Anticipatory Bail In 498A IPC

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The object of the provision of Section 498A IPC 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. Sometimes adverse media coverage adds to the misery.Sections 498A/406 IPC are much abused provisions and exploited by the police and the victims to the level of absurdity. Unless the allegations are very serious nature and highest magnitude anticipatory bail should be granted.

Delhi High Court Guidelines to Police in Cases under section 498A IPC:

High Court of Delhi, case titled as”Chander Bhan & Anr. Vs State”(2008) 151 DLT 691
passed, inter-alia, the following guide lines to be strictly followed by the police authorities:-

(A) (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 prior approval of the ACP/DCP.

(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 endeavour 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.

Supreme Court guidelines on cases under section 498A IPC:

Supreme Court of India in “Arnesh Kumar v. State of Bihar” (2014) 8 SCC 273, directed as follows:

  1. All the State Governments to instruct its police officers not to automatically arrest when a case Under Section 498-A of the Indian Penal Code is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Code of Criminal Procedure;
  2. All police officers be provided with a check list containing specified sub-clauses Under Section 41(1)(b)(ii);
  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;
  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;
  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;
  6. Notice of appearance in terms of Section 41A of Code of Criminal Procedure 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;
  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.
  8. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

Anticipatory Bail In 498A IPC:

Courts while dealing with anticipatory bail applications for an offence u/s 498A IPC must
take in to consideration the well laid down principles of granting anticipatory bail.

Click here to read about Factors and Parameters that need to be taken into
consideration while dealing with anticipatory bail.

While considering the application for anticipatory bail for an offence under section 498A IPC the Court must also consider Rules under Dowry Prohibition Act. It has been held by Delhi High Court in the case of “Neera Singh Vs State” 138(2007)DLT152 as follows:

“Now-a-days, exorbitant claims are made about the amount spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. I consider time has come that courts should insist upon disclosing source of such funds and verification of income from tax returns and police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with. Rule 2 of the Dowry Prohibition(Maintenance of List of Presents to the Bride and Bridegroom) Rules, 1985 reads as under:

2. RULES IN ACCORDANCE WITH WHICH LISTS OF PRESENTS ARE TO BE MAINTAINED.-(1)The list of presents which are given at the time of the marriage to the
bride shall be maintained by the bride.

(2) The list of presents which are given at the time of the marriage to the bridegroom shall be maintained by the bridegroom.

(3) Every list of presents referred to in Sub-rule(1) or Sub-rule(2)-

(a) shall be prepared at the time of the marriage or as soon as possible after the marriage;

(b) shall be in writing;

(c) shall contain:

(i) a brief description of each present;

(ii) the approximate value of the present;

(iii) the name of the person who has given the present; and

(iv) where the person giving the present is related to the bride or bridegroom, a description of such relationship.

(d) shall be signed by both the bride and the bridegroom.

5. The Metropolitan Magistrates should take cognizance of the offence under the Act in
respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn. If huge cash amounts are alleged to be given at the time of marriage which are not accounted anywhere, such cash transactions should be brought to the notice of the Income Tax Department by the Court so that source of income is verified and the person is brought to law. It is only because the Courts are not insisting upon compliance with the relevant provisions of law while entertaining such complaints and action is taken merely on the statement of the complainant, without any verification that a large number of false complaints are pouring in.”

Non-Recovery of stridhan:

The fact that stridhan of the bride has not been recovered cannot be a ground for refusal of anticipatory bail since it has been held by the Delhi high Court in numerous judgments that the proceedings under Sections 406 and 498-A are not meant for the recovery of the jewellery and the dowry articles.

Conclusion:

By misuse of the provision of Sec. 498A IPC new legal terrorism can be unleashed. No
evidence about giving of dowry or resources of the complainant’s family claiming spending of huge amounts is collected by the police. This all is resulting into gross misuse of the provisions of law, hence Courts must be liberal and vigilant while adjudicating anticipatory bail application in a case under section 498A IPC.

About the author:

Gaurav Sharma is the founder of Easy Kanoon. To know more about anticipatory bail in
cases under section 498A IPC, write to us at easykanoon@gmail.com.

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