like coal mining, garbage collection, and firefighting, and   suffer 93% of

work-related deaths .

Non-discriminatory ways to reduce the gender gap
Below I’ll go over some of the differences in distribution of traits between men and women that I
outlined in the previous section and suggest ways to address them to increase women’s
representation in tech without resorting to discrimination. Google is already making strides in
many of these areas, but I think it’s still instructive to list them:
●  Women on average show a higher interest in people and men in things
○   We can make software engineering more people-oriented with pair programming
and more collaboration. Unfortunately, there may be limits to how
people-oriented certain roles at Google can be and we shouldn’t deceive
ourselves or students into thinking otherwise (some of our programs to get
female students into coding might be doing this).
●  Women on average are more cooperative
○   Allow those exhibiting cooperative behavior to thrive. Recent updates to Perf may
be doing this to an extent, but maybe there’s more we can do.
○   This doesn’t mean that we should remove all competitiveness from Google.
Competitiveness and self reliance can be valuable traits and we shouldn’t

necessarily disadvantage those that have them, like  what’s been done in
education  .
●  Women on average are more prone to anxiety
____________________________________________________________________________

4   For heterosexual romantic relationships,  men are more strongly judged by status and women by beauty  .

Again, this has   biological   origins and is culturally universal.

○   Make tech and leadership less stressful. Google already partly does this with its
many stress reduction courses and benefits.
●  Women on average look for more work-life balance   while men have a higher drive for
status on average
○   Unfortunately, as long as tech and leadership remain high status, lucrative
careers, men may disproportionately want to be in them. Allowing and truly
endorsing (as part of our culture)  part time work   though can keep more women in

tech.
●  The male gender role is currently inflexible
○   Feminism has made great progress in freeing women from the female gender
role, but men are still very much tied to the male gender role. If we, as a society,
allow men to be more “feminine,” then the gender gap will shrink, although
probably because men will leave tech and leadership for traditionally “feminine”
roles.

Philosophically, I don’t think we should do arbitrary social engineering of tech just to make it
appealing to equal portions of both men and women. For each of these changes, we need
principled reasons for why it helps Google; that is, we should be optimizing for Google—with
Google’s diversity being a component of that. For example, currently those willing to work extra
hours or take extra stress will inevitably get ahead and if we try to change that too much, it may
have disastrous consequences. Also, when considering the costs and benefits, we should keep
in mind that Google’s funding is finite so its allocation is more zero-sum than is generally
acknowledged.

The harm of Google’s biases
I strongly believe in gender and racial diversity, and I think we should strive for more. However,
to achieve a more equal gender and race representation, Google has created several
discriminatory practices:
●  Programs, mentoring, and classes only for people with a certain gender or race  5

●  A high priority queue and special treatment for “diversity” candidates
●  Hiring practices which can   effectively lower the bar   for “diversity” candidates by
decreasing the false negative rate
●  Reconsidering any set of people if it’s not “diverse” enough, but not showing that same
scrutiny in the reverse direction (clear confirmation bias)
●  Setting org level OKRs for increased representation which can incentivize illegal

discrimination  6
____________________________________________________________________________
5  Stretch, BOLD, CSSI, Engineering Practicum (to an extent), and several other Google funded internal and external programs are for people with a
certain gender or race.
6  Instead set Googlegeist OKRs, potentially for certain demographics. We can increase representation at an org level by either making it a better
environment for certain groups (which would be seen in survey scores) or discriminating based on a protected status (which is illegal and I’ve seen it
done). Increased representation OKRs can incentivize the latter and create zero-sum struggles between orgs.
These practices are based on false assumptions generated by our biases and can actually

increase race and gender tensions . We’re told by senior leadership that what we’re doing is
both the morally and economically correct thing to do, but without evidence this is just veiled left

ideology that can irreparably harm Google.

7

Why we’re blind
We all have biases and use motivated reasoning to dismiss ideas that run counter to our
internal values. Just as some on the Right deny science that runs counter to the “God > humans
> environment” hierarchy (e.g., evolution and climate change), the Left tends to   deny science

concerning biological differences between people (e.g., IQ and sex differences). Thankfully,

8
climate scientists and evolutionary biologists generally aren’t on the right. Unfortunately, the

overwhelming majority of humanities and social sciences lean left ( about 95%  ), which creates
enormous confirmation bias  , changes what’s being studied, and maintains myths like social

constructionism and the gender wage gap . Google’s left leaning makes us blind to this bias and
9

uncritical of its results, which we’re using to justify highly politicized programs.

In addition to the Left’s affinity for those it sees as weak, humans are generally biased towards
protecting females. As mentioned before, this likely evolved because males are biologically
disposable and because women are generally more cooperative and agreeable than men. We
have extensive government and Google programs, fields of study, and legal and social norms to
protect women, but when a man complains about a gender issue issue affecting men, he’s
labelled as a   misogynist and a whiner  10 . Nearly every difference between men and women is

interpreted as a form of women’s oppression. As with many things in life, gender differences are
often a case of “grass being greener on the other side”; unfortunately, taxpayer and Google
money is being spent to water only one side of the lawn.

____________________________________________________________________________
7  Communism promised to be both morally and economically superior to capitalism, but every attempt
became morally corrupt and an economic failure. As it became clear that the working class of the liberal
democracies wasn’t going to overthrow their “capitalist oppressors,” the Marxist intellectuals transitioned
from class warfare to gender and race politics. The core oppressor-oppressed dynamics remained, but
now the oppressor is the “white, straight, cis-gendered patriarchy.”
8  Ironically, IQ tests were initially championed by the Left when meritocracy meant helping the victims of
aristocracy.

9  Yes, in a national aggregate, women have lower salaries than men for  a variety of reasons  . For the
same work though, women get paid just as much as men. Considering women spend more money than
men and that salary represents how much the employee sacrifices (e.g. more hours, stress, and danger),
we really need to rethink our stereotypes around power.
10  “The traditionalist system of gender does not deal well with the idea of men needing support. Men are
expected to be strong, to not complain, and to deal with problems on their own. Men’s problems are more
often seen as personal failings rather than victimhood, due to our gendered idea of agency. This
discourages men from bringing attention to their issues (whether individual or group-wide issues), for fear
of being seen as whiners, complainers, or weak.”
This same compassion for those seen as weak creates political correctness , which constrains

11

discourse and is complacent to the extremely sensitive  PC-authoritarians   that use violence and
shaming to advance their cause. While Google hasn’t harbored the violent leftist protests that
we’re seeing at universities, the frequent shaming in TGIF and in our culture has created the
same silent, psychologically unsafe environment.

Suggestions

I hope it’s clear that I’m not saying that diversity is bad, that Google or society is 100% fair, that
we shouldn’t try to correct for existing biases, or that minorities have the same experience of
those in the majority. My larger point is that we have an intolerance for ideas and evidence that
don’t fit a certain ideology.  I’m also not saying that we should restrict people to certain gender

roles; I’m advocating for quite the opposite: treat people as individuals, not as just another
member of their group (tribalism).
My concrete suggestions are to:
●  De-moralize diversity.
○   As soon as we start to   moralize an issue  , we stop thinking about it in terms of
costs and benefits, dismiss anyone that disagrees as immoral, and harshly
punish those we see as villains to protect the “victims.”
●  Stop   alienating conservatives  .
○   Viewpoint diversity is arguably the most important type of diversity and political
orientation is one of the most fundamental and significant ways in which people
view things differently.
○   In highly progressive environments, conservatives are a minority that feel like
they need to   stay in the closet to avoid open hostility . We should empower those

with different ideologies to be able to express themselves.
○   Alienating conservatives is both non-inclusive and generally bad business
because   conservatives tend to be higher in conscientiousness , which is required

for much of the drudgery and maintenance work characteristic of a mature
company.
●  Confront Google’s biases.
○   I’ve mostly concentrated on how our biases cloud our thinking about diversity and
inclusion, but our moral biases are farther reaching than that.
○   I would start by breaking down Googlegeist scores by political orientation and
personality to give a fuller picture into how our biases are affecting our culture.
●  Stop restricting programs and classes to certain genders or races.
○   These discriminatory practices are both unfair and divisive. Instead focus on
some of the non-discriminatory practices I outlined.
____________________________________________________________________________
11  Political correctness is  defined  as “the avoidance of forms of expression or action that are perceived to exclude, marginalize, or

insult groups of people who are socially disadvantaged or discriminated against,” which makes it clear why it’s a phenomenon of the
Left and a tool of authoritarians.
●  Have an open and honest discussion about the costs and benefits of our diversity
programs.
○   Discriminating just to increase the representation of women in tech is as
misguided and biased as mandating increases for women’s representation in the
homeless, work-related and violent deaths, prisons, and school dropouts.
○   There’s currently very little transparency into the extent of our diversity programs
which keeps it immune to criticism from those outside its ideological echo
chamber.
○   These programs are highly politicized which further alienates non-progressives.
○   I realize that some of our programs may be precautions against government
accusations of discrimination, but that can easily backfire since they incentivize
illegal discrimination.
●  Focus on psychological safety, not just race/gender diversity.
○   We should focus on psychological safety, which has shown positive effects and
should (hopefully) not lead to unfair discrimination.
○   We need psychological safety and shared values to gain the benefits of diversity.
○   Having representative viewpoints is important for those designing and testing our
products, but the benefits are less clear for those more removed from UX.
●  De-emphasize empathy.
○   I’ve heard several calls for increased empathy on diversity issues. While I
strongly support trying to understand how and why people think the way they do,
relying on affective empathy—feeling another’s pain—causes us to focus on
anecdotes, favor individuals similar to us, and harbor other   irrational and
dangerous biases . Being emotionally unengaged helps us better reason about

the facts.
●  Prioritize intention.
○   Our focus on microaggressions and other unintentional transgressions increases
our sensitivity, which is not universally positive: sensitivity increases both our
tendency to take offence and our self censorship, leading to authoritarian
policies. Speaking up without the fear of being harshly judged is central to
psychological safety, but these practices can remove that safety by judging
unintentional transgressions.
○   Microaggression training  incorrectly and dangerously equates speech with

violence   and  isn’t backed by evidence .
●  Be open about the science of human nature.
○   Once we acknowledge that not all differences are socially constructed or due to
discrimination, we open our eyes to a more accurate view of the human condition
which is necessary if we actually want to solve problems.
●  Reconsider making Unconscious Bias training mandatory for promo committees.

○   We haven’t been able to measure any effect of our Unconscious Bias training
and it has the potential for overcorrecting or backlash, especially if made
mandatory.
○   Some of the suggested methods of the current training (v2.3) are likely useful,
but the political bias of the presentation is clear from the factual inaccuracies and
the examples shown.

○   Spend more time on the  many other types of biases   besides stereotypes.
Stereotypes are much more   accurate and responsive to new information   than the
training suggests (I’m not advocating for using stereotypes, I just pointing out the
factual inaccuracy of what’s said in the training).

The post Full text of ex-Google engineer James Damore’s memo appeared first on Men Rights India.

Summary of PIL filed in Delhi HC towards gender neutral rape/sexual assault laws

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Full details of PIL are at along with PDF of the PIL is available below:

https://www.republicindia.org/pil-filed-delhi-high-court-make-rape-laws-gender-neutral-protect-enforce-fundamental-rights-male-children-turning-18-yrs/

Prayer in the Writ Petition:
  1. To issue writ in the nature of mandamus or any other appropriate writ, order or directions, to declare Gender Specific Sections of IPC 375 & IPC 376 null, void and unconstitutional as per Article 13(2) of Indian Constitution as in current form IPC 375 & 376 are ultra-vires Articles 21 and 14 of Constitution of India, as after Right to Privacy Ruling where consent and bodily integrity of each citizen is now fundamental rights as a part of the freedoms and are intrinsic part of right to life and personal liberty under Article 21 and female and male both have equality before law and equal protection of law under Article 14 guaranteed by Part III of the Constitution.
  2. To issue writ in the nature of mandamus or any other appropriate writ, order or directions, using Doctrine of Pari Materia to replace the IPC 375 and IPC 375 with Gender Neutral IPC 375 and IPC 376 of The Criminal law(amendment) Ordinance 2013 dated 3nd February 2013, No 3 of 2013, published in The Gazette of India (Extraordinary), as gender neutral IPC 375 and IPC 376 was enacted on the same subject but at different time, were law of the land from 3rd February 2013 to 1st April 2013 .
  3. To issue writ in the nature of mandamus or any other appropriate writ, order or directions, to declare The Criminal law(Amendment) Act 2013 dated 2nd April 2013, No 13 of 2013, published in The Gazette of India (Extraordinary), null, void and unconstitutional as per Article 13(2) of Constitution of India, as Indian Parliament by applying the Act Retrospectively[Ex Post Facto] from 3rd February 2013 did something beyond power vested on it and violated human rights of citizens and denied the people gender neutral laws(IPC 375, 376, 376D, 354A, 354C, 354D) of ordinance along with other specifics of law of the land as per the ordinance which was effective from 3rd February 2013 to 1st April 2013, thereby making the Criminal Amendment Act dated 2nd April 2013 ultra vires Article 20(1), 14 and 21 of Constitution of India.

A notice has been served to the Union of India by the Hon’ble Chief Justice of Delhi High Court. Next date of hearing is 23 October 2017

For more details: contact @republicindiaIN on Twitter or email at sanjjiiv@republicindia.org

The PIL is 138 pages long.  Below is a much shorter auto-generated summary of the PIL, which can give a glimpse on main data points and arguments.  The full PIL has many other tables and data not captured in below summary, so interested people can click on link above to download full PDF itself.

Summary of PIL below

News titled “The Truth About Men, Women And “Three women raped man, 23, for THREE days issue of women ‘raping’ men in Britain” sexually assaulted almost as often as women” Report titled ” Victims of Sexual Violence: Victimization Perpetrated by Women More Partner Violence, Sexual Violence, & Stalking The era of Gender Neutral Rape/Sexual Assault law in Republic of India Gender Neutral “Ordinance Act” and was deemed to have come force on 3 from Sexual Assault (POSCO Act) till they are 17 Years 364 Days 23 Hours thereby violating Article 21 of Constitution of India as No Gender Neutral Cases could be filed(Petitioner never heard any Sexual Assault Case of WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA Reforms, Gender Equality through Gender neutrality etc.

21 and female and male both have equality before law and equal replace the IPC 375 and IPC 375 with Gender Neutral IPC 375 of India (Extraordinary), as gender neutral IPC 375 and IPC 376 C DEFINITION OF RAPE (ALSO CALLED SEXUAL ASSAULT) D RAPE (SEXUAL ASSAULT) LAWS AROUND THE WORLD E MEN RAPED (FORCED TO PENETRATE) BY WOMEN SOME G CAUSE OF ACTION (For Declaring Rape Laws Gender Neutral) H GROUNDS (For Declaring Rape Laws Gender Neutral) are protected from Sexual Assault (POSCO Act) till they are 17 Years memberships of any vested interest Women’s Association or Men’s All, but only selected few men and women organizations, for their own male and female and whether perpetrator/victim is male or female .

there are some crooked, wicked men and women who want sex all the Gender equality, also known as sexual equality, is the state of “Gender equality, equality between men and women, entails the concept that all human beings, both men and women, are free to and needs of women and men are considered, valued and It does not mean that women and men have to treatment for women and men, according to their respective Gender equality is the goal, while gender neutrality and gender UNICEF says gender equality “means that women and men, and That, as per Wikipedia ” Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out rape or sexual assault laws written in gender-neutral language, 27 had rape laws that were completely gender-specific (i.e., the perpetrator was defined as male and the victim as female) and 6 had partly gender- neutral laws (the perpetrator was defined as male and the victims could DL refers to separate rape laws for men and women, the E MEN RAPED(FORCED TO PENETRATE) BY WOMEN SOME “Three women ‘raped man, 23, for THREE days'(Emphasis Added) after A GANG of women kidnapped a man and raped him for three days while Lawless can also be subject to Male Rape by Female.

research focuses on the hidden issue of women ‘raping’ men in Britain” Men forcing women to have sex is called rape, but experts have turned their attention to the hidden issue of women forcing men in the United “The offence of rape can only be committed by men due to the experiencing sexual violence by women the presumed inability of women to overpower men due to their “weaker” physical stature which because men are taught to value and enjoy sex they must view all sexual reveals that men are sexually assaulted almost as often as women” In asking 40,000 households about rape and sexual percent of rape and sexual violence victims.

had often wondered whether incidents of sexual violence against men that jail is a place where sexual violence against men is routine but not experience of men and women is “a lot closer than any of us would For some kinds of victimization, men and women women the victims.

Sexual Victimization of Men in America: New Data Challenge Old women and 1.267 million men claiming to be victims of sexual violence.

historically used sexual violence to subjugate women and that in most portraying sexual violence against men as aberrant, we prevent justice “Victims of Sexual Violence: Statistics” is an eye-opener and speak Millions of men in the United States have been victims of rape: 1 out of every 10 rape victims are male.

victims of attempted or completed rape, one can imagine the of all rape victims are male in the USA.

UCLA School of Law, published a report “Research Finds Sexual Victimization Perpetrated by Women More Common than Previously female sexual perpetration is more common than previously recognized.

Sexual victimization by women perpetrators occurs mostly against men The research, published in a paper titled “Sexual Victimization sexual victimization are essential to ensuring that professionals responding to sexual victimization address it appropriately.

heterosexist stereotypes, such as the idea that only men are sexual perpetrators and that women are incapable of sexual abuse, interfere with complex understandings of sexual victimization.

” Sexual victimization perpetrated by men remains a serious, ongoing estimates of the prevalence of female sexual perpetration than has been Prevention, the report finds that women and men reported a However, the majority of male victims report female by women: 79.2 percent of victimized men reported female Heterosexual male victims were much more likely to report non-rape sexual victimization by a female perpetrator in their victims were less likely to report such abuse by a female (14.8 percent) or bisexual (12.5 percent) women victims.

male victims and 41.4 percent of female victims reported that Among adult prisoners reporting staff sexual victimization, 80.0 Gay and bisexual men and lesbian and bisexual women in prison were 2-3 times more likely to report prison staff sexual juveniles reporting staff sexual victimization, 89.3 percent should be used to comprehensively address sexual victimization in all Violence, Sexual Violence, & Stalking Rape as Men were also made Forced to Penetrate against their will.

Intimate partner violence is widespread: 1 in 4 Women and 1 in 9 Men were victims of contact sexual violence*, physical violence, * Contact sexual violence includes rape, being made to penetrate, sexual coercion, Sexual violence affects women and men: About 1 in 3 women and nearly 1 in 6 men were victims of contact sexual violence at Nearly 23 million women and 1.7 million men have been the victims of rape or attempted rape at some point in their lives.

is reality but Men’s Rape Marital, as well as Non Marital, is also a hard appears to suggest that gender neutrality in rape is inconsistent with recognition of male rape, while at the same time being unambiguously committed to the needs of female rape victims.

The recognition of male rape and sexual assault does not undermine male victimization, in fact, supports feminist arguments concerning male Jeanne Gregory and Sue Lees have noted that male and female rape For example, in her groundbreaking study of female rape, Against Our Will: Men, Women and Rape, Susan Brownmiller was also as men may invade women through their orifices, so, too, do they rape; that is, men rape women and men can never be victimized, or if objections to gender neutrality in rape, overriding the reality of rape and not designed to make gender irrelevant in our understanding of sexual the main victims of sexual violence and males the main perpetrators, That, Gender neutrality within rape is an evidence-led means of acknowledgement that men can be victims of rape, and that women can understanding of male rape and sexual assault has grown so “contested of how the legal process deals and should deal with male victims of rape That, it would appear that those opposed to gender neutrality within rape incorrectly assume that the concept means ignoring gender in rape and However, in the context of rape, gender neutrality is neither undermining the substantive equality of women nor are women that the rape law must be gender neutral and replaced the term with the offence of rape gender neutral.

Men, therefore, must be entitled to the same rights as women.

though male rape is a less frequent occurrence than female rape, they notions of denial and assist male and female victims in seeking support That, the social stigma that women victims face is a harsh fact of reality If a male alleges that female raped him, he is not seen as a “Real Man” about 90-95% of men who are raped do not report it.

like females are afraid of reporting rapes.

of Gender Neutral Rape Laws in Progressive Countries coupled with Female on Male Rape facts, startling statistics and general analysis of Rape does affect men adversely.

consequences for men and women, looking at rape purely through its Gender-neutral rape laws are extremely unlikely to be used against claim gender neutrality harms women.

gender neutrality harmed women or meant the exclusion of issues of gender from discussions about rape, they would have a justifiable rape that does not consider all issues relating to gender and the realities of sexual violence faced by both women and men.

