High Court of AP has held in this Anticipatory Bail application, to be a falsely implicated case against petitioners. Certain guidelines were passed.
It is most unfortunate that the de facto complainant has implicated her in laws, brother-in-law, sister-in-law, parents of the mother-in-law and their relatives, two more sisters of her husband and their husbands who are residing in foreign countries. A reading of the complaint gives an impression that the de facto complainant has implicated almost all the relatives of her husband and their other close relatives who are visiting her husbands house. This is most unfortunate situation. This type of complaint gives an impression that Section 498-A is being misused to harass not only the husband of the de facto complainant but all his relatives. It is alleged that in order to force the husband to come to their terms or in order to meet their huge demands, this kind of complaints are being given. How difficult it would be for those persons staying in Australia, Jeddah or USA to come over to India and face the criminal case and prove their innocence.
Truth or otherwise of the allegations cannot be decided unless fair and dispassionate investigation is completed. Sometimes, after full-fledged trial only, truth may come out. There cannot be any doubt to say that there is dowry menace in the society. But, at the same time, it is also a fact that certain marriages are performed without any dowry. Due to ill-advice or under a wrong impression that if a complaint is lodged under section 498-A IPC, the husband may come to terms, complaints are being lodged with the police. When differences arise, there should be proper counselling before and after marriage. It is quite natural that husband and wife would have faced different circumstances and environment from their childhood resulting in gaining different impressions and opinions and therefore they may have difference of opinion on life style and on several other issues. Therefore, issues have to be resolved by trying to understand one another, particularly, when the parties have children, special care has to be taken to protect the interest of the children. The welfare of the children should be given utmost importance. Therefore, proper counselling at initial stage would help the parties. It is most unfortunate that Section 498-A IPC has become a weapon in breaking the families rather than in uniting them.
Here are the guidelines.
It appears that there is every need to give similar directions in Andhra Pradesh. Under Domestic Violence Act, protection officer is required to assist the police and the Court. Section 14 of the Protection of Women from Domestic Violence Act, 2005 envisages that the Magistrate may, at any stage of the proceedings under this Act, direct the respondents or the aggrieved person either singly or jointly to undergo counselling with any member of a service provider who posses such qualification and experience in counselling as may be prescribed. Section 498-A IPC is a cognizable and non-compoundable offence.
In the light of the above discussion, the following guidelines have been issued.
a) A fair and dispassionate investigation should be conducted. After completing investigation, the same should be verified by an officer not below the rank of Deputy Superintendent of Police.
b) During the course of investigation, if the investigating officer is satisfied that there is false implication of any person in the complaint then he may delete the names of such persons from the charge sheet after obtaining necessary permission from the Superintendent of Police or any other officer equivalent to that rank.
c) As soon as a complaint is received either from the wife alleging dowry harassment or from the husband that there is every likelihood of him being implicated in a case of dowry harassment, then, both the parties should be asked to undergo counselling with any experienced counsellor or counsellors. The report of such counsellors should be made as a part of the report to be submitted by the investigating officer to the Court.
d) The Superintendent of Police, in consultation with the Chairman, District Legal Services Authority, may prepare a panel of counsellors and such panel of counsellors along with their address and phone numbers should be made available at all the police stations.
e) Normally, no accused should be arrested, where the allegation is simple dowry harassment. If the arrest is necessary during the course of investigation, the investigating officer should obtain permission of the Superintendent of Police or any other officer of the equal rank in metropolitan cities. If arrest is not necessary, the police may complete the investigation and lay charge sheet before the Court without arresting the accused and seek necessary orders from the Court. However, in the case of dowry death, suspicious death, suicide or where the allegations are serious in nature such as inflicting of bodily injury etc., the police officer may arrest the accused. However, the intimation of such arrest should be immediately sent to the concerned Superintendent of Police who may give necessary guidance to the arresting officer.
f) No accused or witness should be unnecessarily called to the police station and as soon as the purpose of summoning them to the police station is over they should be sent back. There should not be any unnecessary harassment to any person i.e. either to the relatives of the de facto complainant or to the relatives of the husband.
g) The higher police officers should see that the parties do not make any allegations that they are forced to come to any settlement in police stations against their wish. However, this does not mean that the police officers should not make any effort for amicable settlement.
h) The advocates have to play their role in trying to unite the families. They must act as social reformers while dealing with these kind of cases, particularly, where the couple have children. Even when an accused is produced before the Magistrate, they should examine the matter judiciously and consider whether there are valid grounds for remanding the accused to the judicial custody. No accused should be remanded to judicial custody mechanically in routine manner. If the Magistrate feels that the accused cannot be released after taking bonds, necessary orders may be passed accordingly.
The Director General of Police, Andhra Pradesh, is requested to issue necessary instructions to all the concerned in this regard.
Tahmeena Kaleem and Ors Vs State of AP on 17 January 2014
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This is followed in AP High Court judgment here.