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shaan (Student)     09 July 2014

Will police still arrest in 498a with 7+ years jail sections

With recent Judgment in Arnesh Kumar's case by Justice C K Prasad, the undue arrest in 498-A cases by Police has been restricted. My doubt is that, since the judgment says that it is also valid for all the crimes with less than 7 years imprisonment, if the FIR lodged by disgruntled wife has 498-A with IPC sections like 307 and 312 or 314 etc., which have minimum imprisonment of more than 7 years; will the Police have powers to do undue arrest at their discretion? 

To me, if this would be so, then the 498-A misuse will continue with such disgruntled wives now adding an additional section with imprisonment of more than 7 years; to keep harassing husband and other members of in-laws side. My case is in UP and mediation is about to be failed; so what would be the disaster avoidance plan for me. Also has the Supreme Court judgment come into effect immediately after it's announcement? Kindly advise asap.



Learning

 10 Replies

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     09 July 2014

I request you to read each of my posts carefully in the following links -

 

https://www.lawyersclubindia.com/forum/Fight-against-misuse-of-498a-ipc--103100.asp#.U6gslUCm9dg


https://www.lawyersclubindia.com/forum/Best-way-to-fight-against-false-498a-103111.asp#.U6gsRkCm9dg


https://www.lawyersclubindia.com/forum/details.asp?mod_id=104564&offset=1

T. Kalaiselvan, Advocate (Advocate)     09 July 2014

The judgement is very clear and it restricts to the offences punishable less than 7 years, so your question has an answer in it.


(Guest)

IPC 307, 312 and 314 are some pretty serious sections and yes to your answer that all 7 or more years imprisonment sections will not come under this . But if wife use these sections for misuse of 498A primarily then the burden of proof on wife will be heavier and faliure to prove these sections will create quite big issues for wife . So its quite unlikely that these sections are going to be used much just for supporting the misuse of 498A...

navdeep (ABM)     09 July 2014

i have 498a along with 504, 506 and DP act?? What about my case??

sankar P (supervisor)     09 July 2014

Agreed Sir @ shri. Kalaiselvan sir & Deepak sir....

T. Kalaiselvan, Advocate (Advocate)     09 July 2014

@Navdeep: What is the status of your case under the referred sections?, if your FIR has already been registered, you may go  for AB, if not then do not worry.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     10 July 2014

The recent judgment does not take away the power of the police officer to arrest the accused, the police officer just has to fill a form before arresting and produce the said form alongwith accused to the Magistrate.

 

Also, these are early days, lets wait for the implementation of the orders and in which spirit they are implemented. I was discussing this recently with an officer in Haryana and he said, that arrest would be necessitated for recovery u/s 406 as the delay in arrest can mean the accused can sell that and hence tamper with the evidence.

 

I would request everyone facing 498a to apply for AB regardless of these guidelines as given by SC. Such guidelines have been given by SC and other HC in the past as well.

 

Regards,

 
Shonee Kapoor

If you don't fight for what you want, don't cry for what you LOST.
1 Like

(Guest)

Agreed word by word with Mr. Shonee Kapoor. According to order the police have to follow a 9 point checklist under S-41 Crpc and like you said fill a form before arresting someone . Ofcourse this judgment do not take away the arresting power at all. But now the police will be answerable to court if they had arrested someone who was not a threat to any person, not going to tamper evidence, not going to abscond but still got arrested without a preliminary investigation. I agree with you that it will take some time to spread out and the police officials will be notified regarding this process but still its a step to reduce arresting without investigating even a bit. Specially in cases of 498A which was the prime topic in here of which misuse is going way too much now a days. IPC 406 definitely is something in which evidence could be tampered for sure so an arrest is needed there even without investigation.

 

P.S. Off the topic you have a great website and free consultation thing by you is definitely the best thing

 

Regards

Deepak Saxena

Adv. Delhi H.C. 

Biswanath Roy (Advocate)     11 July 2014

PROTECTION AGAINST HARASSMENT FROM ALL  POSSIBLE  ARRESTS IN COGNIZABLE OFFENCES MUST BE GUARDED BY AN ORDER OF ANTICIPATORY BAIL.  BE THAT WHATEVER THE ORDER OF S.C. IS.

1 Like

Sudhir Kumar, Advocate (Advocate)     12 July 2014

you have been well advised by senior expert.

 

Please do not get carried over by any advise for committing any fraud etc.

 

defend on merits.


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