Also, as what to constitute Marital Rape and what would constitute dignity and bodily integrity Gender Neutral rape laws will afford a more across the rape of all genders, it is the lack of consent), and by doing rape laws may actually leave women better off.

gender to consider in understanding the causes of rape in our It is high time that the reality of sexual victimization for all those who but not at the cost of recognizing the reality of rape for all its victims and G CAUSE OF ACTION (For Declaring Rape Laws Gender Neutral) H GROUNDS (For Declaring Rape Laws Gender Neutral) Because, Article 14 of Constitution of India says “Equality before law Equality before law is a negative concept; equal protection of laws is a RAPE LAWS/SEXUAL VIOLENCE LAWS FROM 3 FEBRUARY 2013 TO 1 APRIL 2013, THAT IS 58 DAYS due to Gender Neutral IPC 375, BECAUSE, in Ordinance 2013, IPC 375 Rape definition was {“A person is said to commit “sexual assault” if that person} gender neutral As Gender Neutral IPC 375, 376 were laws of the land from 3 February Gender Neutral Sexual Assault.

Gender Neutral Cases could be filed(Petitioner never heard any Sexual Article 21 and female and male both have equality before law and equal 375 with Gender Neutral IPC 375 and IPC 376 of The Criminal published in The Gazette of India (Extraordinary), as gender neutral IPC The Truth About Men, Women And Libido In case you missed the memo, women are sex-withholding prudes and men are sex-crazed baboons ready to bang Let’s get this out of the way right off the bat: Men do seem to be, on the whole, more sexually keyed up than women.

One survey out of Florida State University found that men have more spontaneous sexual arousal and more Yet, this hardly means that all men want sex nonstop, while all women would rather watch Desperate Housewives Women and Sexual Heat thought to be the key hormone underlying sexual desire in both men and women than estradiol, the most potent Men and Sexual Heat behavior, even to the point of being funny (men, so frisky, haha!; women, so frigid, haha!).

sexual assault laws written in gender-neutral language, 27 had rape laws that were male and the victims could be male or female) seriousness of the assault, “sexual assault of the first degree” usually being DL refers to separate rape laws for men and women, the punishment Three women ‘raped man, 23, for THREE days’ after A GANG of women kidnapped a man and raped him for three days while force-feeding him energy drinks, police Rapes on men in South Africa are often not reported by the victim.

Captain Wellback said: “The South African Police Service take all sexual offences seriously regardless of the gender “We assure all victims of these types of sexual crimes that they we will carry out robust investigations to bring all the Any other victims of the female rape gang have been asked to come forward.

Last year three women were arrested for luring a man to a house in Durban, South Africa, and raping him after He was raped by all three women in the car at gunpoint.

Nearly 20% of all sexual violations reported to South African police were on men.

The previous May a man was kidnapped in Kwazakhele, Port Elizabeth, by three women in a black BMW and raped Reese Mann, director of the South African Male Survivors of Sexual Abuse, said nearly 20 per cent of all sexual He said: “Male victims of sexual abuse are much less likely than their female counterparts to report sexual abuse Police are urging any other victims of the female rape gang or any witnesses to come forward.

A woman has been charged with rape after it was alleged that she sexually assaulted a taxi driver at knifepoint.

UKresearch focuses on the hidden issue of women ‘raping’ Men forcing women to have sex is called rape, but experts have turned their attention to the hidden issue of women New research at Lancaster University reveals that many men have been forced by women to penetrate them using Considered a first of its kind research examining the extent of men who have been “forced to penetrate” women, the “Rape” was the most frequent label used to describe the ordeal, despite the law not recognising such cases in this “The offence of rape can only be committed by men due to the requirement of penile penetration of the victim.

stereotypes around men experiencing sexual violence by women the presumed inability of women to overpower because men are taught to value and enjoy sex they must view all sexual opportunities with women as positive A new study reveals that men are sexually assaulted almost For some kinds of sexual victimization, men and women have roughly equal experiences about rape and sexual violence, the survey uncovered that 38 percent of incidents were against men.

5 and 14 percent of rape and sexual violence victims.

sexual violence against men were under-reported.

place where sexual violence against men is routine but not counted in the general national statistics.

The experience of men and women is For some kinds of victimization, men and women have roughly victimization,” and especially our fallback model that men are always the perpetrators and women the victims.

Chicago reported 86,767 cases of rape but used its own broader definition, so the FBI left out the Chicago stats.

her new paper, ” The Sexual Victimization of Men in America: New Data Challenge Old Assumptions ,” co-written with nonconsensual sexual contact basically equalized, with 1.270 million women and 1.267 million men claiming to be victims of sexual violence.

that if a man has an erection he must want sex, especially because we assume men are sexually insatiable.

and dysfunction among male victims of sexual abuse backs this up.

sexual crimes against men are still rare.

example, turned up that 46 percent of male victims reported a female perpetrator.

sexual assault, should these new findings alter our national conversation about rape? who fully understands that men have historically used sexual violence to subjugate women and that in most By portraying sexual violence against men as aberrant, we prevent justice and compound the shame.

conversation about men doesn’t need to shut down the one about women.

Victims of Sexual Violence: Statistics On average, there are 321,500 victims (age 12 or older) of rape and sexual assault each year in the United Ages 12-34 are the highest risk years for rape and sexual assault.

Those age 65 and older are 92% less likely than 12-24 year olds to be a victim of rape or sexual assault, and Women and Girls Experience Sexual Violence at High Rates Millions of women in the United States have experienced rape.

As of 1998, an estimated 17.7 million American women had been victims of attempted or completed rape.

90% of adult rape victims are female.

Females ages 16-19 are 4 times more likely than the general population to be victims of rape, attempted rape, or sexual assault.

Women ages 18-24 who are college students are 3 times more likely than women in general to experience Read more statistics about campus sexual violence .

Men and Boys Are Also Affected by Sexual Violence Millions of men in the United States have been victims of rape.

had been victims of attempted or completed rape.

About 3% of American men or 1 in 33 have experienced an attempted or completed rape in their lifetime.

1 out of every 10 rape victims are male.

Sexual Violence Can Have Long-Term Effects on Victims The likelihood that a person suffers suicidal or depressive thoughts increases after sexual violence.

94% of women who are raped experience symptoms of post-traumatic stress disorder (PTSD) during the two 30% of women report symptoms of PTSD 9 months after the rape.

33% of women who are raped contemplate suicide.

13% of women who are raped attempt suicide.

Approximately 70% of rape or sexual assault victims experience moderate to severe distress, a larger Sexual violence also affects victims’ relationships with their family, friends, and co-workers.

38% of victims of sexual violence experience work or school problems, which can include significant problems Victims are at risk of pregnancy and sexually transmitted infections (STIs).

The average number of rapes and sexual assaults 60% of all sexual violence against inmates is perpetrated by jail or prison staff.

4.3% of active duty women and 0.9% of active duty men experienced unwanted sexual contact in FY14.

Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Crime Victimization of male and female victims in the United States, using a study from 1998.

Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Sexual Assault of Young Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Rape and Sexual Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Female Victims of Sexual Walsh, A prospective examination of post-traumatic stress disorder in rape victims.

Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Sexual Victimization in Department of Defense, Fiscal Year 2014 Annual Report on Sexual Assault in the Military, (2015).

(AAU), Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (September Research Finds Sexual Victimization Perpetrated by Women Research Finds Sexual Victimization Perpetrated by Women More Common than Previously Known A New Journal Article Explores Sexual Victimization by Women federal agency data, researchers find that female sexual perpetration is more common The researchers’ findings contradict the common belief that female sexual perpetration Sexual victimization by women perpetrators occurs mostly against men and occasionally against women.

The research, published in a paper titled “Sexual Victimization Perpetrated by Women: Federal Data Reveal The researchers suggest that inclusive approaches to understanding sexual victimization are essential to ensuring that professionals responding to sexual victimization address it appropriately.

such as the idea that only men are sexual perpetrators and that women are incapable of sexual abuse, interfere with complex understandings of sexual victimization.

“Sexual victimization perpetrated by men remains a serious, ongoing threat,” said Lara Stemple.

This is the first study to assess the role of women as perpetrators of sexual abuse in large federal data sets, providing more reliable estimates about the prevalence of female sexual perpetration than has been published in the men reported a nearly equal prevalence of nonconsensual sex in a 12-month period.

However, the majority of male victims report female The form of nonconsensual sex that men are much more likely to experience than women victimized men reported female perpetrators.

Heterosexual male victims were much more likely to report non-rape sexual victimization by a female perpetrator in their lifetime (71.4 percent) than were bisexual men (34.2 percent) or gay men (21.4 percent).

In contrast, heterosexual women victims were less likely to report such abuse by a female perpetrator in their lifetime (5.3 percent) than were lesbian (14.8 percent) or bisexual (12.5 percent) women victims.

Among people reporting rape/sexual assault by a female perpetrator, 57.6 percent of male victims and 41.4 percent of female victims reported that the incident involved an attack whereby the offender Among adult prisoners reporting staff sexual victimization, 80.0 percent reported only female perpetrators.

Gay and bisexual men and lesbian and bisexual women in prison were 2-3 times more likely to report prison staff sexual victimization than their heterosexual counterparts.

victimization, 89.3 percent reported only female perpetrators.

The findings compel a rethinking of long-held stereotypes about sexual victimization and gender.

new, inclusive approaches should be used to comprehensively address sexual victimization in all forms.

The Williams Institute , a think tank on sexual orientation and gender identity law and public policy, is dedicated to were victims of contact sexual violence*, physical violence, * Contact sexual violence includes rape, being made to penetrate, sexual coercion, and/or unwanted Sexual violence affects women and men.

About in women and nearly in men were victims of contact sexual violence at some point in their lives.

Nearly 23 million women and 1.7 million men have been the victims of rape or attempted rape at some point in their lives.

*Among victims who experienced contact sexual violence, physical violence, and/or stalking by an intimate partner in their lifetime.

Full details of PIL are at along with PDF of the PIL is available below:

https://www.republicindia.org/pil-filed-delhi-high-court-make-rape-laws-gender-neutral-protect-enforce-fundamental-rights-male-children-turning-18-yrs/

The post Summary of PIL filed in Delhi HC towards gender neutral rape/sexual assault laws appeared first on Men Rights India.

Points on IPC 498A law, misuse, future PIL for Dowry Law Misuse etc.

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Note: This article is being put in public domain and can be used by anyone in part or full for any purpose whatsoever.

Given recent news about revisit by Supreme Court of prior SC judgment of 27th Jul in Rajesh Sharma vs. State of UP, it has become imperative for men’s rights organisations to come up with their own arguments and get directly involved with the legal and judicial processes about how laws, their interpretation, and implementation are modified by judicial orders.  Even the revisit order by SC is based on a PIL by a women’s NGO comprising of women advocates, and so if the logic being extended is that PIL has been filed for protecting women’s rights, then by same reasoning men’s rights organisations can get involved with the PIL and implead themselves into such proceedings for protection of men’s rights.  If women’s rights are human rights, then men’s rights are also human rights.  If anyone has trouble understanding this point, then he/she is likely driven or brainwashed by cultural Marxism type of propaganda.

Arguments will be given on various points below, and further the mentioned data sources can be analysed to build a thorough report on the same.  Some of the points have already been acknowledged in various SC and HC judgments, so those can also be cited in lieu of giving primary data.

Data sources for building arguments on law misuse etc.

Lot of the data and statistics about 498A and its ill effects are already available through following primary sources:

  1. NCRB (National Crime Records Bureau) reports which give both IPC 498A data and suicide statistics.  These have been analysed in many blog articles also.
  2. Some data has been collected through RTIs filed by individuals.

Anecdotal data about 498A misuse, bail proceedings, false charge sheets (even though not in statistical reports) can be deduced from following sources:

  1. Calls/emails received by MRAs/volunteers, and NGOs
  2. Social media
  3. Questions, comments by general public (about fear of law misuse by women, 498A after marriage) on internet, social sites like Quora etc.  This type of data can be utilized to show that general public is aware and scared of misuse of women protection laws.  If an argument is given by OP (Opposite Party) that such data is anecdotal, then it can be argued that since government has not done any survey on people’s attitudes and perceptions about misuse of women protection laws, such anecdotal data which is widely shared on social media, and not challenged has to be taken into account and respected.  Even lot of data advanced by women NGOs is based on conjectures and convenient surmises about non-reporting of crimes by women, “within four walls of home” type of arguments, which are nothing but convenient assumptions instead of real data of the kind collected in surveys or the kind of data NCRB reports provide.

Note that there cannot be any bar on basing arguments on above data found by men’s rights NGOs/MRAs, because even the women NGO Nyayadhar has based their arguments on their own data collected over years, the truth or falsity of which has not been independently verified.

Arguments against misuse

A common fall-back argument whenever it is acknowledged that IPC 498A and similar women protection laws are misused is that every law can be misused, and therefore that by itself should not be a reason to scrap or abolish a law.  The argument is incomplete because it does not go into extent or degrees of misuse of various laws.  For example, it has sometimes been seen that murder case has been put on husband or family where a married woman has gone missing.  Later it has been found that the woman was living with her paramour in another city, so the filing of murder case was totally wrong and a misuse of murder law.  Or sometimes a body has been found of a woman and it was assumed to be another woman who was missing, without proper investigation.  In this case, there is a possible murder case, but those accused of murder are not the rightly accused since the victim woman has not bee identified correctly.

How many such misuse of murder law will happen in an year? Maybe 10, 20.  How many people will get arrested and have to face trial?  Maybe 30-50.  Now compare this to number of IPC 498A filed every year (about 1 lakh), and number of people arrested is about 2.2 lakh.  Overall conviction rate is reportedly 13-15% or so based on NCRB data, and based on RTIs filed in Bangalore/Karnataka it is much lesser.  According to this RTI data, 25 people were arrested (and most had to go through trial lasting 5-10 years) in Bangalore for ultimate conviction of 1 person.  Such arrest and prosecution of people is totally against principles of justice in a civilized society, that innocents should not be made to suffer in order to punish the wrongdoers.  But when it comes to women protection laws like IPC 498A, all such caution is thrown away, and the state acts like an oppressive state only too happy to arrest.

Data sources for above: NCRB crime statistics, RTI replies.

Negative impacts of 498A

Suicide of married men

It’s already well publicized that suicide rate of married men is more than double the number of suicide rate of married women, yet the societal perception has been created due to MSM’s (Main stream media) constant news on any news about crimes against women.  Part of the problem is also that a man is considered to be possessed with free will, and a woman is considered (whenever bad outcomes) to be either under some kind of oppression or without agency, and so all news about male suicides will get explained away due to things like farmers’ suicides, financial problems, personal problems (note that the same personal problem could easily become dowry death IPC 304B in case of woman’s suicide if within 7 years of marriage).

The more convincing part is about regularly coming news of married men committing suicide due to clear reason, or many a time leaving a suicide note, post on Facebook, or even a video before suicide.  These news sources can be utilized as part of 498A misuse PIL, or similar proceedings.

Unjustified and mysterious bail proceedings – bail industry at work, or a scared lower judiciary?

A very common pattern is being observed in bail proceedings especially anticipatory bail proceedings related to IPC 498A cases.  What has been reported by many accused men is that their bail gets rejected at trial court level almost always.  Many are able to get bail at session court level, and almost everyone is able to get bail if they go to High Courts.

If anyone has basic understanding of about bail, then it is easy to see that this type of bail rejection at lower courts but granting of bail at higher courts based on same set of facts, is gross injustice.  When no new set of facts have been brought forward in appeal, then why should the bail not have been granted at lower/trial court itself?  Many people may not have the resources and ability to keep approaching higher courts all the way till HC to get bail.  All of them are being denied bail at lower court level.

Some possible arguments on the reasons for this could be:

  1. There is a jail/bail industry at work, which benefits the advocates at expense of innocent public.  There is some possibility of this since many in advocate community had spoken against strict interpretation and adherence to CrPC 41 provisions, which is something would result in lesser number of arrests, and fear of arrests, thereby lowering the number of bail applications coming to courts.  Supreme Court had given a definitive judgment on adherence to provisions of CrPC 41 in its Arnesh Kumar vs. State of Bihar judgment, so at least the threat of immediate arrests has subsided in many states of India.
  2. The judges in lower judiciary are scared of being accused of bias, so they routinely deny bail while higher judiciary is not scared of doing the right thing and so bail is granted at session court level many a time, and almost always at HC level.

Arguments based on conviction rate being 15%

Someone needs to analyse this based on conviction rates in other crimes as per NCRB reports.  Basically, the conviction rate in IPC 498A is too low.  If the argument is advanced that it is not because the case was false, but due to inefficiency and delays in judicial system, then one can compare lower rate of conviction in IPC 498A relative to other crimes to show that it is much more than the standard argument about inefficiency and delays.  Even if conviction rate is not reasonably high (say 50%) in other crimes, given that IPC 498A sees lot more FIRs and charge-sheets and number of accused, fixing IPC 498A has lot more positive impact in creating a just prosecution and judicial system judicial.  If a particular crime has 100 FIRs in any year, its ‘rampant’ misuse will affect maybe 100-150 people, but since IPC 498A has about 100,000 FIRs and about 220,000 accused in an year, its rampant misuse affects whole of society.

Here we can argue that the right to life and liberty also entails right to be free from possibility or actual arrest, bail proceedings, cost of hiring defence lawyer, unjustified prosecution, trial over many years which only results in acquittal in the end.  There cannot be 100% conviction in any crime, but a 15% conviction rate is also not justifiable.  A comparison can be made about conviction rate in other countries in various crimes, and what would be a reasonable conviction rate for Indian prosecution and judicial system.

Assuming that a more just conviction rate would be 50% in overall crimes and so in IPC 498A cases too, then it is easy to see that the total number of IPC 498A cases will have to come down by 70% of what they are now, from about 100,000 per year to about 30,000 per year.  We assume that absolute number of convictions will remain the same if more effective processes are put in place.

Current number of cases /year Current Conviction Rate Number of cases resulting in conviction
100000 15.00% 15000
Expected number of cases /year Desired Conviction Rate Number of cases resulting in conviction
30000 50.00% 15000

Now it may be argued that with more efficient and effective processes, the conviction rate should increase from 15% to a higher number, and so the absolute number of convictions should be higher than 15,000.  I would be somewhat wary of jumping to such conclusion, since it seems from data that there is very low conviction rate in cities like Bangalore.  So there is every possibility that higher conviction will be happening in rural areas.  If the PIL of Nyayadhar women’s NGO is to be believed, the reasons for this could be because well-educated women (in cities presumably) misuse the law, but those in rural areas are the real oppressed women.  Since that NGO works with rural women, it could be their self-serving argument too but in absence of data this cannot be dismissed outright.  However, another plausible reason could be that those accused in rural areas are not so well aware of legal processes, are unable to spend a lot on defence lawyer, and hence their trial ends up in conviction.  Also, many of them in current scenario are falsely accused, but being unable to get proper defence, they get convicted anyway.  With proper processes put in place, many in both urban and rural areas will not have to face a charge-sheet and subsequent trial.

So, if conviction rate in IPC 498A is increased to a more justifiable level of 50%, about 70,000 cases per year can be reduced. That will directly translate to about 150,000 lesser number of accused who are saved from all the ill-effects like possibility of arrest, bail proceedings, trial for many years, resulting job losses, loss of reputation, societal bias, and so on.

Costs to society for wrongful prosecution

Given above analysis, further costs under various headings below can be based on lesser number of IPC 498A cases by 70,000 per year, and also lesser number of accused by about 150,000 per year.  Whatever are the current monetary costs, wastage of resources etc., will come down proportionately by 70,000 lesser number of cases and 150,000 lesser number of accused.

So one can basically find current costs under each heading, and then take 70% of them, or take ratio of 15/22 (150000/220000) for them for number of accused.

Costs on wrongly accused men (70,000 husbands) who are forced to quit their jobs, or take leave from work

Costs to wrongly accused (150,000 accused) of bail proceedings etc.

Costs on police, investigation, prosecution, trial, taxpayers for trials of wrongly accused (70,000 cases)

How it affects poorer people in worse way? Find data on this

Problems in police charge-sheeting

Problem in police charge sheeting – far off relatives, no investigation, charge sheeting of accused without good evidence. Charge-sheeting of accused done even if evidence shown contrary to allegations, e.g. accused husband produces evidence that he has given 2 lakh to his father in law, though he is being accused of demanding dowry (with no documentary evidence of actual dowry paid, or any demand either).

