(Querist) 17 October 2013
This query is : Resolved
I have heard that recently Supreme Court of India and Delhi High Court of India have passed judgement that under Section 498a the arrest cannot be made immediately (like it used to happen in the past).
Instead I have heard that husband's party get a notice / call about the complaint to appear at a certain date , thereby giving them time to apply for anticipatory bail.
Please let me know if this is true.
Also, What are the steps that husband can take to protect his family from being arrested if the wife files Section 498a'
(Expert) 17 October 2013
don't worry ! SC has already pass an order that only prime/principal accused will be punished and the family member of husband will get bail in this matter.
there is no any option to save earlier your family before filing of case. after filing the case you may be file anticipatory bail for your family member.
(Expert) 17 October 2013
Now a days even the Courts also know that most of the 498A cases along with DV Act are false and Court may be allowed the bail of the accused, but as the section is non-bailable they hesitates to do so on the same day and send the accused to the jail for few days. But in very few cases the bail get reject by the lower Courts.
The question arises that is there any way for the accused persons which protect them from the jail and from the harassment by the police? The answer is yes.
In important judgements by Hon.supreme court in "Amrawati v/s State" and "Lal kamlendra pratap singh v/s State" lots of important decisions taken and one of them is that "If the accused person surrender himself before the court along with his bail application,either his bail application disposed of same day and if not possible to the same day,he must not be sent to the jail unnecessary and released on the personal bond till the disposal of the bail application".
However I personally advise you to file an application u/sec.438 Cr.P.C.for anticipatory bail in the District or High Court to avoid risk.
(Expert) 17 October 2013
in the matter of filing an application must be prefer first to district court then High court because if your application be rejected at DC you have chance to file the said application in HC.
(Expert) 17 October 2013
Anticipatory bail is the only protective method you can adopt. There is no specific decision wherein supreme court has directed the police to go slow in arresting the accused person in 498A case.
(Expert) 17 October 2013
Dear Ajit in response to your Question the arrest cannot be made immediately
READ CARE FULLY THIS JUDGEMENT.
PUNJAB AND HARYANA HIGH COURT Before :- R.L. Anand, J. Crl. Misc. No. 23071-M of 1999 and Crl. Misc. No. 31455-M of 1999. D/d. 15.10.2001
Sadhna Sharma - Petitioner Versus Sanjeev Kaushal - Respondents
For the Petitioner :- Mr. K.S. Ahluwalia, Advocate. For the Respondents :- Mr. R.S. Riar, Sr. Advocate with Mr. D.P.S. Kahlon, Advocate.
Criminal Procedure Code, 1973, Section 482 - Indian Penal Code, Sections 498a and 420 - Dowry Prohibition Act, Sections 3 and 4 - Accused in Police custody for an offence under Sections 498a and 420 and Dowry Prohibition Act - Accused not produced before Magistrate but let off by police - Accused fled away to Australia - S.S.P. directed to hold an inquiry against guilty police officers - Magistrate directed to take steps for extradition of the accused and also hear the parties in the matter of cancellation of passports.
R.L. Anand, J. (Oral) - I have heard Shri R.S. Ahluwalia, Advocate on behalf of the petitioner and Shri R.S. Riar, Sr. Advocate, assisted by Shri D.P.S. Kahlon, on behalf of the respondents and with their assistance, have gone through the record of this case. 2. Some facts can be noticed in the following manner :
An F.I.R. No. 46 of 1996 was registered against Sarvshri Sanjeev Kaushal, R.M. Kaushal and Smt. Sudershan Kaushal at the instance of Smt. Sadhna Sharma under Sections 408, 498-A, 420 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. The accused could not be arrested though it is alleged by the complainant that at one point of time they were arrested but they were allowed to go by the police in connivance with the accused. Resultantly, the accused were declared proclaimed offenders in the year 1996 by the area Magistrate. Their properties were attached. The complainant came to the High Court by way of Crl. Misc. No. 20088-M of 1996 under Section 482 of the Code of Criminal Procedure and that the same was disposed of on 25th February, 1997 with the following orders : 3. "To what an extent the police can connive with the accused is a glaring instance which has come to the notice of this Court for which an inquiry has become necessitated. 4. Smt. Sadhna Sharma, resident of House No. 3329, Sector 19-D, Chandigarh, has filed the present petition under Section 482 Cr.P.C. praying that the investigating officer of the case FIR No. 46 dated 2.3.1996 under Sections 406 and 498-A IPC and subsequent offences under Sections 420 and 494 IPC be directed to initiate and take effective steps for impounding the passports of respondent Nos. 1 to 3 namely Sanjeev Kaushal, R.M. Kaushal and Smt. Sudharshan Kaushal, who have been declared as proclaimed offenders by the Court of Chief Judicial Magistrate, Chandigarh and to initiate steps for extradition of respondent Nos. 1 to 3, who are presently residing in Australia away from the arm and process of law. 5. On 2.3.1996 petitioner Smt. Sadhna Sharma lodged an FIR against respondent Nos. 1 to 3 in Police Station Sector 39, Chandigarh bearing No. 46 under the various Sections. The contents of the FIR have been produced in para No. 3 of the writ petition and I need not to incorporate the same in the present order because the controversy rests somewhere else. 6. The grouse of the petitioner is that accused Nos. 1 to 3 in pursuance to the FIR were arrested by the Police on 2.3.1996 and police officers were none else other than Shri Balhar Singh, Rajinder Singh and Inspector Mani Ram. In spite of the fact that the accused were taken into custody firstly their arrest was not recorded in case diary and secondly in the roznamcha no entry was made and thirdly those accused were not put behind the bars nor produced before the Ilaqa Magistrate for remand. Rather the police officers posted in the Police Station connived with respondent Nos. 1 to 3 who were allowed to escape from India to Australia via Nepal and this is clear act of dereliction in duty on the part of police officials who were the incharge of the police station at that time. This aspect of the case stands fortified when the attention of this court was drawn to application which was moved by respondent No. 1 himself. He wrote a letter to Home Secretary, Chandigarh containing the following allegations :
