I am most ashamed, most aghast, most astonished and most appalled to learn that none other than the oldest High Court of India that is the Calcutta High Court has in a most learned, laudable, landmark and latest judgment titled Swapan Kumar Das vs State of West Bengal & Anr in CRR No. – 2455 of 2018 with CRR No. – 2864 of 2018 that was pronounced as recently as on August 21, 2023 in the exercise of its criminal revisional jurisdiction has minced just no words to observe unequivocally that:
The legislature has enacted the provision of Section 498A to strike out the dowry menace from the society. But it is observed in several cases that by misusing of said provision new legal terrorism is unleashed.
We see that there were two separate criminal cases that had been filed against the petitioner under different Sections of the Indian Penal Code (IPC), namely 498A, 307, 506(ii) and 406. It must be mentioned that a Single Judge Bench comprising of Hon’ble Mr Justice Subhendu Samanta was hearing two pleas by a husband and his family members facing charges under Section 498A of IPC that were levelled by his estranged wife who alleged mental and physical torture by her husband and his family members. The Calcutta High Court found that two compact discs (CDs) provided by the complainant wife did not establish prima facie offence against the husband and his family members.
It definitely cannot be glossed over by anyone that one after the other we see that different High Courts and so also the Apex Court are raising their most serious concern on the gross abuse of Section 498-A of IPC to the extent that Calcutta High Court even went to the extent in its judgment titled Swapan Kumar Das vs State of West Bengal & Anr in CRR No. – 2455 of 2018 with CRR No. – 2864 of 2018 that was pronounced as recently as on August 21, 2023 to observe unequivocally that:
The legislature has enacted the provision of Section 498A to strike out the dowry menace from the society. But it is observed in several cases that by misusing of said provision new legal terrorism is unleashed.
It is high time and Centre must at least now take some inspiration from this most learned judgment and amend our penal laws to make it a punishable and non-bailable offence if a woman files false cases under Section 498A of IPC before enacting the latest penal laws which have been amended by Centre but are yet to come into effect! This will definitely act as a strong deterrent to a women to refrain from indulging in legal terrorism only if a fixed jail term of at least an year is strictly imposed on her if she dares to lodge a false case! This brooks no more delay any longer!
It must be asked: How long will men only be made a scapegoat compelled to suffer immensely, immeasurably and indefinitely because of draconian Sections like 498A of IPC? It cannot be an endless wait for innocent men made to suffer for being born as a men! No denying it!
While flagging the rampant and gross misuse of Section 498-A of IPC, the Indore Bench of Madhya Pradesh High Court in its learned, laudable, landmark and latest judgment titled Rajan Vs The State of Madhya Pradesh in Misc. Criminal Case Nos. 35596/2018 & 16764/2019 that was reserved on August 3, 2023 and then finally pronounced on August 17, 2023 has commented most sharply on the gross misuse of Section 498A pertaining to cruelty to women of the IPC observing without mincing any words that:
Nowadays there is a package of five cases being filed by the wife against the husband and his family members in family court and the criminal court under IPC, the Hindu Marriage Act and the Protection of Women from Domestic Violence Act, 2005.
The Single Judge Bench comprising of Hon'ble Mr Justice Vivek Rusia has added that Section 498A of the IPC, which is meant to punish cruelty by a husband or his relatives, is being misused nowadays as also observed by several High Courts and the Supreme Court. It must be mentioned here that the Court was hearing applications to quash a first information report (FIR) accusing a husband and his relatives of the offence under Section 498A IPC (husband or relative of husband of a woman subjecting her to cruelty) and causing hurt.
When Centre can amend our penal laws and inspite of such amendments if no punishment is provided to women who lodges false FIR and false cases against men, his parents and their relatives then what is the point of amending penal laws and hailing it as a revamp of our laws? In other words, the overhaul in penal laws can serve their true purpose only when such rampant abuse of laws is most strictly punished so that no one is able to indulge in legal terrorism as pointed out recently by none other than the Calcutta High Court itself which is the oldest High Court of India!
In a notification No. 8265-RG issued by the Calcutta High Court as recently as on August 23, 2023, the Calcutta High Court has minced just no words to say in no uncertain terms that:
In pursuance of the direction of the Hon’ble Supreme Court of India, contained in the Judgment dated 31.07.2023 passed in Criminal Appeal No. 2207 of 2023 arising out of SLP (Crl.) No. 3433 of 2023 [Md. Asfak Alam –vs- The State of Jharkhand & Anr] and with the approval of the Hon’ble the Chief Justice, the following guidelines are framed by the High Court at Calcutta to be followed by the Sessions courts and all other and Criminal courts within the territory of West Bengal and Andaman & Nicobar Islands, dealing with various offences :
The endeavour of the Hon’ble Supreme Court in the above-mentioned judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorize detention casually and mechanically.
In order to ensure the above, the Hon’ble Supreme Court has been pleased to give the following directions:
- 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 Cr.P.C.
- All police officers be provided with a check list containing specified sub-clauses under Section 41(1) (b)(ii).
- 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.
- 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.
- 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.
- Notice of appearance in terms of Section 41-A Cr.P.C. 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.
- Failure to comply with 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.
- Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
In addition, it is then further stated in the next para of the notification by Calcutta High Court that:
The Hon’ble Supreme Court hasten to add that the directions aforesaid shall not only apply to the case under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a terms which may be less than seven years or which may extend to seven years, whether with or without fine.
Finally and for the sake of clarity, the Calcutta High Court then most unequivocally directs in its concluding part that:
The above directions of the Hon’ble Supreme Court shall be strictly followed.
To sum up, there is no reason whatsoever not to abide by what the Calcutta High Court has specified in the notification while exercising its jurisdiction on the appellate side. It is not hidden from anyone how brazenly Section 498A of the IPC has become a potent instrument of legal terrorism as conceded by Calcutta High Court itself and even Apex Court has conceded this and issued directions also as discussed hereinabove to check the rampant, reckless and ruthless misuse of it which definitely must be complied with in totality. There can be just no denying or disputing it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