Police has no accountability on conviction rate

Following judgment needs to be studied, and how these recommendations have to be implemented.  If they are not implemented so far due to whatever reasons, then this can be argued in SC that some suitable directions need to be issued to state governments so proper investigation, charge-sheeting, trial becomes a reality.  That will automatically reduce the number of false/unproveable charge-sheets by police since they will be bound to increase conviction rates, and the easiest way to do that is by reducing the number of false cases being converted into charge-sheets.

http://www.livelaw.in/breaking-erring-prosecutors-and-investigating-officers-must-be-proceeded-against-in-case-of-unmerited-acquittals-and-wrongful-convictions-sc-download-the-judgment/

Is IPC 498A a criminal law, civil law, matrimonial law, or divorce negotiation tool?

Lawyers advising online to file 498A for divorce, marital problems to women (get screenshots etc.)

Incentive to lawyers to suggest 498A as negotiation tool for divorce, widely sanctioned and condoned since settlement/compromise considered normal even though cognizable offence.  FIRs are filed, trials begin, and then at any point of time of trial a quashing of case can be done by HC under CrPC 482.

Analysis of NCRB Data

NCRB data analysis – overall conviction 498A

NCRB data analysis – find states with high conviction rates 498A

News stories on suicide of men, blaming wife/in-laws or suicide note

The post Points on IPC 498A law, misuse, future PIL for Dowry Law Misuse etc. appeared first on Men Rights India.

Police can only call people via written notice for investigation: Madras High court guidelines on CrPC 160

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This recent judgment of Madras HC (when do they plan to change the name to Chennai HC (?)) throws light on provisions of CrPC 160 under which police can call witnesses for investigation for any crime.

CrPC 160 is reproduced below:

Section 160 – Police Officer’s power to require attendance of witnesses

1. Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:

Provided that no male person under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person1 shall be required to attend at any place other than the place in which such male person or woman resides.

2. The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under Sub-Section (1) at any place other than his residence.

Note that the first para says clearly that police officer can call witnesses (including accused) for investigation only “by order in writing”.  Most of the lawyer community has failed to educate public on this part, and one can only speculate whether it’s conflict of interest (read as: more anticipatory bail applications), or sheer laziness; neither of which is too flattering a reason.

This judgment specifically addresses the issue of harassment by police during investigation, and the operative part of judgment is given below:

5.In order to circumvent such situations, the following guidelines are issued:
     a)While summoning any persons named in the complaint or any witness to the incident complained of, the police officer shall summon such persons through a written summon under Section 160 Cr.P.C., specifying a particular date and time for appearing before them for such an enquiry/investigation.

    b)The minutes of the enquiry shall be recorded in the general diary/station diary/daily diary of the police station.

    c)The police officer shall refrain himself  or herself from harassing persons called upon for enquiry/investigation.

    d)The guidelines stipulated for preliminary enquiry or registration of FIR by the Hon’ble Supreme Court in Lalita Kumari Vs. Government of Uttar Pradesh and others [2014 (2) SCC (1)] shall be strictly adhered to.

So the judgment clarifies that not only the police officer has to summon via a written summon, but that summon should also specify a particular date and time for appearing in front of police.  That should tell people that all this chit-chat  where someone from PS calls on your phone to ask to pay them a visit for enquiry/investigation/talk etc, is just plain illegal as far as adherence to CrPC is concerned.  The only legal way is via a written summons mentioning particular date and time (note: emails can also be taken as written notice).

Also note that minutes of this enquiry have to be mandatorily noted in the general diary/station diary/daily diary of PS, which means again that the verbal chit-chat police people in PS like to engage with accused under matrimonial cases, without keeping written records, is also not legal.  All those probably happen with no entry about visit, or enquiry records anywhere.

Now logically, such clarifications should lead to rapid dissemination of this correct practice among police and general public alike, but probably since public seems to learn about police procedures from what is shown in movies than by reading law, and tend to disbelieve written statute in favour of what is “public wisdom”, it’s anybody’s guess how many years it might take before this becomes standard practice all over India.

Lalita Kumari Vs. Government of Uttar Pradesh and others judgment is quite important on aspects related to FIR registration etc, and will be covered in another post.

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Full judgment text below:
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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 11.12.2017

CORAM:
THE HONOURABLE MR. JUSTICE M.S.RAMESH

Crl.O.P.No.27191 of 2017
P.R. Ramasamy                            ..  Petitioner

         Vs.

1. State, rep. by
     The Deputy Commissioner of Police,
     Mylapore Range,
     Mylapore,
     Chennai-600 004.

2.The Inspector of Police,
    Mylapore Police Station,
    Mylapore,
    Chennai-600 004.                    ..     Respondents
                                         

PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying to direct the respondents police not to harass the petitioner and her family members based on the petitioner’s representation dated 04.12.2017 under the guise of enquiry.

        For Petitioner      :     Mr.R.Vivekananthan

            For Respondents     :     Mr.C. Iyyappa Raj
                         Additional Public Prosecutor.

ORDER
     It is the grievance of the petitioner that the respondent police have been harassing him under the guise of an enquiry/investigation and hence, has invoked the inherent powers of this Court under Section 482 of Cr.P.C.
    
     2.An enquiry into a non cognizable offence or a cognizable offence is the unfettered powers of the Investigation Officers so long as the power to investigate/enquire into these offences are legitimately exercised within the frame work of Chapter XII of the Code of Criminal Procedure. Though the Code of Criminal Procedure empowers the Magistrate to be a guardian in all the stages of the police investigation, there is no power envisaging him to interfere with the actual investigation or the mode of investigation.  It is in this background that numerous petitions complaining of harassment are being reported and filed before this Court seeking for directions to refrain the police officials from harassing the persons named in a complaint.   

     3.This Court, exercising its power under Section 482 of the Criminal Procedure Code normally would not interfere with the investigation conducted by a police officer.  Nevertheless, it would also not turn a blind eye to instances of harassment by the police under the guise of investigation is brought to its notice.

    4.In the present case in hand, the petitioner has complained of harassment by the police based on a complaint and seeks for this Court’s intervention by way of a direction.  The term ‘harassment’ by itself has a very wide meaning and hence, what could be harassment to the petitioner may not be the same to the police officer. 

    5.In order to circumvent such situations, the following guidelines are issued:
     a)While summoning any persons named in the complaint or any witness to the incident complained of, the police officer shall summon such persons through a written summon under Section 160 Cr.P.C., specifying a particular date and time for appearing before them for such an enquiry/investigation.

    b)The minutes of the enquiry shall be recorded in the general diary/station diary/daily diary of the police station.

    c)The police officer shall refrain himself  or herself from harassing persons called upon for enquiry/investigation.

    d)The guidelines stipulated for preliminary enquiry or registration of FIR by the Hon’ble Supreme Court in Lalita Kumari Vs. Government of Uttar Pradesh and others [2014 (2) SCC (1)] shall be strictly adhered to.   

    6.With the above observations and direction, the Criminal Original Petition stands allowed.

                                    11.12.2017
Index:Yes/No
Internet : Yes/No

ak

To

1. The Deputy Commissioner of Police,
     Mylapore Range,
     Mylapore,
     Chennai-600 004.

2.The Inspector of Police,
    Mylapore Police Station,
    Mylapore,
    Chennai-600 004.

3.The Public Prosecutor,
    High Court, Madras.
M.S.RAMESH.J,

ak

Crl.O.P.No.27191 of 2017

11.12.2017

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SC judgment mandates registration of FIR for ex-facie cognizable offence, else preliminary inquiry to ascertain if cognizable offence – Lalita Kumari vs Govt.Of U.P.& Ors on 12 November, 2013

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Following Supreme Court judgment settles the point and removes confusion about what powers does police have in terms of deciding when or when not to register an FIR when a complaint is made to police station (PS).  Generally it is seen that if a woman approaches police, an FIR is registered without much trouble (subject to first procedure CAW/so called counselling and now family welfare committee provision in limbo), no matter how weak or incredulous the evidences may appear when the police actually gets to investigation state.  So information in this article can be utilized by husbands who need to approach police in case of assault, threats, or other criminal complaints against wife/in-laws.  That’s where knowledge of law is needed since one’s gender is not the politically-correct one.

Lalita Kumari vs Govt.Of U.P.& Ors on 12 November, 2013

Above judgment is the authoritative direction to police by SC on process and steps needed to be followed before registering an FIR, and also the guidelines on what is to be recorded in general diary of PS etc, whether or not if an FIR is registered, and whether or not if a preliminary inquiry is conducted.

The judgment clarifies Section 154 of CrPC the bare act of which is given below:

Section 154 – Information in cognizable cases

1. Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

… skipped provisions on certain crimes against women etc…

2. A copy of the information as recorded under Sub-Section (1) shall be given forthwith, free of cost, to the informant.

3. Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in Sub-Section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

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Operative part of above judgment which clarifies powers and duties of police under Sec 154(1) :

————————————————-

110) Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.

Conclusion/Directions:

111) In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

112) With the above directions, we dispose of the reference made to us. List all the matters before the appropriate Bench for disposal on merits.

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What above means is that for matrimony related cases, there is likelihood of a preliminary inquiry being conducted if ex-facie (on its face) a cognizable offence is not clear.  Note that preliminary inquiry is a relatively limited procedure and is not the same as investigation which is done after registration of FIR.

This information on right legal process can be useful to husbands who need to approach police in case of assault, threats, or other criminal complaints against wife/in-laws.  It can also be used by those facing false rape/false molestation cases in case they have evidence of extortion/threats from other side, for which complaint to police can be made for registration of FIR.

The post SC judgment mandates registration of FIR for ex-facie cognizable offence, else preliminary inquiry to ascertain if cognizable offence – Lalita Kumari vs Govt.Of U.P.& Ors on 12 November, 2013 appeared first on Men Rights India.

Prenuptial discussion reports in Ministry of WCD – more women empowerment, nothing to safeguard or protect men

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Men suffering from false cases related to matrimony have been sharing hope on social media that if pre-nuptial agreements were made legal and valid in India, then it will help men in future, or expressing a narrower implied interest – protect themselves in second marriage.

Some have understood the point that even in West where there is more of a regime and cultural acceptance of adhering to letter of law and to contractual obligations, pre-nuptial agreements are easily thrown out in family courts, when they are deemed to be unfair – to women of course.

A news was reported few months back that Prenuptial agreements were being discussed inside government especially inside Ministry of Women and Child Development (WCD), headed by Ms Maneka Gandhi.  So it became necessary to fish out the discussions happening in WCD and other departments like NCW to lay to rest once and for the doubts about whether pre-nuptial agreements regime will help husbands/men or not.

So following RTI was filed few months to WCD ministry back citing above news requesting internal discussion/reports/proposals on pre-nuptial agreements.

RTI details requesting for discussion/reports/proposals on pre-nuptial agreements

Kindly refer to attached news story about discussion and proposed meeting by WCD ministry on pre-nuptial agreements.  It also refers to similar proposal being discussed in year 2015 which was reportedly abandoned.

Kindly share the following

1. Documents/records/information/meeting discussion minutes/other relevant information as applicable about Pre-nuptial agreements related discussions in WCD ministry in year 2015.

2. Documents/records/information/meeting discussion minutes/other relevant information as applicable about Pre-nuptial agreements related proposals and discussions currently in WCD.

3. Any studies/data/statistics/documents/records/any relevant information about NRI brides being abandoned.

4. Any information/records on whether wider public will be invited now or in near future about feedback on current proposal making legal pre-nuptial agreements in India.

On filing RTI and finally upon filing first appeal, following documents and reports were made available as part of RTI.  Initially Ministry of WCD had sent one page evasive reply, and only after filing first appeal was the above document was received (Hint: you may need to file first appeal, RTI is usually not enough for WCD).

One can quickly scan or peruse the RTI reply in detail, and it is easy to see that the intent, objectives of pre-nuptial agreements as per these documents are SOLELY to grant more opportunities, ‘equality’, property rights, maintenance/alimony, and legal rights to wife; and there is nothing intended in them which could improve a husband’s rights upon separation or divorce.

DOWNLOAD PDF: WCD prenuptial agreements discussions RTI Appeal Reply Jun 2018.pdf

Here are major points which can be discerned from above documents:

  1. It should be a warning to all men who are trying to support any law for bringing in pre-nuptial agreements in India, hoping it will safeguard them.
  2. The benefits given to wife under pre-nuptial agreements will be in ADDITION to any ‘rights’ she can get by filing cases on husband, so it is foregone conclusion that it will only create additional burdens and responsibilities on married men, and CANNOT safeguard them from false cases and IPC 498A/406, DV Act, CrPC 125, maintenance and so on.
  3. The only possibility is that a carefully worded pre-nuptial agreement could safeguard someone to some extent from dowry harassment allegations at the time of marriage.  Of course, it cannot safeguard anyone from false dowry harassment allegations AFTER marriage, which is usually the fond hope expressed!  More details about this are given in this article (read section “Can an affidavit from wife protect from further false cases?”)

The PDF above is in image format, so text extraction is not easy. It will be good if someone can create a text summary of the important information, which can be shared with all readers.

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Bare acts of basic laws, matrimonial, and relevant laws men should know

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A reader has sent a compilation of links to bare acts available in PDF format on government websites.  One may use them as needed.  Knowing and reading bare acts is very important since many a time it is seen that people keep discussing endlessly on a topic without having even bothered to read the relevant IPC or section of bare act.

Bare act means the basic text of law as published in government gazettes without any further commentary, analysis, citations.

law book with gavel

 

Details below:

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Men are ignorant of laws, hence fooled/ harrassed by police, advocates, court staff. Knowledge of laws is essential to know our rights to defend ourself & live peacefully.

Please include useful web-links to laws, in your website in a separate tab. You may organize/ reorder in your preferred style.

– – – – – – Basics – – – – – –

Constitution of India: Fundamental rights, directive principles of state policy & fundamental duties. https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf
Glossary of legal terms: http://dictionary.law.com/Default.aspx?letter=A
http://www.legislative.gov.in/legal-glossary

– – – – – – Family/civil Laws – – – – – –

Courts laws eg FCA http://DoJ.gov.in/acts-and-rules
Civil procedure code http://indiacode.nic.in/acts/8.%20Code%20of%20Civil%20Procedure,%201908.pdf
Contempt of courts act http://doj.gov.in/sites/default/files/contempt.pdf
Limitation act https://indiacode.nic.in/acts/9.%20Limitation%20Act,%201963.pdf
Indian/dharmic religions family laws are bundled as Hindu acts. Islamic commandments is additional for Muslims.
Hindu Adoptions & Maintenance Act  http://www.childLineIndia.org.in/Child-Related-Legislations.htm
Hindu Marriage Act   http://www.delhihighcourt.nic.in/library/acts_bills_rules_regulations/The%20hindu%20marriage%20Act,%201955.pdf
Read your state civil rules of practice also.
Eg http://patnaHighCourt.gov.in/Rules.aspx

– – – – – Child Laws – – – – –

JJA, CPCRA, GWA, HMGA http://NCPCR.gov.in/index1.php?lang=1&level=0&linkid=18&lid=588
National Charter & Policy for Chidren http://www.childLineIndia.org.in/Child-Related-Policies.htm
UNCRC http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
Law Commission on joint custody http://lawCommissionOfIndia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf

– – – – – Criminal Laws – – – – –

India Penal Code  http://ecourts.gov.in/sites/default/files/The%20Indian%20Penal%20Code_1.pdf
CrPC  http://ecourts.gov.in/sites/default/files/Code%20of%20Criminal%20Procedure.pdf
Indian Evidence Act  https://jhpolice.gov.in/sites/default/files/INDIAN_EVIDENCE_ACT_1872.pdf

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Citations about perjury, prosecution under CrPC 340, false allegations etc

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A reader has compiled some citations related to prosecution for false allegations, perjury filed under CrPC 340 etc.

This article should also be referred to for the IPC sections which may be applicable for a case filed under CrPC 340.

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Citations below:

———————————————————————

        The  plaintiff  humbly requests the Hon’ble Court to consider the following  citations  where
         various honourable apex courts condemned the act of perjury and explained why it is so
         important to prosecute the wrong doers in so many words.


Hon‘ble Supreme Court in Swaran Singh v. State of Punjab, (2000) 5SCC 668 noted

. “36. …… Perjury has also become a way of life in the law courts. A trial Judge knows that the witness
is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even
file a complaint against him. He is required to sign the complaint himself which deters him from filing
the complaint….. that has made the situation reach such levels where pleadings contain false averments
and parties make false averments with impunity in the hope that in all probability the opposite party
will cough up something, and even if he does not, in the end he will have the last laugh, for a
prosecution of perjury, although consciously committed and persisted in, will have a probability of
punishment as good as nil. The gain far exceeds the risk.

In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the Hon‘ble Supreme
Court noted:

”For many centuries, Indian society cherished two basic values of life I.e. ‗Satya‘ (truth) and ‗Ahimsa‘
(non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these
values in their daily life. Truth constituted an integral part of the justice-delivery system which was in
vogue in pre-Independence era and the people used to feel proud to tell truth in the courts irrespective
of the consequences. However, post-Independence period has seen drastic changes in our value system.
The materialism has overshadowed the old ethos and the quest for personal gain has become so intense
that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and
suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped
up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to
falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this
new creed of litigants, the courts have, from time to time, evolved new rules and it is now well
established that a litigant, who attempts to pollute the stream of justice or who touches the pure
fountain of justice with tainted hands, is not entitled to any relief, interim or
final.”


In the Supreme Court of India , in Civil Appeal Nos. 6342-6343 OF 2012
in case of V.Chandrasekaran&Anr. vs Administrative Officer &Ors. on
18 September, 2012

Para 34. He who seeks equity must do equity. The legal maxim “Jure Naturae
Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem”,
means that it is a law of nature that one should not be enriched by causing loss or
injury to another (Vide: The Ramjas Foundation &amp; Ors. v. Union of India &
                 .
Ors., AIR 1993 SC 852; Nooruddin v. (Dr.) K.L. Anand, (1995) 1 SCC 242; and
Ramniklal N. Bhutta&Anr. v. State of Maharashtra &Ors., AIR 1997 SC 1236).


In Civil Appeal No. 5239 of 2002 in the Honorable Supreme Court of
India dated 03.12.2009 passed by the Hon’ble Justice G.S. Singhvi and
Hon’ble Justice Asok Kumar Ganguly in Dalip Sing vs the State of U.P..

Para 1:
“In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time,
evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of
justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief,
interim or final.”

In Padmawati and Ors v. Harijan Sewak Sangh, 154 (2008) DLT 411, the
learned Single Judge of Delhi High Court (S.N. Dhingra, J.) noted as
under:
“ 6.  The case at hand shows that frivolous defences and frivolous litigation is a
calculated venture involving no risks situation. You have only to engage
professionals to prolong the litigation so as to deprive the rights of a person and
enjoy the fruits of illegalities. I consider that in such cases where Court finds that
using the Courts as a tool, a litigant has perpetuated illegalities or has
perpetuated an illegal possession, the Court must impose costs on such litigants
which should be equal to the benefits derived by the litigant and harm and
deprivation suffered by the rightful person so as to check the frivolous litigation and
prevent the people from reaping a rich harvest of illegal acts through the Courts.
One of the aim of every judicial system has to be to discourage unjust enrichment
using Courts as a tool. The costs imposed by the Courts must in all cases should be
the real costs equal to deprivation suffered by the rightful person.

9. Before parting with this case, I consider it necessary to pen down that one of the
reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by
the litigants and which is dragged as long as possible.
Even if these litigants ultimately loose the list, they become the real victors and have the last laugh.
This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts
must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person
deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can
only be sustained if the persons on the right side of the law do not feel that even if they keep fighting
for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after
20 or 30 years would make wrong doer as real gainer, who had reaped the benefits for all those years.
Thus, it becomes the duty of the Courts to see that such wrong doers are discouraged at every step and
even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer
the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use
one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always
loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be
redeemed by the Courts.
The Court imposed costs of `15.1 lakhs. Against this, Special Leave to Appeal (Civil)
No 29197/2008 was preferred to the Supreme Court. On 19.03.2010, the Hon‘ble
Supreme Court passed the following order:
―We have heard learned counsel appearing for the parties. We find no ground to
interfere with the well-considered judgment passed by the High Court. The Special
Leave Petition is, accordingly, dismissed.”