"Next day after this threat, my brother-in-law Mr. V.K. Sharma, in connivance with Sector 39 Police and after bribing the Sub-Inspector Balhar Singh and Rajinder Singh, lodged a false complaint/FIR No. 46/96 vide DDR No. 12 dated 2.3.1996 under Sections 406, 498-A IPC against all of my family members (father, mother and brother) without any evidence or documentary proof supporting their false allegations. Our luggage in the house was also searched by Sub-Inspector Balhar Singh, in the presence of the complainant Mr. V.K. Sharma. The police fully misused their brutal power and position to humiliate us before the complainant, without any evidence or documentary proof. Myself, my brother, Dr. Rajeev Kaushal and aged father Mr. R.M. Kaushal (72) were detained in the Sector 39 Police Station for two nights and we all were put under house-arrest for about a week. 7. The above contents would show that police went into action after registering the case. Prima facieoffence was made out. It was incumbent on the part of the police to arrest the accused under Section 41 Cr.P.C. and for the reasons best known to them under what circumstances, the three accused escaped from the police custody is a matter of inquiry for which the orders are going to be passed in the present order. 8. In the additional affidavit dated 27.1.1997 filed by respondent No. 5 it is fully established that Sanjiv Kumar Kaushal accused made a complaint to the Home Secretary. The stand of the Union Territory Administration in the present affidavit is that since the investigating agency was working sincerely and was making efforts to do justice to the complainant therefore, Sanjiv Kaushal wrote a letter to the Home Secretary. It has also been clarified by Shri Yadav that complaint of Sanjiv Kaushal was dealt with by the Home Secretary and inquiry into the allegations was made which was considered by the DSP Crimes U.T. Chandigarh and nothing was found in the conduct of the investigation in the light of the stand taken by respondent No. 4, the affidavit of Balhar Singh becomes of little bit importance. In para No. 3 of the affidavit dated 6.2.1997 this officer has stated that he was not the investigating officer of the case in hand at any stage of the investigation. It was specifically stated in this affidavit that the deponent did not make any entry in the police diary nor he recorded any statement under Section 161 Cr.P.C. of any witness during the investigation. The Investigating Officers of this case were Rajinder Singh ASI and Mani Ram Kadian. The investigation was entrusted to Crimes Women Cell later on and the investigation was conducted by Shri Hardev Singh Inspector and Jagbir Singh Sub-Inspector. One thing has become very pertinent from the affidavit or Balhar Singh that he does not deny his presence in the police station on 2.3.1996. 9. It is the admitted case of the parties that the accused Nos. 1 to 3 at present are not residing in India and they have gone to Australia. Also it is the stand of respondent No. 4 that these three accused were declared proclaimed offenders. However, the challan against respondent Nos. 1 to 3 has already been put in Court in their absence. Nobody can escape from the clutches of the law which is the supreme as repeatedly held, and said by the Hon'ble Supreme Court. Also the police, whether it belongs to the State or Union Territory cannot be allowed to play havoc with the provisions of law. The police has to discharge its duties sincerely and cannot be allowed to connive either with the complainant or with the accused. This trend of connivance has been seen repeatedly by the law courts. On 2.3.1996 onwards respondent Nos. 1 to 3 were in the custody of police as per the admission of respondent No. 1. Under what circumstances they were let off and by whom, is a matter which requires to be adjudicated. This Court is not convinced with any amount of argument which is coming from the side of the respondents that on 2.3.1996 onwards respondent Nos. 1 to 3 were never in the custody of the police authorities of Police Station Sector 39, Chandigarh. 10. In view of above the following directions are given :
(i) Shri C.S. Reddy, SSP Chandigarh is directed to hold an inquiry firstly to ensure whether on 2.3.1996 onwards, respondent Nos 1 to 3 were in the custody of the police officials or Police Station Sector 39, Chandigarh in case FIR No. 46, referred to above; ii) whether Balhar Singh, Rajinder Singh and Mani Ram Kadian were in the Police Station on 2.3.1996; iii) whether these three officials at any stage of the case conducted the investigation of the case in FIR in question; iv) If respondent Nos. 1 to 3 were arrested, summoned or appeared in connection with the FIR No. 46 on 2.3.1996 onwards; under what circumstances, they were let off by the police without the orders of the Magistrate; v) Mr. Reddy will also enquire into the allegations under what circumstances these three persons left the country without prior permission of the police or prior permission of the court concerned. 11. In the inquiry, the inquiry officer Mr. Reddy shall associate the complainant who will be at liberty to lead such evidence in order to support her allegations of the present petition. 12. The inquiry officer shall submit the report to this court within six months from the receipt of the copy of this order. 13. The order to give effective relief to the petitioner directions are given to the trial Court to take all appropriate and legal steps in order to secure the custody of respondent Nos. 1 to 3 and the trial Court should go to the extent in making a liaison with the Government of India for the extradition of respondent Nos. 1 to 3. 14. Directions are also given to the learned Chief Judicial Magistrate to make a move to the Passport Authorities for the impounding/cancellation of the passports of respondent Nos. 2 and 3. These directions have become necessary so that all the respondent Nos. 1 to 3 may face the prosecution against then. Copies of this order be sent to Shri C.S.P. Reddy, SSP, Chandigarh and Sanjiv Kumar Judicial Magistrate 1st Class, Chandigarh. 15. Before I part with this order it is left open for the trial Court to withdraw the order declaring respondent Nos. 1 to 3 as proclaimed offenders.