A similar sentiment had been expressed by the Karnataka High Court in
A. Hiriyanna Gowda v. State of Karnataka, 1998 Cri.L.J. 4756:
1. The present application is filed under Section 340, Cr. P.C. and undoubtedly
involves a power that the Courts have been seldom exercising. It has unfortunately
become the order of the day, for false statements to be made in the course of
judicial proceedings even on oath and attempts made to substantiate these false
statements through affidavits or fabricated documents. It is very sad when this
happens because the real backbone of the working of the judicial system is based
on the element of trust and confidence and the purpose of obtaining a statement on
oath from the parties or written pleadings in order to arrive at a correct decision after evaluating the
respective positions. In all matters of fact therefore, it is not only a question of ethics, but an inflexible
requirement of law that every statement made must be true to the extent that it must be verified and
correct to the knowledge of the person making it. When a client instructs his learned Advocate to draft
the pleadings, the basic responsibility lies on the clients because the Advocate being an Officer of the
Court acts entirely on the instructions given to him, though the lawyer will not be immune from even a
prosecution. If the situation is uncertain it is for his client to inform his learned Advocate and
consequently if false statements are made in the pleadings the responsibility will devolve wholly and
completely on the party on whose behalf those statements are made.

2. It has unfortunately become common place for the pleadings to be taken very
lightly and for nothing but false and incorrect statements to be made in the course of judicial
proceedings, for fabricated documents to be produced and even in cases
where this comes to the light of the Court the party seems to get away because the
Courts do not take necessary counter-action. The disastrous result of such leniency
or indulgence is that it sends out wrong signals. It creates almost a license for
litigants and their lawyers to indulge in such serious malpractices because of the
confidence that no action will result. To my mind, therefore, the fact that the
petitioner has pressed in this application requires to be commended because it is a
matter of propriety and it is very necessary at least in a few glaring cases that an
example be made of persons who are indulging in such malpractices which
undermine the very administration of justice dispensation system and the working of the Courts. This
will at least have a deterrent effect on others.

5. It is true that the power that is now being exercised is seldom exercised, but I
am firmly of the view that in the interest of the purity of the working the Courts that it is absolutely
essential to take such corrective action whenever an instance
of the present type arises.

A Division Bench of Delhi High Court over two decades back in
RajendraJaina Towers (P) Ltd. v. Delhi Development Authority 33 (1987)
DLT 216 held as under:

27. All the statements in paragraph 11, to which I have referred, were material for
the purpose of taking a decision in the case. As I have tried to show, they were
deliberately made and carefully worded. Their object was to mislead and overreach
the court. The perjury was daring and atrocious. Probably, Mr. Rajender Jain thought
it was worth taking the risk because the courts are so reluctant to prosecute for
perjury. That is the general impression which has caused perjury to become so
rampant in our courts and resulted in vexatious litigation. It is clearly expedient in the interests of
justice, that Mr. Rajender Jain be prosecuted for the statements made in paragraph11 of the petition,
which he has incorporated by reference in his affidavit. The Court ordered the Registrar of this court to
make a complaint in writing against Mr. Rajender Jain, for having committed offences under Sections
191, 192 and 193 of the Indian Penal Code to the Magistrate having jurisdiction

The post Citations about perjury, prosecution under CrPC 340, false allegations etc appeared first on Men Rights India.

Exemption from personal appearance to be granted for reason of long distance between accused’s residence and place of trial–Supreme Court in IPC 498A/DP Act case

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This March 2018 judgment from Supreme Court might just have created an important precedent and reasoning that a long distance between place of trial from residence of accused persons is a valid and reasonable ground for allowing exemption from personal appearance of accused in a criminal trial.  The case pertains to IPC 498A and Dowry Prohibition act, however the judgment does not seem to be limited in its applicability, so it can be used for cases filed under other IPC sections, too.

Incidentally, the appellants/accused in this case are family members of Arnesh Kumar who was the appellant in the July 2014 SC judgment which had resulted in curtailing powers of police from conducting arbitrary arrests, and of magistrates from mechanically allowing arbitrary arrests.  In a way, that judgment curtailed abuse of police’s powers of arrest, and this judgment could curtail harassment of all members of accused husband’s family from travel to court and appearance; when the reality is that large number of IPC 498A/406 type of cases are filed not by genuine complainants with desire for justice, but mainly by rogue females/in-laws who have gone into marriage only with a view towards getting a quick divorce and extorting a fat alimony settlement from husband and his family.

It is a bit difficult to analyze the judgment without knowing the dates and disposal of various applications filed.  The timeline of various applications and their disposal is given below, as gleaned from the judgment itself.

 

……….<to be done>……….

 

The important points from judgment which can be noted are:

  1. The appellants (all accused except accused No.1 Arnesh Kumar) had filed application for exemption from personal appearance in the criminal trial under IPC 498A and DP Act 4, on the ground of long distance of 1,750 km between their residence in Pune, and place of trial in Patna, Bihar.
  2. It appears that no other ground like ill-health or old age etc of the appellants was raised – which flies in the face of conventional wisdom of advocates in using these points in bail and similar applications wherever accused are senior citizens.  Also, using such a reasoning cannot work for those of the accused who are not senior citizens.
  3. Supreme Court has noted down occupation of the appellants – parents who are retired, another who is a student, and another who is running a business, all of them residing in Pune.
  4. However, the reasoning does not seem to be anything to do with disruption of business or studies etc of the various appellants, merely the fact about long distance between place of trial and residence of appellants.  This is an interesting point because in trying to make an application strong, one would like to mention more number of points like age of accused, health condition, disruption to profession/business, and so on.  The problem with that approach is that it won’t work so well for those of the accused who are retired.
  5. Supreme court has rejected magistrate court’s reasoning to do with “hale and hearty” accused persons, and other technicalities raised by magistrate court and High Court of Patna. The point about conciliation and conjugal harmony seems absurd because criminal law is meant to punish the wrongdoers, and is not a mechanism to first drag husband and his whole family into criminal cases, and then hoping that pressure of arrest/criminal trial/appearance of accused will result in creating harmony!  Also, the statement of objects and reasons of IPC 498A and Dowry Prohibition Act would not refer to creation of conjugal harmony as the objectives.

   (iii)   Their   appearance   is   also desirable   for   the   purpose   of conciliation since the very enactment of Section   498A   of   IPC   and   Dowry Prohibition   Act   primarily   meant   for restoration of conjugal harmony.

In any case, since the accused No. 1/husband had not applied for personal exemption from personal appearance, this reasoning of magistrate was also rejected by SC, since he could always be present at trial dates if that could lead to conciliation between the parties.

Ultimately, personal exemption to accused family members except husband has been granted in this case on sole fact of long distance between place of trial and residence.

So this judgment can be utilized by those accused in IPC 498A/406/Dowry Prohibition type of cases, especially all those apart from A1 (Accused No. 1) whose names are thrust into FIR mainly for purpose of bringing pressure on whole family of husband hoping for a quicker settlement and extortionary alimony for the crooked wife/in-laws.

It can be used by those accused of other crimes under IPC, too, if presence of some of the accused can be argued to be sufficient for purpose of trial.

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Full judgment text below:
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1

 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.387 OF 2018
(arising out of SLP(Crl.)No.6786 of 2017)

SRI RAMESHWAR YADAV & ORS.                           … APPELLANTS

 

VERSUS

TEH STATE OF BIHAR & ANR.                            … RESPONDENTS

 

 

 

J U D G M E N T

 

ASHOK BHUSHAN, J.

This appeal has been filed against the

judgment dated 17.04.2017 of the Patna High

Court by which judgment application filed by

the accused-appellants under Section 482 of the

Code   of   Criminal   Procedure   challenging   the

order   dated   13.08.2013   passed   by   the   Sub-

Divisional Judicial Magistrate, Patna has been

dismissed by the High Court.

2.       Brief facts necessary to be noted for

deciding the appeal are:

2

 

The second respondent filed a complaint in

the   Court   of   Sub-Divisional   Judicial

Magistrate, Patna alleging offence committed by

the   accused   as   well   as   Arnesh   Kumar,   her

husband.   The   Magistrate   vide   order   dated

11.10.2012 finding a                   prima facie           case under

Section   498A   and   Section   4   of   the   Dowry

Prohibition Act summoned the accused as well as

Arnesh Kumar, husband of the complainant. The

accused   as   well   as   Arnesh   Kumar   filed   an

application for anticipatory bail during the

pendency of the said application. Non-bailable

warrants   were   issued   by   the   Magistrate   on

23.12.2012. All the accused that is appellants

as well as Arnesh Kumar filed an application

dated 17.01.2013 praying for recall of non-

bailable   warrant   and   dispensing   with   their

physical   appearance   in   the   case.   It   was

appellants’   case   that   said   application   was

filed because appellant No.1, father of Arnesh

Kumar is a retired Army Official residing in

Pune with appellant No.2 and other appellants

3

 

were also residents of Pune, Maharashtra and

they have to come from a distance. It was

prayed by the accused that they be exempted

from the personal appearance in the case. All

the accused except Arnesh Kumar, husband of

complainant   were   granted   anticipatory   bail.

Anticipatory bail was granted by the District

and Sessions Judge, Patna on 21.06.2013 to all

the accused except Arnesh Kumar, husband of the

complainant. The Sub-Divisional Magistrate by

order dated 13.08.2013 rejected the application

filed by the accused under Section 205 Cr.P.C.

 

3.       While   rejecting   the   application   on

13.08.2013, the Magistrate gave the following

reasons:

(I) Petitioners appear to be hale and
hearty and are not suffering from any
type of disease which may be impediment
in appearing before the court.

(ii)Nature of offences requires that
accused-petitioners   and   also   the
complainant should be present before the
court preferably on each and every date
expecting good sense prevails upon them.

(iii)   Their   appearance   is   also
desirable   for   the   purpose   of

4

 

conciliation since the very enactment of
Section   498A   of   IPC   and   Dowry
Prohibition   Act   primarily   meant   for
restoration of conjugal harmony.

 

4.     Challenging the order dated 13.08.2013, an

application under Section 482 Cr.P.C. was filed

which has been dismissed by the Patna High

Court. The High Court dismissed the application

taking a new ground that a prayer for exemption

from   personal   appearance   under   Section   205

Cr.P.C. can only be made at the stage of first

appearance of the accused. Once the accused

appears before the court in person without

making any application for dispensing with the

personal appearance under Section 205 Cr.P.C.,

at a subsequent stage, such an application

would not be maintainable. Aggrieved by the

said order this appeal has been filed.

5.       We have considered the submissions of the

learned counsel for the parties and perused the

records.

5

 

6.     Section   205   Cr.P.C.   and   Section   317

Cr.P.C. which are relevant in this case are

extracted:

“Section           205.   Magistrate   may
dispense with personal attendance of
accused.     —               (1)   Whenever   a
Magistrate issues a summons, he may,
if he sees reason so to do, dispense
with the personal attendance of the
accused and permit him to appear by
his pleader.

(2)   But   the   Magistrate   inquiring
into or trying the case may, in his
discretion,   at   any   stage   of   the
proceedings,   direct   the   personal
attendance of the accused, and, if
necessary, enforce such attendance
in the manner hereinbefore provided.

317.   Provision   for   inquiries   and
trial being held in the absence of
accused in certain cases                 .—(1) At any
stage of an inquiry or trial under
this   Code,   if   the   Judge   or
Magistrate is satisfied, for reasons
to be recorded, that the personal
attendance of the accused before the
Court   is   not   necessary   in   the
interests of justice, or that the
accused   persistently   disturbs   the
proceedings in Court, the Judge or
Magistrate may, if the accused is
represented by a pleader, dispense
with his attendance and proceed with
such   inquiry   or   trial   in   his
absence, and may, at any subsequent
stage of the proceedings, direct the
personal attendance of such accused.
(2) If the accused in any such case
is not represented by a pleader, or

6

 

if the Judge or Magistrate considers
his personal attendance necessary,
he may, if he thinks fit and for
reasons   to   be   recorded   by   him,
either   adjourn   such   inquiry   or
trial, or order that the case of
such accused be taken up or tried
separately.”

7. The Magistrate has rejected the application

filed under Section 205 Cr.P.C. on different

grounds as noticed above. The High Court took

entirely   new   grounds   for   dismissing   the

application filed under Section 482 Cr.P.C.

without adverting to the grounds which were

taken   by   the   Magistrate   for   declining   the

prayer.

8.       We first take up the grounds given by the

High Court for rejecting the application. The

High   Court   has   observed   that   prayer   for

exemption   from   personal   appearance   under

Section 205 Cr.P.C. can only be made at the

stage of first appearance of the accused and

once the accused appears before the court in

person   without   making   any   application   for

dispensing with the personal appearance under

7

 

Section 205 Cr.P.C. at a subsequent stage, such

an application would not be maintainable.

9.     The   High   Court   has   noticed   that   the

accused had already appeared after obtaining

the order of pre-arrest bail and furnishing

bond and sureties to the satisfaction of the

court. The pre-arrest bail was granted to the

accused by the District and Sessions Judge by

order   dated   21.06.2013   and   thereafter   the

accused appeared before the court as has been

noticed in paragraph 8 of the judgment of the

High court itself.

10.  The observation of the High Court that the

accused has filed application under Section 205

Cr.P.C. at a subsequent stage after appearing

before the court is factually incorrect. The

application was filed by the accused under

Section 205 Cr.P.C. on 17.01.2013. Thus, the

application under Section 205 Cr.P.C. was filed

prior to the appearance in the court and the

same would have very well been considered by

the Magistrate despite their appearance in the

8

 

court after obtaining the pre-arrest bail. The

grant of exemption from personal appearance in

the court on each and every date was required

to be considered in view of the fact that

application was filed on 17.01.2013 much before

their appearance in the court. Further, the

Magistrate had not rejected the application on

the   ground   that   application   is   not

entertainable after appearance of the accused

before the court. We, thus, are of the view

that aforesaid ground given by the High Court

for rejecting the application is unfounded.

There is one more reason due to which the High

Court’s order cannot be sustained.

11. The High Court in its order observed that

there is another provision that is Section 317

Cr.P.C. which gives discretion to the court to

exempt a person from personal appearance. The

High Court observed that the remedy available

to the accused was under Section 317 Cr.P.C.

and not under Section 205 Cr.P.C. Section 317

Cr.P.C. which empowers the Magistrate, at any

9

 

stage of inquiry or trial for reasons to be

recorded to exempt attendance of the accused.

The Magistrate was not powerless to consider

the prayer under Section 317 Cr.P.C. as per the

view taken by the High Court. Thus, we do not

find   any   impediment   in   the   power   of   the

Magistrate   to   consider   the   application   of

accused   for   their   exemption   from   personal

appearance.

12.  Now, we advert to the reasons given by the

Magistrate for rejecting the application. As

noticed   above,   first   reason   given   by   the

Magistrate is that all the accused appear hale

and hearty and there is no suffering from any

type of disease which may be impediment in

appearing before the court. Application was not

filed by the accused on the ground that they

suffer from any physical illness and hence the

said reason given by the Magistrate is wholly

out of place. The second reason is that accused

and complainant should be present before the

court on each and every date expecting good

10

 

sense prevail between them. We fail to see this

as any valid ground for not considering actual

grounds   given   by   the   accused   for   seeking

exemption. Third ground given was regarding

conciliation which requires the appearance of

the accused desirable.

13. With regard to this ground it is sufficient

to notice that application under Section 482

Cr.P.C. was not filed by the husband, Arnesh

Kumar   whose   pre-arrest   bail   was   already

rejected. The present appellants, thus, were

not   pressing   application   under   Section   482

Cr.P.C. for Arnesh Kumar, the husband who could

have very well participated in the proceedings.

Thus, the above ground was also not available

for   rejection   of   the   application.   In   the

application the grounds which were given by the

appellants was that, appellant No.1 father of

Arnesh Kumar is retired Army personnel and

residing   in   Pune   with   his   wife   that   is

appellant No.2. Appellant Nos.3 and 4 were also

residing at Pune. Arnesh Kumar, the husband was

11

 

working at Hyderabad. The Magistrate has not

considered the grounds which were taken by the

appellants for seeking exemption. It was on the

record before the High Court that distance

between residence of the accused and the place

of trial at Patna is 1750 kms. It was further

stated that appellant No.3, Ashok Kumar Yadav

was a business man and running Company in Pune

and appellant No.4 was a student of BCA in

Pune.   Taking   into   consideration   the   entire

facts and circumstances and the grounds taken

by the appellants in their application under

Section   205   Cr.P.C.   as   well   as   in   the

application under Section 482 Cr.P.C. filed

before the High Court, we are of the view that

sufficient grounds were made out for granting

exemption   from   personal   appearance   of   the

appellants   in   the   trial.   The   Magistrate

committed error in not adverting to the grounds

taken for praying the exemption and rejected

the   application   on   the   reasons   which   were

unfounded. The Magistrate under Section 205

12

 

sub-Section (2) Cr.P.C. is empowered at any

stage to direct personal appearance of the

accused hence as and when personal appearance

of the accused is required the Magistrate is

empowered   to   issue   necessary   orders   if   so

decides.

14. In the result, the appeal is allowed, the

judgment and order of the High Court dated

17.04.2017   as   well   as   order   of   the   Sub-

Divisional Judicial Magistrate dated 13.08.2013

are   set   aside,   application   filed   by   the

appellants   under   Section   205   Cr.P.C.   is

allowed.   The   personal   appearance   of   the

appellants is exempted. This, however, shall

not preclude the Magistrate to pass appropriate

orders under Section 205(2) Cr.P.C. if and when

personal   appearance   of   the   appellants   is

required.

 

……………………..J.
( A.K. SIKRI )

 

……………………..J.
NEW DELHI,                                      ( ASHOK BHUSHAN )
MARCH 16, 2018.

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Feedback on Strengthening the Justice Delivery Process to Rajya Sabha Secretariat

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As per this press release dated 3rd Aug 2018 by DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE
ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE, feedback from general public is solicited towards “Strengthening the Justice Delivery Process”.

Link to press release: http://164.100.47.5/committee_web/Press_ReleaseFile/18/104/194P_2018_8_10.pdf

Full text of press release below:

DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE
ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE
The Department-related Parliamentary Standing Committee on Personnel,
Public Grievances, Law and Justice headed by Shri Bhupender Yadav, M.P.,
Rajya Sabha, is presently examining the subject “Strengthening the Justice
Delivery Process”.

2. In this process the Committee may inter-alia examine issues like
adequate Judges strength, pendency of cases in various courts,
selection/promotion and training of judges/judicial officers, language of courts,
relevance of tribunals in judicial system, infrastructure and ICT support to
subordinate judiciary, All India Judicial Service, strengthening legal aid system
and promoting Alternative Dispute Resolution Mechanism, etc. The Committee
solicits views thereon by 31st August, 2018.

3. Those desirous of submitting memoranda to the Committee may send/
e-mail the same in English and Hindi to Shri A.K. Sahoo, Addl. Director, Rajya
Sabha Secretariat, Room No. 012, A-Block, Ground Floor, Parliament House
Annexe Ext. Building, New Delhi-110001, Tel: 011-23035365, E-mail:
rs-memocpers@sansad.nic.in. Those who are willing to appear before the
Committee for oral evidence may indicate so in their memorandum. The
Committee’s decision in this regard shall, however, be final. The memoranda
submitted to the Committee shall be treated as confidential.

3rd August, 2018

 

Note the last date mentioned above is 31 Aug 2018, however as per another advertisement below dated 18 Aug, it could very well be accepted till 1 Sep 2018, since the advertisement appears on 18 Aug 2018, and 15 days time is allowed from date of publication of advertisement.  See advt below:

Feedback-on-Strengthen-Justice-Delivery-Process

Here are some common points which can be given as feedback to the committee.  You can add yours or change as required, and give your own reasoning too.  Brief points are given followed by explanations later, but any other style can be adopted, too.

Email the points to rs-memocpers@sansad.nic.in giving your full name, address, contact number.  A PDF of the points and explanation below is also given here, which can be sent as attachment in email.

Points/Feedback on strengthening the Justice Delivery Process

1. Benchmark justice delivery in Indian courts against justice delivery and processes in other countries.

2. Send SMS updates to registered mobile phones of litigants and advocates on record after each hearing informing next date and status of case.

3. Send SMS updates to registered mobile phones of litigants and advocates on record in case presiding office/judge has to be absent from court due to leave/training etc and it is known in advance.

4. All courts need to have mikes on judges’ desk connected to speaker system so that the voice of judge is audible throughout the court hall.

5. Need for audio recording/video recording of court proceedings.

6. Alternative Dispute Resolution Mechanism like Lok Adalat would be more useful if litigants are initially informed in a session how the process works, what to expect.  Even explanatory videos can be created in all Indian languages and uploaded on free sites like YouTube so that litigants can know in advance what to expect.

7. Similarly videos in major Indian languages can be created to explain process and steps involved in a complete trial in various courts like civil courts, consumer forums, family courts, criminal courts, and uploaded on YouTube etc.  The reasoning that such information need not be disseminated because advocates can do it for clients is not a sound reasoning, since for public it is important to know what to expect BEFORE approaching advocate.  Also, some people may want to represent themselves in court as party in person, some people may not be able to afford an advocate, some may need legal aid, and so on.

8. Similarly, the concept of legal aid, who are eligible, how and where to approach to get legal aid, can be explained in videos in major Indian languages so public can access them easily and for free.

Explanations and Reasoning

1. The delay in Indian justice system are well publicized, however the discussion has not moved beyond well known factors like lack of infrastructure/court halls, lesser number of judges, etc.; without a wider analysis of other factors and an analysis which could connect causes with effects, and measuring which factors contribute to delays and by how much time.  Without doing such analysis, it becomes an exercise in offering excuses and platitudes.  For example, nothing is known behind reasons that though the code of civil procedure mention conducting trial on a day by day or similar basis, routinely dates are given running into several months.  Same is the case in criminal courts, where importance of speedy trial is considered even more important.  In this regard, it is important to compare how justice delivery, hearing dates, and whole case management is done in other countries which are doing much better on disposing off the cases within reasonable time.  Other points which can be compared relate to utility of recording transcript of court proceedings vs recording of statement by presiding officer during cross-examination etc.  It is seen that lot of the delay in court proceedings is due to time consuming dictation during oral evidence, and cross-examinations.

2. Most people in India are now connected to a mobile network, and SMS is a ubiquitous mode of communication which can be utilized to inform public of court hearings and situation where a judge is going on leave on the next hearing date.  It is seen that litigants have to travel long distance to attend a court hearing, and only upon arrival in court in morning of hearing date, they come to know that the presiding officer/judge is on leave.  This is a waste of not only human capital and time, but also resources like wasted fuel, transport costs, lodging costs, and so on.  One can get latest updates via SMS of even cricket scores, so it is not impossible that SMS updates about both leaves of presiding officers, and case hearing status/date cannot be communicated.  It should also be made incumbent upon advocates on record to inform clients whenever a trial/hearing is postponed.  SMS updates are already being sent to complainants’ mobile numbers by consumer forums after each hearing date.

3. Though Indian courts follow the “Open Court” principle, proceedings in most of the Indian courts are unintelligible to public/litigants/advocates who are present in the court hall and far away from the bench. Ref: https://en.wikipedia.org/wiki/Open_court_principle

One chief reason for the same is that most lower courts (except high courts and Supreme court) do not have a mike/audio system. Ref: https://indianexpress.com/article/india/rs-96-lakh-used-to-renew-supreme-court-mic-system-that-few-judges-use-rti-reply-4897408/

It should be mandated that all courts have mike/audio speakers and which are mandated to be used for court proceedings.  Not having them or not using them would directly be against the principle of “Open Court”, and unless a proceeding is being done in camera, there can never be any valid or reasonable objection to the use of mike and speaker system so that the voice of judge/presiding officer is audible in the whole of court.  If the public cannot listen to what is being said, then the proceedings cannot be said to be done in an open court.

4. Suggestion for audio/video recordings of court proceedings have already been approved to some extent.  These need to be followed up and put into practice across all courts of the country.  It will go a long way in creating confidence in minds of public that the justice delivery process is a transparent and open process, and manipulating or perverting it is not easy.

5. The other points relate to educating general public about legal procedures, court trial procedures, legal aid, alternative dispute resolution etc. Video mode of information/education will be most practical because most people can grasp information presented in a well-made video, vs reading content of an article.  Also, even an illiterate person can listen and see a video so in terms of making justice accessible to all, it is a practical idea.  Also the concept of “ignorance of law is not an excuse” is a valid concept, but it also creates a corresponding duty on government to make knowledge and information about law and legal procedures accessible to general public, in an easy and accessible manner.

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Modified directions in IPC 498A cases upon review of Rajesh Sharma judgment by Supreme Court

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The Rajesh Sharma judgment with new guidelines to be followed in IPC 498A cases was pronounced in 2017 by a two judge bench, and it was much celebrated by some people and hailed as a path-breaking judgment, as if following of those guidelines would automatically take away all fear of arrest, roping in of all family members, or the possibility of facing criminal trial in Indian system for 5-10 years!

Several guidelines/directions were issued in that judgment, and the gist of those were: constitution of Family Welfare Committees (FWC), designated IO for IPC 498A cases, possibility/promotion of culture of less arrests/more settlements (under aegis of FWC), easier bail, recovery of articles, personal exemption to family members, etc.

The point about Family Welfare Committees (FWC) had caught the imagination of may 498A accused or those fearing institution of such cases, and it was thought that these committees will listen to husband’s version of story or take into account his evidence etc, since CAW and police don’t listen to them.  It was basically a pie in the sky.

In any case, the most important point of the review of Rajesh Sharma judgment is that the constitution of Family Welfare Committees have been taken out, since it was deemed to be against provisions of Code of Criminal Procedure, and not something which could fit into a framework of an issued guideline by constitutional court.

This judgment refers to many previous judgments on IPC 498A, as well as others relating to law of and justification behind arrests, filing of FIR etc (Lalita Kumari) for a cognizable offence etc.

The Rajesh Sharma judgment had resulted in several directions, and the review of that judgment has resulted in removal/modifications with the result that the direction about Family Welfare Committees has been completely taken out, and some other directions have been modified, and some others are kept as they were.

The core part of this judgment is well-reasoned (keeping aside use of a few absurd sentences in first few pages).  For sake of ease of understanding, the directions of Rajesh Sharma judgment of 2017 in para 19 are given below, followed by comments as to it’s newer status: REMOVED, STILL APPLICABLE, or MODIFIED.

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

consider it fit to give following directions :-

———19(i) has been REMOVED completely———

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.

(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.

(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.


———19(ii) below is MODIFIED as per following para 38 from review judgment———

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

training may be completed within four months
from today;

Para 38 from review judgment:

38.   In the aforesaid analysis, while declaring the directions pertaining
to Family Welfare Committee and its constitution by the District Legal Services  Authority  and  the  power  conferred  on  the  Committee  is
impermissible.  Therefore,  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.

Comments: The only positive point here is about direction to DGP of each state to impart rigorous training with regard to principles behind arrest provisions.  How many such directions result in actual action on the ground is another matter.  People can file RTI on DGP of respective states to get status update on this training.


———19(iii) below is MODIFIED and to be read in conjunction with following para 40 from review judgment———

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;

Para 40 from review judgment:

40.  Direction No. 19(iii) is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh (supra), shall dispose of the same.

Comments: In effect, this point about procedure in case of settlement is exactly what has been the usual procedure till Rajesh Sharma judgment of 2017, and so, in reality, this direction may also be considered to be removed.

———19(iv) , (v), (vi), (vii) are STILL APPLICABLE and to be read in conjunction with following para 35 of review judgment———

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;

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.

Para 35 from review judgment:

35.     Though Rajesh Sharma (supra) takes note of Gian Singh (supra), yet it seems to have it applied in a different manner.  The seminal issue is whether these directions could have been issued by the process of interpretation. This Court, in furtherance of a fundamental right, has issued directions  in  the  absence  of  law  in  certain  cases,  namely, Lakshmi Kant Pandey v. Union of India(14) ,  Vishaka and others v. State of Rajasthan and others(15)  and  Common Cause  (A Registered Society)  v. Union of India and another(16)   and some others. In the obtaining factual matrix, 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. However, the directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be a ground for denial of bail would stand on a different footing. They are protective in nature and do not sound a discordant note with the Code. When an application for bail is entertained, proper conditions have to be imposed but 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. That cannot be considered at that stage. Therefore, we do not find anything erroneous in direction Nos. 19(iv) and (v).  So  far  as  direction  No.  19(vi)  and  19(vii)  are  concerned,  an application has to be filed either under Section 205 CrPC or Section 317 CrPC depending upon the stage at which the exemption is sought.

14 (1984) 2 SCC 244
15 (1997) 6 SCC 241
16 (2018)  5 SCC 1

Following directions from 19(iv), (v), (vi), (vii) from Rajesh Sharma judgment have become final now after this review judgment:

1. When an application for bail is entertained, proper conditions have to be imposed but 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

2. In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;

3. Personal exemption from appearance of all family members (except husband) during IPC 498A trial seems to be upheld even after this review judgment.  Also one must read this judgment on personal exemption for family members residing at a long distance from place of trial.

4. The part about video conferencing is interesting at best since most courts in the country have no such infrastructure as of now.

Below direction in 19(viii) has not been mentioned in the review judgment, presumably because by taking out provision of Family Welfare Committees, this is no longer applicable anyway.

viii)    These directions will not apply to the offences
involving tangible physical injuries or death.


Final Analysis:

The only substantial provisions remaining after this review of Rajesh Sharma judgment is about making recovery of disputed dowry articles not a condition for grant of bail, and personal exemption from appearance of family members.  Other provisions are more of a guideline than a direction, and some of them like video conferencing need lot of infrastructure and training of judicial administration folks to be implemented.

——————————————

Full judgment text below:

——————————————

                                             1

                                                                REPORTABLE

                       IN THE SUPREME COURT OF INDIA

                        CIVIL ORIGINAL JURISDICTION

                     WRIT PETITION (CIVIL) NO. 73 OF 2015

Social Action Forum for Manav Adhikar                                …Petitioner(s)
and another

                                        VERSUS

Union of India
Ministry of Law and Justice and others                               …Respondent(s)

                                           WITH

                       CRIMINAL APPEAL NO. 1265 OF 2017

                  WRIT PETITION (CRIMINAL) NO. 156 of 2017

                                   J U D G M E N T

Dipak Misra, CJI

         Law, especially the criminal law, intends to control, if not altogether

remove, the malady that gets into the spine of the society and gradually

corrodes the marrows of the vertebrae of a large section of the society.  A

situation  arises  and  the  legislature,  expressing  its  concern  and

responsibility, adds a new penal provision with the intention to achieve

                                              2

the requisite result.  When a sensitive legal provision is brought into the

statute book, the victims of the crime feel adequately safe, and if the said

provision pertains to matrimonial sphere, both the parties, namely, wife

and husband or any one from the side of the husband is booked for the

offence and both the sides play the victim card.  The accused persons,

while asserting as victims, exposit grave concern and the situation of

harassment is built with enormous anxiety and accentuated vigour.  It is

propounded in a court of law that the penal provision is abused to an

unimaginable  extent,  for  in  a  cruel,  ruthless  and  totally  revengeful

manner, the young, old and relatives residing at distant places having no

involvement with the incident, if any, are roped in.  Thus, the abuse of the

penal provision has vertically risen.  When the implementation of law is

abused  by  the  law  enforcing  agency,  the  legislature  introduces  a

protective provision as regards arrest.  Needless to say, the courts have

ample power to grant pre-arrest bail or popularly called anticipatory bail

and even to quash the criminal proceeding totally to stabilize the lawful

balance because no court of law remotely conceives of a war between

the two sexes.  The courts remain constantly alive to the situation that

though  no  war  takes  place,  yet  neither  anger  nor  vendetta  of  the

aggrieved section should take an advantage of the legal provision and

harass  the  other  side  with  influence  or  espousing  the  principle  of

sympathy.  The  role  of  the  law  enforcing  agency  or  the  prosecuting

                                              3

agency is sometimes coloured with superlative empathy being totally

oblivious of the sensation to make maladroit efforts to compete with the

game of super sensitivity. Such a situation brings in a social disaster that

has the potentiality to vertically divide the society. The sense of sensitivity

and the study of social phenomenon are required to be understood with

objectivity.    In  such  a  situation,  it  is  obligatory  on  the  part  of  the

legislature  to  bring  in  protective  adjective  law  and  the  duty  of  the

constitutional courts to perceive and scrutinize the protective measure so

that  the  social  menace  is  curbed.    We  are,  in  the  instant  matters,

focussing on Section 498-A of the Indian Penal Code, 1860 (for short,

„the IPC‟).

2.      Section 498-A was brought into the statute book in the year 1983.

The  objects  and  reasons  for  introducing  Section  498-A  IPC  can  be

gathered from the Statement of Objects and Reasons of Criminal Law

(Second Amendment) Act of 1983 and read as under :-

         “The increasing number of Dowry Deaths is a matter of
          serious concern. The extent of evil has been commented
          upon by the Joint Committee of the Houses constituted
          to examine the working of Dowry Prohibition Act, 1961.
          Cases of cruelty by the husband and the relatives of the
          husband which culminate in suicide by, or murder of the
          hapless  woman  concerned,  constitute  only  a  small
          fraction  of  the  cases  involving  such  cruelty.  It  is,
          therefore proposed to amend the Indian Penal Code,
          Code of Criminal Procedure and the Indian Evidence Act
          suitably to deal effectively not only with cases of Dowry
          Death but also cruelty to married woman by their in laws.

                                              4

          2. The following are the changes that are proposed to be
          made:-

         (i) The Indian Penal Code is proposed to be amended to
          make cruelty to a woman by her husband or any relative
          of her husband punishable with an imprisonment for a

         term which may extend to three years and also with fine.
          Willful conduct of such a nature by the husband or any
          other relative of the husband as is likely to drive the
          woman to commit suicide or cause grave physical or
          mental injury to her, and harassment of woman by her
          husband or by any relative of her husband with a view to
          coercing her or any of her relatives to meet any unlawful
          demand for property would be punishable as cruelty, the
          offence  will  cognizable  if  information  relating  to  the
          commission  of  the  offence  is  given  to  the  officer  in
          charge of a Police Station by the victim of the offence or
          a relative of the victim of the offence or, in the absence

         of any such relative, by any public servant authorized in
          this behalf by the State Government. It is also being
          provided  that  no  court  shall  take  cognizance  of  the
          offence except upon a Police Report or complaint made
          by the victim of the offence or by her father, mother,
          brother, sister or by her father’s or mother’s brother or
          sister or with the leave of the court by any other person
          related  to  her  by  blood,  marriage  or  adoption            (vide
          Clauses 2, 5 and 6 of the Bill.)

          (ii) Provision is being made for inquest by Executive
          Magistrates and for postmortem in all cases where a
          woman  has,  within  seven  years  of  her  marriage,
          committed suicide or died in circumstances raising a
          reasonable  suspicion  that  some  other  person  has

         committed  an  offence.  Post-mortem  is  also  being
          provided for in all cases where a married woman has
          died within seven years of her marriage and a relative of
          such woman has made a request in this behalf                    (vide
          Clauses 3 and 4 of the Bill)

          (iii)The Indian evidence Act, 1872 is being amended to
          provide  that  where  a  woman  has  committed  suicide

                                              5

          within a period of seven years from date of her marriage
          and it is shown that her husband or any relative of her
          husband and subjected her to cruelty, the court may
          presume that  such  suicide  had  been  abetted  by  her

         husband or by such relative of her husband (           vide   Clause
          7 of the Bill)

         3. The Bill seeks to achieve the above objectives.”

3.     Regarding the constitutionality of Section 498-A IPC, in Sushil

Kumar Sharma v. Union of India and others(1), it was held by the

Supreme Court:-

        “Provision  of  S.  498A  of  Penal  Code  is  not
         unconstitutional and ultra vires. Mere possibility of abuse
         of  a  provision  of  law  does  not  per  se  invalidate  a
         legislation.  Hence  plea  that  S.  498A  has  no  legal  or
         constitutional foundation is not tenable. The object of the
         provisions is prevention of the dowry menace. But many
         instances have come to light where the complaints are
         not bona fide and have been filed with oblique motive. In
         such cases acquittal of the accused does not in all cases
         wipe out the ignominy suffered during and prior to trial.
         Sometimes adverse media coverage adds to the misery.
         The question, therefore, is what remedial measures can
         be  taken  to  prevent  abuse  of  the  well-intentioned
         provision. Merely because the provision is constitutional
         and intra vires, does not give a licence to unscrupulous
         persons  to  wreck  personal  vendetta  or  unleash

        harassment. It may, therefore, become necessary for the
         legislature to find out ways how the makers of frivolous
         complaints or allegations can be appropriately dealt with.
         Till then the Courts have to take care of the situation
         within the existing frame-work.”

4.     In  B. S.  Joshi and others v. State of Haryana and
another(2) ,

  the Court observed:-

1 (2005) 6 SCC 281 : AIR 2005 SC 3100
2 (2003) 4 SCC 675 : AIR 2003 SC 1386

                                              6

         “There is no doubt that the object of introducing Chapter
         XX-A containing Section 498A in the Indian Penal Code
         was to prevent the torture to a woman by her husband or
         by relatives of her husband. Section 498A was added with
         a view to punishing a husband and his relatives who
         harass or torture the wife to coerce her or her relatives to
         satisfy unlawful demands of dowry. The hyper-technical
         view would be counter productive and would act against
         interests of women and against the object for which this
         provision was added. There is eveiy likelihood that non-
         exercise of inherent power to quash the proceedings to
         meet  the  ends  of  justice  would  prevent  women  from
         settling earlier. That is not the object of Chapter XXA of
         Indian Penal Code.”

5.     In  Brij Lal v. Prem Chand and another(3) , this Court ruled thus:-

         “It would not be out of place for us to refer here to the
         addition  of  Sections  113-A  and  113-B  to  the  Indian
         Evidence Act and Sections 498-A and 304-B to the Indian
         Penal Code by subsequent amendments. Section 113-A
         Evidence Act and 498-A Indian Penal Code have been
         introduced in the respective enactments by the Criminal
         Law (Second amendment) Act, 1983 (Act 46 of 1983) and
         Section  113-B  of  the  Evidence  Act  and  304-B  Indian
         Penal Code have been introduced by Act No. 43 of 1986.
         The degradation of society due to the pernicious system
         of  dowry  and  the  unconscionable  demands  made  by
         greedy and unscrupulous husbands and their parents and
         relatives resulting in an alarming number of suicidal and
         dowry  deaths  by  women  has  shocked  the  Legislative
         conscience to such an extent that the Legislature has
         deemed it necessary to provide additional provisions of
         law, procedural as well as substantive, to combat the evil
         and has consequently introduced Sections 113-A and
         113-B in the Indian Evidence Act and Sections 498-A
         and 304-B in the Indian Penal Code. By reason of Section
         113-A, the Courts can presume that the commission of
         suicide by a woman has been abetted by her husband or
         relation if two factors are present viz. (1) that the woman

3 (1989) 2 SCR 612

                                              7

         had committed suicide within a period of seven years
         from her marriage, and (2) that the husband or relation
         had subjected her to cruelty. We are referring to these
         provisions only to show that the Legislature has realised
         the need to provide for additional provisions in the Indian
         Penal Code and the Indian Evidence Act to check the
         growing menace of dowry deaths…”

6.     Presently, to the factual score. The instant Petitions have been

preferred under Article 32 of the Constitution of India seeking directions

  to  the  respondents  to  create  an  enabling  environment  for  married

  women subjected to cruelty to make informed choices and to create a

  uniform system of monitoring and systematically reviewing incidents of

  violence  against  women  under  Section  498-A  IPC  including  their

prevention, investigation, prosecution and rehabilitation of the victims

  and their children at the Central, State and District levels. That apart,

  prayer has been made to issue a writ of mandamus to the respondents

  for a uniform policy of registration of FIR, arrest and bail in cases of

  Section 498-A IPC in consonance with the law of the land, i.e., to

immediately register FIR on complaint of cruelty and harassment by

  married women as per the IPC.

  7.     It has been averred by the petitioners that hundreds of women are

  being subjected to horrific acts of violence often in the guise of domestic

abuse or to extract more money from the girl’s natal family due to

  absence of any uniform system of monitoring and systematic review of

                                              8

  incidents of violence against married women which has led to dilution of

  the legislative intent behind Section 498-A IPC. And, in the wake of ever

  increasing  crimes  leading  to  unnatural  deaths  of  women  in  marital

  homes, any dilution of Section 498-A IPC is not warranted.

8.     It  has  been  contended  that  Section  498-A  IPC,  since  its

  introduction,  has  increasingly  been  vilified  and  associated  with  the

  perception that it is misused by women who frequently use it as a

  weapon against their in-laws. As per the petitioners, though there is

  general complaint that Section 498-A IPC is subject to gross misuse, yet

there is no concrete data to indicate how frequently the provision has

  been misused. Further, the Court, by whittling down the stringency of

  Section 498-A IPC, is proceeding on an erroneous premise that there is

  misuse of the said provision, whereas in fact misuse by itself cannot be

a ground to repeal a penal provision or take away its teeth.