This petition stands disposed of." 16. Thereafter, the learned Magistrate vide his order dated 15th March, 1997, Annexure P-2, recalled the order vide which was the accused were declared as proclaimed offenders by making observations in para No. 2 of the order that as the High Court had observed, therefore, he recalled the order vide which the accused were declared as proclaimed offenders. In the same order dated 15th March, 1997, the learned Magistrate attached the property of the accused. 17. One more development took place when accused filed an application No. 15329-M of 1999 and that application came up for hearing before my Lord Hon'ble Mr. Justice Mehtab Singh Gill who passed the following order ex parte :
The petitioners have prayed for quashing the order dated 15.3.1997 (Annexure P-1), whereby the learned Judicial Magistrate 1st Class, Chandigarh has ordered for issuance of warrants of attachment of their properties in case First Information Report No. 46 dated 2.3.1996, Police Station Sector 39, Chandigarh. Smt. Sadhna Sharma-complainant filed a Crl. Misc. Petition No. 20088-M of 1996 against the present petitioners under Section 482 of the Code of Criminal Procedure seeking certain directions to be issued by the Hon'ble High Court. The said petition came up for hearing before Hon'ble Mr. Justice R.L. Anand, who vide his order dated 25.2.1997 passed the following order :-
"It is left open for the trial court to withdraw the order declaring respondent Nos. 1 to 3 as proclaimed offenders. This petition stands disposed of." In pursuance of the direction aforesaid, the learned Judicial Magistrate 1st Class, Chandigarh in para No. 2 of his order dated 15.3.1997 observed that ".... the order declaring the accused as proclaimed offenders is recalled..." Further, the learned Judicial Magistrate in para No. 5 of his order observed that..." Warrants of attachment of the properties of the accused mentioned in the application be issued immediately..." From the above quoted observations made by the learned Magistrate in the impugned order dated 15.3.1997, it is crystal clear that there are ambiguities in the same. Once the order declaring the accused as proclaimed offender is recalled, then automatically whatever consequences follow by withdrawing the order, cannot be taken into consideration.
For the reasons stated above, I quash the impugned order dated 15.3.1997 (Annexure P-1) to this limited extent that the proceedings qua attachment of properties of the petitioners are held illegal. However, the learned trial Magistrate is directed to once again pass a fresh order in the light of the observations made by Hon'ble Mr. Justice R.L. Anand vide his order dated 25.2.1997." 18. Now a clarification is being sought by the complainant that the order passed by the learned Magistrate vide which he recalled the order of proclamation is illegal as the same is not in consonance with my order dated 25th February, 1997. 19. After hearing the learned counsel for the parties, I am of the opinion that the learned Magistrate did not appreciate the spirit of the order dated 25th February, 1997. While passing that order, I kept the matter open and it was observed by me that it will always be open to the trial Court to withdraw the order declaring the respondents as proclaimed offenders. Meaning thereby that the learned Magistrate was to satisfy himself whether it was a case of recalling of the order or not. Admittedly, the accused have not been arrested so far. They are residing abroad. The FIR was registered as far back as in the year 1996 and till today the respondents are not responding to the law. In these circumstances, the order of the learned Magistrate for recalling of the order vide which the accused were declared as proclaimed offenders was illegal. In this view of the matter, the order dated 15th March, 1997 is hereby set aside to the limited extent. Directions are given to the learned trial Court to pass a fresh order as to whether it would like to recall the order vide which the accused were declared as proclaimed offenders. In view of the facts and circumstances explained above and before passing this order on merits, the trial Court shall afford opportunity of hearing to both the parties. The learned Magistrate shall pass this order within fifteen days from the date of receipt of a copy of this order. Till the final order is passed by the learned Magistrate, the respondents are directed not to withdraw cash amount from the Bank. 20. The parties are directed to appear before the learned Magistrate on 7th November, 2001.