  9.     It is set forth in the petition that Section 498-A IPC has been

  specifically enacted to protect the vulnerable sections of the society who

  have been victims of cruelty and harassment. The social purpose behind

  Section 498-A IPC is being lost as the rigour of the said provision has

  been diluted and the offence has practically been made bailable by

reason of various qualifications and restrictions prescribed by various

                                              9

  decisions of this Court including Rajesh Sharma and others v. State

  of U.P. and another(4), a recent pronouncement.

  10.  It has also been submitted by the petitioners that the police is

hesitant to arrest the accused on complaint of married women and the

  same inaction is justified by quoting various judgments, despite the fact

  that Section 498-A IPC discloses a non-bailable offence and sufficient

  checks and balances have been provided in the law itself under Section

  41 CrPC. To prevent arbitrary and necessary arrest, the statute very

clearly states that the police shall record reasons for effecting arrest as

  well as for not arresting.

  11.  The  petitioners  have  also  asseverated  that  there  is  lack  of

  monitoring mechanism to track cases registered under Section 498-A

IPC including systematic study of the reason of low convictions and due

  to this absence, penal laws have not been able to secure a safe married

  environment to women. This, as per the petitioners, has also resulted in

  rise in cases under Section 498-A IPC because the deterrent effect of

  the said provision is getting diluted. It is also the case of the petitioners

  that investigation by the police of offence under Section 498-A IPC is

often  unprofessional  and  callous  and  the  investigating  officers

4 AIR 2017 SC 3869 : 2017 (8) SCALE 313

                                             10

  perceptibly  get  influenced  by  both  the  parties  which  results  in

  perpetrators escaping conviction.

  12.  It is further contended that in many cases under Section 498-A,

  IPC the Court has not considered mental cruelty caused to the woman

but has concentrated only on any sign of physical cruelty due to which

  the courts do not look into a case if the evidence does not show that the

  woman was physically harassed. This has led the courts to brand the

  woman on many occasions as hyper-sensitive or of low tolerance level.

  13.  It has been further averred that the alleged abuse of the penal

provision is mostly by well-educated women who know that the offence

  is  both  cognizable  and  non-bailable  and  impromptu  works  on  the

  complaint of the woman by placing the man behind the bars, but this

  cannot  be  a  ground  for  denying  the  poor  and  illiterate  women  the

protection that is offered by Section 498-A IPC against cruelty, rather

  there is a need to create awareness specifically in the rural areas about

  the laws for protection of women and consequent available remedies in

  case of breach.

  14.  It is also set forth in the petition that despite the Dowry Prohibition

  Act, 1961 being passed, the irony still survives perhaps with more

oxygen, for the social evil of dowry is on the increase and is openly

                                             11

  practised with pride. It is put forth that women today are still tortured

  and often the court, despite being the ultimate saviour, does not come

  to  the  rescue  of  these  women  as  a  consequence  of  which  an

  atmosphere of ambivalence prevails  and such societal ambivalence

creates a situation of war between two classes though in actuality the

  offence  is  relatable  to  individuals.  A  sorry  state  of  affairs  is

  pronouncedly asserted.

  15.   On the aforesaid bedrock, a prayer in Writ Petition (Civil) No. 73 of

  2015 has been made to have a uniform policy of registration of FIR,

arrest and bail in cases of Section 498-A IPC.  It is worthy to note here

  that during the pendency of this Writ Petition, the judgment had been

  pronounced in Rajesh Sharma (supra).  The Court in Rajesh Sharma

(supra) issued the following guidelines:-

         “19.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.
                (c) The Committee members will not be called as
                witnesses.

                                             12

                (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.
                (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
                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;

                                             13

                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;

               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.”

16.  In the meanwhile, Writ Petition (Criminal) No. 156 of 2017 had

been  filed.  A  prayer  had  been  made  in  the  said  Writ  Petition  to

implement  the  suggestion  that  out  of  three  members,  at  least  two

members should be appointed in the Family Welfare Committee.  When

this Writ Petition was listed on 13.10.2017, the following order came to

be passed:-

                                             14

        “Mr. Alok Singh, learned counsel for the petitioner though
         has  a  different  set  of  prayers  in  the  writ  petition,  it
         fundamentally requires this Court to implement directions
         rendered in Criminal Appeal No.1265 of 2017 [Rajesh
         Sharma  vs.  State  of  U.P.  and  Another].    Additionally,
         learned counsel would submit that certain lady members,
         certain organizations and welfare committees are to be
         involved.

               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.

               Issue notice to the respondent Nos.1 to 3. No notice
         need  be  issued  to  the  respondent  No.4.  Even  if  the
         petitioner does not take steps, the Registry shall see to it
         that the respondents are served. Ms. Indu Malhotra and
         Mr. V. Shekhar, learned senior counsel are appointed as
         Amicus Curiae to assist the Court in the matter.

               List the matter on 29th November, 2017.”

17.   Mr. V. Shekhar, learned senior counsel, was appointed as Amicus

Curiae to assist the Court in the matter.

18.  It was submitted by the learned Amicus Curiae that the decision in

Rajesh Sharma (supra) requires reconsideration, for the said judgment

confers powers on the Family Welfare Committee to be constituted by

the District Legal Services Authority which is an extra-judicial committee

of para legal volunteers/social workers/retired persons/wives of working

officers/other citizens to look into the criminal complaints under Sections

                                             15

498-A IPC in the first instance and further, there has been a direction

that till such time a report of the committee is received, no arrest should

be made. It is urged that the constitution of FWC to look into the criminal

complaints  under  Section  498-A  IPC  is  contrary  to  the  procedure

prescribed under the Code of Criminal Procedure.

19.  It is further propounded that the directions in certain paragraphs of

the judgment in     Rajesh Sharma (supra) entrusting the power to dispose

of  the  proceedings  under  Section  498-A  IPC  by  the  District  and

Sessions Judge or any other senior judicial officer nominated by him in

the district in cases where there is settlement, are impermissible, for an

offence under Section 498-A is not compoundable and hence, such a

power could not have been conferred on any District and Sessions

Judge or any senior judicial officer nominated by him. Elaborating the

said submission, it is canvassed that the High Court is empowered

under Section 482 CrPC to quash the proceeding if there is a settlement

between the parties. Learned Amicus Curiae further submitted that the

recovery of disputed dowry items may not itself be a ground for denial of

bail which is the discretion of the court to decide the application of grant

of  bail  in  the  facts  and  circumstances  of  the  case  and  thus,  this

tantamounts to a direction which is not warranted in law. Criticism has

                                             16

been advanced with regard to the direction in paragraph 19(v) which

states  that  for  persons  who  are  ordinarily  residing  out  of  India,

impounding of passports or issuance of Red Corner Notice should not

be done in a routine manner. It is urged that if an accused does not join

the investigation relating to matrimonial/family offence, the competent

court can issue appropriate directions to the concerned authorities to

issue Red Corner Notice which will depend on the facts of the case.

20.  Learned Amicus Curiae has further put forth that dispensation of

personal appearance of outstation family members is unwarranted, for in

a criminal proceeding, the competent court which deals with application

of exemption should be allowed to exercise the judicial discretion and

there should not have been a general direction by this Court.    Certain

suggestions have been given by the learned Amicus Curiae which we

shall refer to at the relevant stage.

21.  To appreciate the controversy, it is necessary to understand the

scope of Section 498-A of IPC. It reads thus:-

        “ 498-A. Husband or relative of husband of a woman
         subjecting her to cruelty       .—Whoever, being the husband
         or the relative of the husband of a woman, subjects such
         woman to cruelty shall be punished with imprisonment for
         a term which may extend to three years and shall also be
         liable  to  fine.  Explanation.—For  the  purpose  of  this
         section, “cruelty” means—
         (a) any wilful conduct which is of such a nature as is likely
         to drive the woman to commit suicide or to cause grave

                                             17

         injury or danger to life, limb or health (whether mental or
         physical) of the woman; or
         (b) harassment of the woman where such harassment is
         with a view to coercing her or any person related to her to
         meet any unlawful demand for any property or valuable
         security or is on account of failure by her or any person
         related to her to meet such demand.”

22.  The said offence is a cognizable and non-bailable offence. This

Court in   Arnesh Kumar v. State of Bihar and another(5)  has observed

that the said offence which is a cognizable and non-bailable offence has

lent it a dubious place of pride amongst the provisions that are used as

weapons rather than shield by disgruntled wives. The simplest way to

harass  is  to  get  the  husband  and  his  relatives  arrested  under  this

provision.  The Court has taken note of the statistics  under “Crime in

India 2012 Statistics” published by the National Crime Records Bureau,

Ministry of Home Affairs which shows arrest of 1,97,762 persons all over

India  during  the  year  2012  for  the  offence  under  Section  498-A.

Showing concern, the Court held that arrest brings humiliation, curtails

freedom and casts scars forever and the police had not learnt its lesson

which  is  implicit  and  embodied  in  the  Criminal  Procedure  Code.

Commenting on the police, the Court said:-

        “It has not come out of its colonial image despite six
         decades of Independence, it is largely considered as a
         tool of harassment, oppression and surely not considered
         a friend of public. The need for caution in exercising the

5 (2014) 8 SCC 273

                                             18

         drastic power of arrest has been emphasised time and
         again by the courts but has not yielded desired result.
         Power to arrest greatly contributes to its arrogance so
         also the failure of the Magistracy to check it. Not only this,
         the power of arrest is one of the lucrative sources of
         police  corruption.  The  attitude  to  arrest  first  and  then
         proceed  with the rest  is  despicable.  It  has  become a
         handy tool to the police officers who lack sensitivity or act

        with oblique motive.”

23.  The Court, thereafter, has drawn a distinction between the power

to arrest and justification for the exercise of it and analysed Section 41

CrPC. Section 41 stipulates when police may arrest without warrant.

The said provision reads as follows:-

         “ 41. When police may arrest without warrant.—                   (1) Any
          police officer may without an order from a Magistrate and
          without a warrant, arrest any person—
          (a) who commits, in the presence of a police officer, a
          cognizable offence;

         (b)  against  whom  a  reasonable  complaint  has  been
          made, or credible information has been received, or a
          reasonable suspicion exists that he has committed a
          cognizable offence punishable with imprisonment for a
          term which may be less than seven years or which may
          extend to seven years whether with or without fine, if the
          following conditions are satisfied, namely:–

                (i) the police officer has reason to believe on the
                basis of such complaint, information, or suspicion
                that such person has committed the said offence;

               (ii) the police officer is satisfied that such arrest is
                necessary–

               (a)  to  prevent  such  person  from  committing  any
                further offence; or

               (b) for proper investigation of the offence; or

                                             19

                (c)  to  prevent  such  person  from  causing  the
                evidence of the offence to disappear or tampering
                with such evidence in any manner; or

               (d)  to  prevent  such  person  from  making  any
                inducement,  threat  or  promise  to  any  person
                acquainted  with  the  facts  of  the  case  so  as  to
                dissuade him from disclosing such facts to the Court
                or to the police officer; or

                (e) as unless such person is arrested, his presence
                in the Court whenever required cannot be ensured,

         and the police officer shall record while making such
          arrest, his reasons in writing.

         Provided that a police officer shall, in all cases where the
          arrest of a person is not required under the provisions of
          this sub-section, record the reasons in writing for not
          making the arrest.

          (ba)  against  whom  credible  information  has  been
          received that he has committed a cognizable offence
          punishable  with  imprisonment  for  a  term  which  may
          extend to more than seven years whether with or without
          fine or with death sentence and the police officer has
          reason to believe on the basis of that information that
          such person has committed the said offence.

         (c) who has been proclaimed as an offender either under
          this Code or by order of the State Government; or

         (d) in whose possession anything is found which may
          reasonably be suspected to be stolen property and who
          may reasonably be suspected of having committed an
          offence with reference to such thing; or

         (e) who obstructs a police officer while in the execution
          of his duty, or who has escaped, or attempts to escape,
          from lawful custody; or

          (f) who is reasonable suspected of being a deserter from
          any of the Armed Forces of the Union; or

         (g)  who  has  been  concerned  in,  or  against  whom  a
          reasonable  complaint  has  been  made,  or  credible
          information  has  been  received,  or  a  reasonable

                                             20

          suspicion exists, of his having been concerned in, any
          act  committed  at  any  place  out  of  India  which,  if
          committed in India, would have been punishable as an
          offence, and for which he is, under any law relating to
          extradition, or otherwise, liable to be apprehended or
          detained in custody in India; or

         (h) who, being a released convict, commits a breach of
          any rule made under sub-section (5) of section 356; or

          (i) for whose arrest any requisition, whether written or
          oral,  has  been  received  from  another  police  officer,
          provided that the requisition specifies the person to be
          arrested and the offence or other cause for which the
          arrest is to be made and it appears therefrom that the
          person might lawfully be arrested without a warrant by
          the officer who issued the requisition.

         (2) Subject to the provisions of section 42, no person
          concerned in a non-cognizable offence or against whom
          a complaint has been made or credible information has
          been  received  or  reasonable  suspicion  exists  of  his
          having so concerned, shall be arrested except under a
          warrant or order of a Magistrate.”

24.   Scrutinising the said provision, the Court held as under:-

         “7.1. From a plain reading of the aforesaid provision, it is
         evident that a person accused of an offence punishable with
         imprisonment for a term which may be less than seven years
         or which may extend to seven years with or without fine,
         cannot  be  arrested  by  the  police  officer  only  on  his
         satisfaction  that  such  person  had  committed  the  offence
         punishable as aforesaid. A police officer before arrest, in
         such cases has to be further satisfied that such arrest is
         necessary  to  prevent  such  person  from  committing  any
         further offence; or for proper investigation of the case; or to
         prevent  the  accused  from  causing  the  evidence  of  the
         offence to disappear; or tampering with such evidence in any
         manner;  or  to  prevent  such  person  from  making  any
         inducement, threat or promise to a witness so as to dissuade
         him from disclosing such facts to the court or the police
         officer;  or  unless  such  accused  person  is  arrested,  his

                                             21

         presence in the court whenever required cannot be ensured.
         These are the conclusions, which one may reach based on
         facts.

                x          x         x              x             x

        7.3. In pith and core, the police officer before arrest must put
         a question to himself, why arrest? Is it really required? What
         purpose it will serve? What object it will achieve? It is only
         after these questions are addressed and one or the other
         conditions as enumerated above is satisfied, the power of
         arrest needs to be exercised. In fine, before arrest first the
         police officers should have reason to believe on the basis of
         information and material that the accused has committed the
         offence. Apart from this, the police officer has to be satisfied
         further  that  the  arrest  is  necessary  for  one  or  the  more
         purposes envisaged by sub-clauses (a) to (e) of clause (1) of
         Section 41 CrPC.”

  25.   The learned Judges, thereafter, referred to Section 41-A CrPC

which has been inserted by Section 6 of the Code of Criminal Procedure

(Amendment)  Act,  2008  (5  of  2009).  The  said  provision  is  to  the

following effect:-

        “ 41-A. Notice of appearance before police officer                  .—(1)
         The police officer shall, in all cases where the arrest of a
         person is not required under the provisions of sub-section (1)
         of Section 41, issue a notice directing the person against
         whom a reasonable complaint has been made, or credible
         information has been received, or a reasonable suspicion
         exists that he has committed a cognizable offence, to appear
         before him or at such other place as may be specified in the
         notice.

           (2) Where such a notice is issued to any person, it shall
         be the duty of that person to comply with the terms of the
         notice.
            (3) Where such person complies and continues to comply
         with the notice, he shall not be arrested in respect of the

                                             22

         offence referred to in the notice unless, for reasons to be
         recorded, the police officer is of the opinion that he ought to
         be arrested.
            (4) Where such person, at any time, fails to comply with
         the terms of the notice or is unwilling to identify himself, the
         police officer may, subject to such orders as may have been
         passed by a competent court in this behalf, arrest him for the
         offence mentioned in the notice.”

   Explaining the said provision, it has been ruled:-

        “9. …The aforesaid provision makes it clear that in all cases
         where the arrest of a person is not required under Section
         41(1) CrPC, the police officer is required to issue notice
         directing the accused to appear before him at a specified
         place and time. Law obliges such an accused to appear
         before the police officer and it further mandates that if such
         an accused complies with the terms of notice he shall not be
         arrested, unless for reasons to be recorded, the police officer
         is of the opinion that the arrest is necessary. At this stage
         also, the condition precedent for arrest as envisaged under
         Section 41 CrPC has to be complied and shall be subject to
         the same scrutiny by the Magistrate as aforesaid.”

The Court further went on to say that:-

        “10 We are of the opinion that if the provisions of Section 41
         CrPC  which  authorises  the  police  officer  to  arrest  an
         accused without an order from a Magistrate and without a
         warrant are scrupulously enforced, the wrong committed by
         the  police  officers  intentionally  or  unwittingly  would  be
         reversed and the number of cases which come to the Court
         for grant of anticipatory bail will substantially reduce. We
         would like to emphasise that the practice of mechanically
         reproducing in the case diary all or most of the reasons
         contained  in  Section  41  CrPC  for  effecting  arrest  be
         discouraged and discontinued.”

  The directions issued in the said case are worthy to note:-

        “ 11. Our endeavour in this judgment is to ensure that police
         officers  do  not  arrest  the  accused  unnecessarily  and
         Magistrate  do  not  authorise  detention  casually  and

                                             23

         mechanically. In order to ensure what we have observed
         above, we give the following directions:
         11.1. All the State Governments to instruct its police officers
         not to automatically arrest when a case under Section 498-A
         IPC  is  registered  but  to  satisfy  themselves  about  the
         necessity for arrest under the parameters laid down above
         flowing from Section 41 CrPC;

        11.2.  All  police  officers  be  provided  with  a  check  list
         containing specified sub-clauses under Section 41(1)(b)(ii);
         11.3. The police officer shall forward the check list duly filled
         and furnish the reasons and materials which necessitated
         the arrest, while forwarding/producing the accused before
         the Magistrate for further detention;
         11.4.  The  Magistrate  while  authorising  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 authorise detention;
         11.5. The 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;

        11.6. Notice of appearance in terms of Section 41-A CrPC
         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;
         11.7. Failure 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 the High Court
         having territorial jurisdiction.
         11.8.  Authorising  detention  without  recording  reasons  as
         aforesaid by the Judicial Magistrate concerned shall be liable
         for departmental action by the appropriate High Court.”

26.   The aforesaid decision, as is perceptible, is in accord with the

legislative provision. The directions issued by the Court are in the nature

of statutory reminder of a constitutional court to the authorities for proper

                                             24

implementation and not to behave like emperors considering the notion

that they can do what they please.  In this context, we may refer with

profit to a passage from Joginder Kumar v. State of U.P and others(6) :-

        “20. … No arrest can be made in a routine manner on a
         mere allegation of commission of an offence made against a
         person. It would be prudent for a police officer in the interest
         of  protection  of  the  constitutional  rights  of  a  citizen  and
         perhaps in his own interest that no arrest should 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  so  as  to  the  need  to  effect  arrest.
         Denying a person of his liberty is a serious matter. The
         recommendations of the Police Commission merely reflect
         the constitutional concomitants of the fundamental right to
         personal liberty and freedom. A person is not liable to arrest
         merely on the suspicion of complicity in an offence. There
         must be some reasonable justification in the opinion of the
         officer effecting the arrest that such arrest is necessary and
         justified.  Except  in  heinous  offences,  an  arrest  must  be
         avoided if a police officer issues notice to person to attend
         the  Station  House  and  not  to  leave  the  Station  without
         permission would do.”

27.  Again, the Court in Joginder  Kumar (supra), while voicing its

concern  regarding  complaints  of  human  rights  pre  and  after  arrest,

observed thus:-

           .
         “9 A realistic approach should be made in this direction. The
         law of arrest is one of balancing individual rights, liberties and
         privileges, on the one hand, and individual duties, obligations
         and responsibilities on the other; of weighing and balancing
         the rights, liberties and privileges of the single individual and
         those of individuals collectively; of simply deciding what is
         wanted and where to put the weight and the emphasis; of

6 (1994) 4 SCC 260

                                             25

         deciding which comes first—the criminal or society, the law
         violator or the law abider….”

28.   In   D.K. Basu v. State of W.B.(7), after referring to the authorities in

Joginder  Kumar (supra),   Nilabati  Behera  v.  State  of  Orissa  and

others(8)  and  State of M.P. v. Shyamsunder Trivedi and others(9) , the

Court  laid  down  certain  guidelines  and  we  think  it  appropriate  to

reproduce the same:-

         “(1)  The  police  personnel  carrying  out  the  arrest  and
         handling  the  interrogation  of  the  arrestee  should  bear
         accurate, visible and clear identification and name tags with
         their  designations.  The  particulars  of  all  such  police
         personnel who handle interrogation of the arrestee must be
         recorded in a register.

           (2) That the police officer carrying out the arrest of the
         arrestee shall prepare a memo of arrest at the time of arrest
         and such memo shall be attested by at least one witness,
         who may either be a member of the family of the arrestee or
         a respectable person of the locality from where the arrest is
         made. It shall also be countersigned by the arrestee and
         shall contain the time and date of arrest.

           (3) A person who has been arrested or detained and is
         being held in custody in a police station or interrogation
         centre or other lock-up, shall be entitled to have one friend or
         relative or other person known to him or having interest in
         his welfare being informed, as soon as practicable, that he
         has been arrested and is being detained at the particular
         place, unless the attesting witness of the memo of arrest is
         himself such a friend or a relative of the arrestee.

           (4) The time, place of arrest and venue of custody of an
         arrestee must be notified by the police where the next friend
         or relative of the arrestee lives outside the district or town
         through the Legal Aid Organisation in the District and the

7 (1997) 1 SCC 416
8 (1993) 2 SCC 746
9 (1995) 4 SCC 262

                                             26

         police station of the area concerned telegraphically within a
         period of 8 to 12 hours after the arrest.

           (5) The person arrested must be made aware of this right
         to have someone informed of his arrest or detention as soon
         as he is put under arrest or is detained.

           (6) An entry must be made in the diary at the place of
         detention regarding the arrest of the person which shall also
         disclose the name of the next friend of the person who has
         been informed of the arrest and the names and particulars of
         the police officials in whose custody the arrestee is.
            (7) The arrestee should, where he so requests, be also
         examined at the time of his arrest and major and minor

        injuries, if any, present on his/her body, must be recorded at
         that time. The “Inspection Memo” must be signed both by the
         arrestee and the police officer effecting the arrest and its
         copy provided to the arrestee.
            (8)  The  arrestee  should  be  subjected  to  medical
         examination by a trained doctor every 48 hours during his
         detention in custody by a doctor on the panel of approved
         doctors appointed by Director, Health Services of the State
         or  Union  Territory  concerned.  Director,  Health  Services
         should prepare such a panel for all tehsils and districts as
         well.

           (9) Copies of all the documents including the memo of
         arrest,  referred  to  above,  should  be  sent  to  the  Illaqa
         Magistrate for his record.

           (10) The arrestee may be permitted to meet his lawyer
         during interrogation, though not throughout the interrogation.

           (11)  A  police  control  room  should  be  provided  at  all
         district and State headquarters, where information regarding
         the arrest and the place of custody of the arrestee shall be
         communicated by the officer causing the arrest, within 12
         hours of effecting the arrest and at the police control room it
         should be displayed on a conspicuous notice board.”

29.  In    Lalita Kumari v. Government of Uttar Pradesh and others(10) ,

the Constitution Bench, referring to various provisions of CrPC, adverted

10 (2014) 2 SCC 1

                                             27

to the issue of conducting a preliminary enquiry. Eventually, the Court

opined that the scope of preliminary enquiry is not to verify the veracity

or otherwise of the information received but only to ascertain whether

the  information  reveals  any  cognizable  offence  and,  thereafter,

proceeded to state thus:-

         “ 120.6.  As to  what type  and  in  which cases  preliminary
         inquiry  is  to  be conducted  will  depend  on the  facts and

        circumstances of each case. The category of cases in which
         preliminary inquiry may be made are as under:
            (a) Matrimonial disputes/family disputes
            (b) Commercial offences
            (c) Medical negligence cases
            (d) Corruption cases
            (e)  Cases  where  there  is  abnormal  delay/laches  in
         initiating criminal prosecution, for example, over 3 months‟
         delay in reporting the matter without satisfactorily explaining
         the reasons for delay.
            The aforesaid are only illustrations and not exhaustive of
         all conditions which may warrant preliminary inquiry.”

30.   From the aforesaid, it is quite vivid that the Constitution Bench had

suggested that preliminary enquiry may be held in matrimonial/family

disputes.

31.  In     Rajesh  Sharma (supra),  as  is  noticeable,  the  Court  had

referred to authorities in Arnesh Kumar (supra) and Lalita Kumari

  (supra) and observed that:-

         “16. Function of this Court is not to legislate but only to
         interpret the law. No doubt in doing so laying down of norms

                                             28

         is sometimes unavoidable.(11)  Just and fair procedure being
         part of fundamental right to life,(12)  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 non-compoundable case of private
         nature,  if  continuing  the  proceedings  is  found  to  be
         oppressive.(13)   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  243rd  Report  of  the  Law
         Commission dated 30th August, 2012, 140th 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 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.”

32.  After so stating, the directions have been issued which we have

reproduced in paragraph 15 hereinabove.

33.  On a perusal of the aforesaid paragraphs, we find that the Court

has taken recourse to fair procedure and workability of a provision so

11 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 v. Raghubir Singh (d) by Lrs . : (1989)
2 SCC 754, Para 7;   Dayaram v. Sudhir Batham  : (2012) 1 SCC 333
12 State of Punjab v. Dalbir Singh  : (2012) 3 SCC 346, Paras 46, 52 & 85
13 Gian Singh v. State of Punjab  : (2012) 10 SCC 303, Para 61

                                             29

that there will be no unfairness and unreasonableness in implementation

and  for  the  said  purpose,  it  has  taken  recourse  to  the  path  of

interpretation. 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.  There can be no denial that there has to be

just, fair and reasonable working of a provision. The legislature in its

wisdom has made the offence under Section 498-A IPC cognizable and

non-bailable.  The  fault  lies  with  the  investigating  agency  which

sometimes jumps into action without application of mind. The directions

issued in    Arnesh Kumar (supra) are in consonance with the provisions

contained in Section 41 CrPC and Section 41-A CrPC. Similarly, the

guidelines stated in Joginder Kumar (supra) and D.K. Basu (supra)

are within the framework of the Code and the power of superintendence

of the authorities in the hierarchical system of the investigating agency.

The purpose has been to see that the investigating agency does not

abuse the power and arrest people at its whim and fancy.

                                             30

34.  In Rajesh Sharma (supra), there is introduction of a third agency

which has nothing to do with the Code and that apart, the Committees

have been empowered to suggest a report failing which no arrest can be

made. 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. In

this regard, we may reproduce a passage from a three-Judge Bench in

Gian Singh (supra). In the said case, it has been held that:-

         “61. … Inherent power is of wide plenitude with no statutory
         limitation  but  it  has  to  be  exercised  in  accord  with  the
                                                           i
         guideline engrafted in such power viz.: () to secure the ends
                          ii
         of justice, or ( ) to prevent abuse of the process of any court.
         In what cases power to quash the criminal proceeding or
         complaint or FIR may be exercised where the offender and
         the victim have settled their dispute would depend on the
         facts and circumstances of each case and no category can
         be prescribed. However, before exercise of such power, the
         High Court must have due regard to the nature and gravity of

        the crime. Heinous and serious offences of mental depravity
         or offences like murder, rape, dacoity, etc. cannot be fittingly
         quashed even though the victim or victim‟s family and the
         offender have settled the dispute. Such offences are not
         private  in  nature  and  have  a  serious  impact  on  society.
         Similarly,  any  compromise  between  the  victim  and  the
         offender in relation to the offences under special statutes like
         the Prevention of Corruption Act or the offences committed
         by public servants while working in that capacity, etc.; cannot
         provide  for  any  basis  for  quashing  criminal  proceedings
         involving  such  offences.  But  the  criminal  cases  having

                                             31

         overwhelmingly and predominatingly civil flavour stand on a
         different footing for the purposes of quashing, particularly the
         offences arising from commercial, financial, mercantile, civil,
         partnership or such like transactions or the offences arising
         out of matrimony relating to dowry, etc. or the family disputes
         where the wrong is basically private or personal in nature
         and the parties have resolved their entire dispute. In this
         category of cases, the High Court may quash the criminal
         proceedings  if  in  its  view,  because  of  the  compromise
         between  the  offender  and  the  victim,  the  possibility  of
         conviction  is  remote  and  bleak  and  continuation  of  the
         criminal case would put the accused to great oppression and
         prejudice and extreme injustice would be caused to him by
         not quashing the criminal case despite full and complete
         settlement and compromise with the victim.”

35.     Though Rajesh Sharma (supra) takes note of Gian Singh (supra),

yet it seems to have it applied in a different manner.  The seminal issue

is whether these directions could have been issued by the process of

interpretation. This Court, in furtherance of a fundamental right, has

issued  directions  in  the  absence  of  law  in  certain  cases,  namely,

Lakshmi Kant Pandey v. Union of India(14) ,  Vishaka and others v.

State of Rajasthan and others(15)  and  Common Cause  (A Registered

Society)  v. Union of India and another(16)   and some others. In the

obtaining factual matrix, 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

14 (1984) 2 SCC 244
15 (1997) 6 SCC 241
16 (2018)  5 SCC 1

                                             32

erroneous. However, the directions pertaining to Red Corner Notice,

clubbing of cases and postulating that recovery of disputed dowry items

may not by itself be a ground for denial of bail would stand on a different

footing. They are protective in nature and do not sound a discordant

note with the Code. When an application for bail is entertained, proper

conditions have to be imposed but 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. That cannot be considered at that stage.

Therefore, we do not find anything erroneous in direction Nos. 19(iv) and

(v).  So  far  as  direction  No.  19(vi)  and  19(vii)  are  concerned,  an

application has to be filed either under Section 205 CrPC or Section 317

CrPC depending upon the stage at which the exemption is sought.

36.  We  have  earlier  stated  that  some  of  the  directions  issued  in

Rajesh Sharma (supra) have the potential to enter into the legislative

field. A three-Judge Bench in          Suresh Seth v. Commissioner, Indore

Municipal Corporation and others(17)  ruled thus:-

          “5. … In our opinion, this is a matter of policy for the elected
         representatives of people to decide and no direction in this
         regard can be issued by the Court. That apart this Court
         cannot issue any direction to the legislature to make any
         particular  kind  of  enactment.  Under  our  constitutional
         scheme  Parliament  and  Legislative  Assemblies  exercise
         sovereign power to enact laws and no outside power or
         authority can issue a direction to enact a particular piece of
         legislation. In   Supreme Court Employees’ Welfare Assn.                 v.

17 (2005) 13 SCC 287

                                             33

         Union of India(18)  (SCC para 51) it has been held that no court
         can direct a legislature to enact a particular law. Similarly,
         when an executive authority exercises a legislative power by
         way of a subordinate legislation pursuant to the delegated
         authority of a legislature, such executive authority cannot be
         asked to enact a law which it has been empowered to do
         under the delegated legislative authority. …”

37.   Another  three-Judge  Bench  in              Census  Commissioner  and

others  v.  R.  Krishnamurthy(19) ,  after  referring  to   N.D.  Jayal  and

another v. Union of India and others(20) ,  Rustom Cavasjee Cooper v.

Union of India(21) ,  Premium Granites  and another v. State of T.N. and

others(22) ,   M.P.  Oil  Extraction  and  another  v.  State  of  M.P.  and

others(23) ,  State of Madhya Pradesh v. Narmada Bachao Andolan and

another(24)  and  State of Punjab and others v. Ram Lubhaya Bagga

and others(25) , opined:-

        “ 33. From the aforesaid pronouncement of law, it is clear as
         noon day that it is not within the domain of the courts to
         embark upon an enquiry as to whether a particular public
         policy is wise and acceptable or whether a better policy
         could be evolved. The court can only interfere if the policy
         framed is absolutely capricious or not informed by reasons
         or totally arbitrary and founded ipse dixit offending the basic
         requirement  of  Article  14  of  the  Constitution.  In  certain
         matters, as often said, there can be opinions and opinions
         but the court is not expected to sit as an appellate authority
         on an opinion.”

18  (1989) 4 SCC 187
19  (2015) 2 SCC 796
20  (2004) 9 SCC 362
21  (1970) 1 SCC 248
22  (1994) 2 SCC 691
23  (1997) 7 SCC 592
24  (2011) 7 SCC 639
25  (1998) 4 SCC 117

                                             34

38.     In the aforesaid analysis, while declaring the directions pertaining

to Family Welfare Committee and its constitution by the District Legal

Services  Authority  and  the  power  conferred  on  the  Committee  is

impermissible.  Therefore,  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.

39.  In  view  of  the  aforesaid  premises,  the  direction  contained  in

paragraph 19(i) as a whole is not in accord with the statutory framework

and the direction issued in paragraph 19(ii) shall be read in conjunction

with the direction given hereinabove.

40.  Direction No. 19(iii) is modified to the extent that if a settlement is

arrived at, the parties can approach the High Court under Section 482 of

the Code of Criminal Procedure and the High Court, keeping in view the

law laid down in Gian Singh (supra), shall dispose of the same.

41.  As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are

concerned, they shall be governed by what we have stated in paragraph

35.

                                             35

42.  With the aforesaid modifications in the directions issued in Rajesh

Sharma (supra), the writ petitions and criminal appeal stand disposed

of.  There shall be no order as to costs.

                                                                      …..………………………..,CJI
                                                       (Dipak Misra)

                                                                    …..…………………………..,J
                                                       (A.M. Khanwilkar)

                                                                   ..………………………….….,J
                                                       (Dr. D.Y. Chandrachud)
New Delhi;
September  14 , 2018.

The post Modified directions in IPC 498A cases upon review of Rajesh Sharma judgment by Supreme Court appeared first on Men Rights India.


Feedback on Draft National Child Protection Policy

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Following notification has been posted on Ministry of Women and Child Development for comments from public on Draft National Child Protection Policy.

Draft National Child Protection Policy Circular 14 Dec 2018

Draft of the National Child Protection Policy can be downloaded from below:

Draft National Child Protection Policy Dec 2018

Following are some examples of feedback and comments which can be given on the same and sent to mksingh.ofb@nic.in (latest by 4th Jan 2019).  One should give one’s full name, address, mobile number, and email along with the comments sent by email.

Feedback/Comments on Draft National Child Protection Policy

Due to rising separation and divorces in India, many children – whose parents are living separately or divorced already – are being made to suffer due to restrictions being placed on children’s access to or being entirely cut-off from the non-custodial parent.  Many a time institutions like school where a child goes to are made to act against child’s best interests on request of a custodial parent.  To avoid any schools and other child institutions aiding or abetting in cutting-off a child’s access and interaction with non-custodial parent, whether inadvertently or deliberately, appropriate guidelines need to be formulated regarding the same.  Since the draft of National Child Protection Policy (POLICY) mentions about India being signatory to the United Nations Convention on the Rights of the Child (UNCRC), it would be pertinent to give excerpts of some of articles from UNCRC below, followed by suggested additions to the draft of the POLICY:

United Nations Convention on the Rights of Child (UN CRC) has been referred from web page below: https://www.ohchr.org/en/professionalinterest/pages/crc.aspx

Article 8 of UN Convention on the Rights of Child (UN CRC):

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity

Problem:

It has been seen that in cases of marital disputes where the parents of children are living separately or divorced already, the children are cut off from the Non-Custodial Parent (NCP).  Often times, it has been seen, that the Custodial Parent (CP) makes efforts to change the name (first name or surname) of the child in child’s school records, without any such court order or without any intimation to the NCP.  Such a change of identify of child is against Article 8 of UNCRC as mentioned above which mandates on signatory states to preserve child’s identity including name and family relations.

Suggested addition to POLICY:

1. A school or institution shall not change name of child in school records merely upon application from a Custodial Parent, unless the said custodial parent has full guardianship of child as per a court order.

2. A school or institution should notify both parents as per school records, in case of any application or attempt is made to change a child’s name or identity in school records by child’s parent.

Article 3 of UN Convention on the Rights of Child (UN CRC):

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 5 of UN Convention on the Rights of Child (UN CRC):

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Article 9 of UN Convention on the Rights of Child (UN CRC):

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

Problem:

It has been seen that in cases of marital disputes where the parents of children are living separately or divorced already, the children are cut off from the Non-Custodial Parent (NCP).  Often times, it has been seen that the Custodial Parent (CP) writes letter or verbally represents to child’s school so as not to allow NCP to be able to contact or talk to child inside school premises or even outside school premises.  Also requests are made by custodial parent to not provide any information to NCP about child’s educational performance, extra-curricular activities, and progress at school, and the such requests are routinely allowed by the school or institution.  Any such actions done by school are against articles 3, 5, and 9 of the UN CRC.

Suggested addition to POLICY:

1. A school or institution shall not act on behest of a Custodial Parent thereby denying or restricting a child’s right to be in communication with and have access to custodial parent.

2. A school or institution shall not restrict normal interaction of a child with non-custodial parent at school unless a suitable court order exists restricting or denying the same to the non-custodial parent.

3. A school or institution shall not deny to a non-custodial parent information about child’s educational performance, extra-curricular activities, and progress at school, unless a suitable court order exists restricting or denying the same to the non-custodial parent.

The post Feedback on Draft National Child Protection Policy appeared first on Men Rights India.

It’s Holi time – get ready for annual ritual of Holi Derangement Syndrome (HDS) and hysteria by English main stream media

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This post was meant to be written last year – but better late than never – and it is now just in time before the next Holi, also to prepare the readers for what the deranged English ‘liberal’ media might come up with this time before Holi festival.

Around this time last year, the English main stream media – the fountain of progressive liberal derangement™ – came out with reporting that semen filled balloons were thrown on some girls in Delhi.  It was reported to be one incident, but as is expected from the ‘civilizing’ role of English media on us brutes, they lost no time in chest-beating, and lamenting the moral slide among Hindus (it HAS TO BE Hindus, our journalists just know these things even before knowing them!).  A sample below:

sagarika-ghose-hindu-pride-holi-semen-filled-baloon

Questions:

  1. How does this “illustrious” journo already know that the balloons have been thrown by some Hindus?
  2. Did she apply some common sense or logic to first ascertain as to how feasible it is to fill up balloons with human semen?  It doesn’t exactly flow out by turning a tap!
  3. Even if it is true, how can she be certain that those indulging in this are expressing some kind of “Hindu Pride”?

In other words, you can be sure that the journo got her annual affliction of Holi Derangement Syndrome™ (HDS) – that time of the year when spring is in the air, air is becoming warmer – but so is the seasonal derangement of the journos which starts a few weeks before Holi, peaks just about a couple of days before Holi, but miraculously the symptoms are cured when the festival is over.  Then the journo sets her sights on the next Hindu festival (male/patriarchal according to them) to target.

The timeline of this onset of hysteria, Peak Holi Derangement™, followed by exhaustion and recovery phases are shown in the graph below.

holi-derangement-syndrome-graph

As regards the truth behind the story about semen-filled balloons, since journalists are probably the last people to be depended upon for telling it – below is the RTI filed to NCW and reply to it on the semen-filled balloons fiasco.  The RTI was filed on NCW since they were one of the government agencies which had sent a team to investigate about the alleged incident.

 

RTI reply NCW semen filled balloons Mar 2018

 

Reply to above RTI is given below:

RTI to NCW semen filled balloon incident

The above reply to RTI says clearly that the alleged victims of the semen-filled balloons “have not received any complaint but they were aware of the matter from the media”!  So you can now rest assured that this was likely a purely invented ‘event’ by the main stream media during their annual Holi Derangement Syndrome™.

But truth be damned.  When it’s Holi time, the journos are just getting ready before they go all guns blazing!

Holi-Kab-Hai-Gabbar-Peak-Holi-Derangement

Note: the ™after progressive derangement syndrome, Holi Derangement Syndrome, and Peak Holi Derangement are just in jest – these are not trademarked and cannot be so, let these be shared as much as possible.

The post It’s Holi time – get ready for annual ritual of Holi Derangement Syndrome (HDS) and hysteria by English main stream media appeared first on Men Rights India.

How to search, find, and download electronic copy of FIR uploaded by Police?

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This post will give links to various websites of State police departments in India, where one can find FIR and download a copy.  Note: these are NOT about filing an FIR (First Information Report), but only to find and download electronic copy of an already existing FIR which has been uploaded by respective state’s police.

The direction to upload copy of FIRs came about due to this judgment by Supreme Court in 2016, the main intention being to protect rights of the accused who by law (CrPC) could not get copy of FIR until filing of charge-sheet by police in court.  Now, by having access to online FIR, the accused can easily get the FIR copy (without paying bribes etc), and start preparing for investigation, or defence before impending trial.

 

image-detective-search-lens

 

How to use the various police websites for FIR view/download below?

  1. Names of states below are given in alphabetical order.
  2. For most of the state police websites, the exact FIR registration number is needed.  Some of the states allow search of FIR also based on name of accused, complainant, or victim.  Those sites makes it very useful for someone who fears an FIR will be filed against him to search for his/her name once in a while to become prepared as soon as it is filed.  All that is required is that he/she searches for it regularly (say once a week) on the state police website.  Note: Wherever search for FIR is possible on these other parameters, it is mentioned too in the Notes: sub-section.
  3. Some sites are in English, some in Hindi, and many will have option to use state language if not Hindi.  The link to choose language can usually be found on menu bar on top of the webpage.

Assam FIR view/download

https://assampolice.assam.gov.in/citizen/FIRDownload.aspx

Notes:

1. Search for accused/complainant name also possible

Delhi FIR view/download

http://59.180.234.21:8080/citizen/firSearch.htm

Notes:

1. Search for accused/complainant name also possible

Goa FIR view/download

https://www.goapolice.gov.in/web/guest/firdocsearch

Notes:

1. Search for accused/complainant name also possible

Haryana FIR view/download

http://haryanapoliceonline.gov.in/ViewFIR/FIRStatusSearch.aspx?From=LFhlihlx/W49VSlBvdGc4w==

Madhya Pradesh FIR view/download

https://citizen.mppolice.gov.in/FirView.aspx

Notes:

  1. Above webpage is in Hindi
  2. Needs user registration before FIR search can be done

Karnataka FIR view/download

https://www.ksp.gov.in/fir.aspx

Punjab FIR view/download

http://115.112.58.49/ppsaanjh/fir.php

Note that there are other links too for individual districts which probably might be reached too from above main link eventually:

http://115.112.58.53:1111/FIR/firfilestatus.jsf?name=FARIDKOT

Rajasthan FIR view/download

http://police.rajasthan.gov.in/citizen/login.htm?lang=hi_IN&stov=EXBL-ZQ4W-501F-J5C6-D91Z-HBHD-YMG7-3LGL

Notes:

1. Above site in Hindi, not sure if other languages supported (changing lang parameter to en_XX etc still shows same page).

2. User needs to register and see if it works, or contact on the email/phone numbers given on page.

Uttar Pradesh(UP) FIR view/download

https://cctnsup.gov.in/citizen/login.aspx

Notes:

1. Above site in Hindi, not sure if other languages supported.

2. User needs to register and see if it works, or contact on the email/phone numbers given on page.

West Bengal FIR view/download

https://cidwestbengal.gov.in/cid_records/firupload

 

 

Other states: to be added …

If any website link above is found to be incorrect, you can mention in the comments to this article

The post How to search, find, and download electronic copy of FIR uploaded by Police? appeared first on Men Rights India.

Mandatory uploading of FIRs to state police websites – SC judgment to protect rights of accused

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There were several High Court judgments where to protect the fundamental rights of the accused, directions were given to respective state police to upload the FIR to state police website within 24 hours or so of lodging of FIR.

Finally in 2016, in a PIL filed by Youth Bar Association of India, Supreme Court made it mandatory for all States’ police nationwide to upload copy of FIRs within 24-72 hours of lodging of FIR.  There are other directions too regarding how an accused can get certified copies of FIR.  The full judgment text is given below, with the paras containing directions regarding upload of FIRs (paras 12 and 13) made in bold:

WP(Crl.) 68/2016

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL ORIGINAL JURISDICTION

                    WRIT PETITION (CRL.) NO.68 OF 2016

Youth Bar Association of India                       Petitioner(s)

                    Versus

Union of India and Others                            Respondent(s)

                           O R D E R
                  

             Issue Rule.

2.           In this writ petition, preferred under Article 32 of

the   Constitution   of   India,   the   petitioner,   Youth   Bar

Association of India, has prayed for issue of a writ in the

nature of mandamus, directing the Union of India and the

States to upload each and every First Information Report

registered in all the police stations within the territory of

India in the official website of the police of all States, as

early as possible, preferably within 24 hours from the time

of registration.

3.           After the writ petition was entertained by this

Court, notices were issued to the Union of India and the

States.

4.           It   is   submitted   by   Mr.   Sanpreet   Singh   Ajmani,

learned counsel appearing for the petitioner that after

                            2

registration   of   the   First   Information   Report   if   it   is

uploaded in the official website of police, that will solve

many unnecessary problems faced by the accused persons and

their family members.   Learned counsel would contend that

when the criminal law is set in motion and liberty of an

individual is at stake, he should have the information so

that he can take necessary steps to protect his liberty.  In

this context, he has drawn our attention to a passage from

the judgment rendered in             State of West Bengal and others vs.
                  
Committee for Protection of Democratic Rights, West Bengal

and others      (2010) 3 SCC 571, wherein it has been observed:-

             “Article 21 of the Constitution in its broad
             perspective seeks to protect the persons of
             their   lives   and   personal   liberties   except
             according to the procedure established by law.
             The said Article in its broad application not
             only takes within its fold enforcement of the
             rights of an accused but also the rights of the
             victim. The State has a duty to enforce the
             human rights of a citizen providing for fair
             and impartial investigation against any person
             accused of commission of a cognizable offence,
             which may include its own officers. In certain
             situations even a witness to the crime may seek
             for and shall be granted protection by the
             State.”

5.           In   Som Mittal vs. Government of Karnataka (2008) 3

SCC 753  the Court has ruled thus:               –
           ,
             “The right to liberty under Article 21 of the
             Constitution is a valuable right, and hence
             should not be lightly interfered with. It was
             won by the people of Europe and America after
             tremendous historical struggles and sacrifices.
             One is reminded of Charles Dickens novel `A
             Tale of Two Cities in which Dr. Manette was
             incarcerated in the Bastille for 18 years on a

                           3

            mere lettre de cachet of a French aristocrat,
             although he was innocent.”

6.           In   D.K. Basu vs. State of West Bengal AIR 1997 SC

610 it has been opined that:-

            “The rights inherent in Articles 21 and 22(1)
             of the Constitution required to be jealously
             and scrupulously protected. We cannot wish away
             the problem. Any form of torture of cruel,
             inhuman   or   degrading   treatment   would   fall
             within the inhibition of Article 21 of the
             Constitution,   whether   it   occurs   during
             investigation, interrogation or otherwise. If
             the functionaries of the Government become law
                  
             breakers, it is bound to breed contempt for law
             and would encourage lawlessness and every man
             would have the tendency to become law unto
             himself   thereby   leading   to   anarchanism.   No
             civilised nation can permit that tp happen.
             Does a citizen shed off his fundamental right
             to life, the moment a policeman arrests him?
             Can the right to life of a citizen be put in
             abeyance on his arrest? These questions touch
             the spinal court of human rights jurisprudence.
             The answer, indeed, has to be an emphatic ‘No’.
             The precious right guaranteed by Article 21 of
             the Constitution of India cannot be denied to
             convicted   undertrials,   detenues   and   other
             prisoners in custody, except according to the
             procedure established by law by placing such
             reasonable restrictions as are permitted by
             law.”

7.           Learned counsel for the petitioner has also drawn

our attention to a Division Bench decision of Delhi High

Court rendered in           Court on its Own Motion through Mr. Ajay

Chaudhary vs. State (2010) 175 DLT 110 (DB)          .

8.           On being asked, Mr. Tushar Mehta, learned Additional

Solicitor General appearing for the Union of India, has

submitted that the directions issued by the High Court of

Delhi can be applied with certain modifications.   Learned

                           4

Additional Solicitor General has also drawn our attention to

paragraph 4 of the affidavit filed in an interlocutory

application in the present writ petition.  The said paragraph

reads as under:-

            “4.     That is it respectfully submitted that
             Central Government is supporting all the states
             to set up a mechanism for online filing of
             complaints under the protect ‘Crime & Criminal
             Tracking Network & Systems (CCTNS)’.”

9.           Mr. Saurabh Trivedi, learned counsel appearing for
                  
the   State   of   Uttarakhand   has   submitted   that   the   First

Information Report in respect of certain offences which are

registered, like sexual offences and the offences registered

under the Protection of Children from Sexual Offences Act,

2012 (POCSO Act), may be difficult to be put on the website.

10.          Mr.   Ranjan   Mukherjee,   Mr.   Shikhar   Garg,   and

Mr. Yusuf Khan, learned counsel appearing for the States of

Meghalaya, Mizoram and Sikkim respectively, have submitted

that insurgency would be a sensitive matter and, that apart,

it may not be possible on the part of the said States to

upload the First Information Reports within 24 hours.

11.          Mr. Uddyam Mukherji, learned counsel appearing for

the State of Odisha has submitted that whether a matter is

sensitive or not, the Court may say no reasons should be

given because the allegation in the F.I.R. shall speak for

itself.

                           5


12.          Having heard learned counsel for the parties, we



think it appropriate to record the requisite conclusions and,


thereafter, proceed to issue the directions:-


      (a)    An accused is entitled to get a copy of the First


       Information Report at an earlier stage than as prescribed


      under Section 207 of the Cr.P.C.


      (b)    An accused who has reasons to suspect that he has


       been roped in a criminal case and his name may be finding


                 
       place   in   a   First   Information   Report   can   submit   an


      application through his representative/agent/parokar for


      grant of a certified copy before the concerned police


       officer or to the Superintendent of Police on payment of

      such fee which is payable for obtaining such a copy from


      the Court.   On such application being made, the copy


       shall be supplied within twenty-four hours.


      (c)    Once the First Information Report is forwarded by


      the police station to the concerned Magistrate or any


       Special   Judge,   on   an   application   being   filed   for


      certified copy on behalf of the accused, the same shall


       be given by the Court concerned within two working days.


      The aforesaid direction has nothing to do with the


       statutory   mandate   inhered   under   Section   207   of   the


      Cr.P.C.


      (d)    The copies of the FIRs, unless the offence is


       sensitive   in   nature,   like   sexual   offences,   offences


      pertaining to insurgency, terrorism and of that category,



                           6



      offences under POCSO Act and such other offences, should


       be uploaded on the police website, and if there is no


      such website, on the official website of the State


       Government, within twenty-four hours of the registration


      of the First Information Report so that the accused or


      any person connected with the same can download the FIR


       and file appropriate application before the Court as per


      law for redressal of his grievances.  It may be clarified


       here that in case there is connectivity problems due to
                  
       geographical location or there is some other unavoidable


      difficulty, the time can be extended up to forty-eight


       hours.  The said 48 hours can be extended maximum up to


      72   hours   and   it   is   only   relatable   to   connectivity


       problems due to geographical location.



      (e)    The decision not to upload the copy of the FIR on


      the website shall not be taken by an officer below the


      rank of Deputy Superintendent of Police or any person


       holding   equivalent   post.   In   case,   the   States   where


      District Magistrate has a role, he may also assume the


       said authority.  A decision taken by the concerned police


      officer   or   the   District   Magistrate   shall   be   duly


       communicated to the concerned jurisdictional Magistrate.



      (f)    The word ‘sensitive’ apart from the other aspects


      which may be thought of being sensitive by the competent


      authority   as   stated   hereinbefore   would   also   include


       concept of privacy regard being had to the nature of the



                           7



      FIR.   The examples given with regard to the sensitive


       cases are absolutely illustrative and are not exhaustive.



      (g)    If an FIR is not uploaded, needless to say, it shall


      not enure       per se    a ground to obtain the benefit under


       Section 438 of the Cr.P.C.



      (h)    In case a copy of the FIR is not provided on the


      ground of sensitive nature of the case, a person grieved


       by the said action, after disclosing his identity, can
                  
       submit a representation to the Superintendent of Police


      or any person holding the equivalent post in the State.


       The Superintendent of Police shall constitute a committee


      of   three   officers   which   shall   deal   with   the   said


       grievance.     As   far   as   the   Metropolitan   cities   are


      concerned,   where   Commissioner   is   there,   if   a


      representation is submitted to the Commissioner of Police


       who shall constitute a committee of three officers.  The


      committee so constituted shall deal with the grievance


       within three days from the date of receipt of the


      representation and communicate it to the grieved person.



      (i)    The   competent   authority   referred   to   hereinabove


       shall constitute the committee, as directed herein-above,


      within eight weeks from today.



      (j)    In cases wherein decisions have been taken not to


      give copies of the FIR regard being had to the sensitive


       nature of the case, it will be open to the accused/his



                           8



       authorized representative/parokar to file an application


       for grant of certified copy before the Court to which the


      FIR has been sent and the same shall be provided in quite


       promptitude by the concerned Court not beyond three days


      of the submission of the application.



      (k)    The directions for uploading of FIR in the website


      of   all   the   States   shall   be   given   effect   from   15th


       November, 2016.


                 
13.          Let a copy of this order be sent to all the Home


Secretaries and the Director Generals of Police of the States



concerned.

14.          The writ petition is, accordingly, disposed of.

                                              …………………J.
                                               [Dipak Misra]

                                              …………………J.
                                               [C. Nagappan]

New Delhi
September 07, 2016.

                           9

ITEM NO.3               COURT NO.4               SECTION PIL(W)

        S U P R E M E  C O U R T  O F  I N D I A
                RECORD OF PROCEEDINGS

Writ Petition(s)(Criminal)  No(s).  68/2016

YOUTH BAR ASSOCIATION OF INDIA                     Petitioner(s)

                         VERSUS

UNION OF INDIA AND ORS.                            Respondent(s)

(with appln. (s) for deletion of the name of respondent and
exemption from filing O.T. and office report)

Date : 07/09/2016 This petition was called on for hearing today.

CORAM :
  HON’BLE MR. JUSTICE DIPAK MISRA
  HON’BLE MR. JUSTICE C. NAGAPPAN

For Petitioner(s)        
              Ms. Manju Jetley,Adv.

For Respondent(s)
              Krishnayan Sen,Adv.
              Mr. Dharmendra Kumar Sinha,Adv.
              Mr. G. Prakash,Adv.
              Mr. Parijat Sinha,Adv.
              Mr. Ranjan Mukherjee,Adv.
              Mr. Rohit K. Singh,Adv.
              Mrs. Anil Katiyar,Adv.
              Mr. Saurabh Trivedi,Adv.
              Mr. V. N. Raghupathy,Adv.
              Ms. Hemantika Wahi,Adv.

  UPON hearing the counsel the Court made the following
                      O R D E R

              The writ petition is disposed of in terms of the
signed reportable judgment.

             All the interlocutory applications stand disposed
of.

                          10

         (Chetan Kumar)                         (H.S. Parasher)
          Court Master                             Court Master

The post Mandatory uploading of FIRs to state police websites – SC judgment to protect rights of accused appeared first on Men Rights India.

RTI to bring accountability of Police Investigation Officers (IO) and State Public Prosecutors based on Supreme Court judgment in State Of Gujarat vs Kishanbhai, 2014

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An important judgment by Supreme Court came in 2014 wherein directions were issued to Home Department of all the States (which have both Police and State Prosecutors under them) to ensure that only people against whom there is sufficient evidence of having committed a crime are prosecuted.  It was also directed that if an accused is acquitted after a trial, an accountability is taken as to why the Police or Prosecution failed to convict that accused person, and erring Police Investigation Officers (IO) and Prosecutors should suffer departmental action.

The judgment can be referred to at:

State Of Gujarat vs Kishanbhai on 7 January, 2014

Para 20 of above SC judgment is given below:

20. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore, essential that every State should put in place a procedural mechanism, which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home Department of every State, to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A standing committee of senior officers of the police and prosecution departments, should be vested with aforesaid responsibility. The consideration at the hands of the above committee, should be utilized for crystalizing mistakes committed during investigation, and/or prosecution, or both. The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials course- content drawn from the above consideration. The same should also constitute course-content of refresher training programmes, for senior investigating/prosecuting officials. The above responsibility for preparing training programmes for officials, should be vested in the same committee of senior officers referred to above. Judgments like the one in hand (depicting more than 10 glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes. The course content will be reviewed by the above committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of Courts, and on the basis of experiences gained by the standing committee while examining failures, in unsuccessful prosecution of cases. We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence, when they are made liable to suffer departmental action, for their lapses.

Above para has given directions to Home Department of every State to examine all orders of acquittal and record reasons for the failure of each prosecution case, and further suggestions for inclusion learnings into training programmes.

Para 21 of the judgment is given below:

21. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly we direct, the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.

Above para gives directions to Home Department of every State to implement tracking mechanisms and implement procedures to take action against all erring investigating/prosecuting officials/officers due to whose actions a person has to face criminal trial but ultimately gets acquitted.  If these procedures were enforced and departmental actions were taken, it will create a huge disincentives to shoddy and incompetent police investigation leading to charge-sheeting in IPC 498A and other matrimonial related cases, and in general for all criminal cases.  This can bring down the charge-sheeting of false criminal cases drastically, and as per CrPC these false cases will result in a so called B-report wherein it will be said that no evidence of alleged crimes was found after investigation.  Further, it will put some onus on state prosecutors so that prosecution cannot do their job mechanically by taking to trial every charge-sheet by police and act as a punishing arm of the state towards the accused most of whom are getting acquitted at the end of the trial.

To bring this accountability, data needs to be collected in each State of India as to current implementation and status of the above guidelines.  Following states are currently being covered and the list will be updated as and when people reply via comment on this article, or via Contact form that they have submitted this RTI in their State.  In any case, it would be good that multiple file RTIs even if a State is already covered in the list below, because the logic that seems to work in India is that if only one person in a few Crores in a state is bothered about something, why should it be taken seriously?  Also, if a State wants to avoid multiple people filing RTIs on the same information, they can very well publish that information on their official website as part of disclosures under RTI Act.

List of States where data collection is in progress

1. Karnataka (1 RTI sent, under process)

2. Tamil Nadu (1 RTI sent)

3. Gujarat (1 RTI sent)

Format of RTI

Following RTI has actually been used and same can be used to send to your respective state.  This is based on format of RTI prescribed in State of Karnataka (but it is not binding), so you can change it to whatever RTI format you have used earlier, or if any format is prescribed in your state (if you want to show your knowledge of RTI to the PIO, not that it would matter much!).  In short – don’t get hung up on the format, that is the least important thing.  Just make sure that all the points in Para 1 to 5 (and information about Indian Postal Order (IPO) for paying Rs 10 fees is mentioned.

Note: No need to provide mobile number in RTI application.  In RTI applications, some people provide their mobile number but I tend to avoid giving mobile number since many govt departments have expertise in how to avoid replying to RTI by calling the applicant and giving various excuses and dissuading him/her from expecting a reply to the information asked for!   Rarely have I found any positive outcome from giving a mobile number.  In any case, no RTI reply can be sent over phone, SMS, or WhatsApp so giving mobile number is not really necessary at all.  Let them send by post or to email address mentioned in RTI template below.

APPLICATION UNDER THE RIGHT TO INFORMATION ACT 2005

FORM-A (section 6(1) and 7(1) of the RTI Act, 2005)

1. Full Name of the Applicant: <Give your full name here>

2. Address: <Give your address here>

Email: <Give your email here> (In lieu of postal reply to RTI, the information asked below may be sent to my email address to reduce paper usage)

3. Details of the document/ Inspection/ Samples required:

Referred document at: https://indiankanoon.org/doc/24057125/

With reference to above judgment by Supreme Court of India in State Of Gujarat vs Kishanbhai on 7 January, 2014.  With reference to paras in this judgment, kindly supply information/documents/records/statistics etc as mentioned below:

  1. The date when copy of above-mentioned judgment has been received by Home Secretary of State of Karnataka.
  2. Information/documents/records/statistics related to formulated procedure for taking action against all erring investigating/prosecuting officials/officers as mentioned in para 21 of above-mentioned judgment.
  3. Information/documents/records/statistics related to instances of lapses/negligence, details of erring officers, instances of departmental actions etc in investigation/prosecution of criminal cases, as mentioned in para 21 of above-mentioned judgment.
  4. Information/documents/records/statistics related to number of departmental actions initiated and how many of these resulted in strictures/actions against the erring officers/officials, in each year after above-mentioned judgment direction was received.

4. Year to which the above pertains: Year 2014 and afterwards

5. Designation and Address of the SPIO from whom information is required:

State Public Information Officer,

<Give here address of PIO related to Home Department of State (google to get the information)>

Encl: Fees paid via IPO No. __________________  for Rs.10/- with the application

Place:

Date:                                                                               Signature of Applicant

If you file above RTI in your state, then you can inform via Contact form OR leave a comment with following information so that the list of States can be updated for everyone to see:

1. Name of State

2. Date RTI filed on

3. Current status (Rejected/ Under Process/ Information Received/ First Appeal filed/ Second Appeal filed to State Information Commission)

Once the responses to RTIs start coming in, they can be uploaded to the site.

The post RTI to bring accountability of Police Investigation Officers (IO) and State Public Prosecutors based on Supreme Court judgment in State Of Gujarat vs Kishanbhai, 2014 appeared first on Men Rights India.

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