FIRST YOU NEED TO UNDERSTAND BASIC LEGAL TERMINOLOGY :
1. Bailable Offence, means an offence, which has been categorized as bailable, and in case of such offence, bail can be claimed, subject to fulfillment of certain conditions, as a matter of right under Section 436 of the Cr.P.C. In case of bailable offences, the Police is authorised to give bail to the accused at the time of arrest or detention.
2. Non-bailable Offence, means an offence in which the bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for grant of bail under Section 437 and 439 of the Cr.P.C. It is important to note that the grant of bail in a non-bailable offence is subject to judicial discretion of the Court, and it has been mandated by the Supreme Court of India that “Bail, not Jail” should be the governing and guiding principle.
3. Anticipatory Bail, under Section 438 of the Cr.P.C., means that a person who apprehends arrest on a wrong accusation of committing a non-bailable offence, can apply before a competent court for a direction to police to immediately release such a person on bail in the event of arrest. However, the grant of anticipatory bail is discretionary and dependant on the nature and gravity of accusations, the antecedents of the applicant and the possibility of the applicant fleeing from justice.
4. Cognizable Offence/case, has been defined under Section 2 (c) of Cr.P.C., as an offence/case in which a Police Office can arrest without a warrant.
5. Non-cognizable Offence/case, has been defined under Section 2 (l) of Cr.P.C., as an offence/case in which a Police Officer has no authority to arrest without a warrant.
NOTE:- Whether an offence/case is bailable or not bailable, and cognizable or non-cognizable, has been qualified under the 1st Table of the 1st Schedule of Cr.P.C., which relate to the offences under IPC.
6. F.I.R (first information report), is formal recordal of a complaint, by police in case of commission of a cognizable offence, and can be considered as a first step in the process of the investigation of a cognizable offence by Police.
7. Non- Cognizable Complaint (NCC), any complaint for the record purpose. In such type of complaints officials doesn't take any action against the accused.
DEFINITION OF 498A IPC:
“498A. IPC (INDIAN PENAL CODE): Husband or relative of husband of a woman subjecting her to cruelty–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-For the purpose of this section, “cruelty” means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
The basic essentials to attract this section are:
a) The woman must be married
b) She must be subjected to cruelty or harassment; and
c) Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband
A bare glance of the section shows that the word ‘cruelty’ covers any or all of the following elements:
(i) Any ‘wilful’ conduct which is of such a nature as is likely to drive the woman to commit suicide; or
(ii) Any ‘wilful’ conduct which is likely to cause grave injury to the woman; or
(iii) Any ‘wilful’ act which is likely to cause danger to life, limb or health whether physical or mental of the woman.
Also, criminality attached to word ‘harassment’ is free of ‘cruelty’ and punishable in the following instances:
(i) Where the harassment of the woman is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or
(ii) Where the harassment is on account of failure by her or any persons related to her to meet such demand It is evident that neither every cruelty nor harassment has criminal culpability for the purposes of Section 498-A. In cases of physical violence and infliction of injury likely to cause grave injury or danger to life, limb or health, the facts speak for themselves.
So, we can see that, this law deals with four types of cruelty:
(i) Any conduct that is likely to drive a woman to suicide,
(ii) Any conduct which is likely to cause grave injury to the life, limb or health of the woman,
(iii)Harassment with the purpose of forcing the woman or her relatives to give some property, or
(iv)Harassment because the woman or her relatives are either unable to yield to the demand for more money or do not give some share of the property.
The nature of the offence under Section 498A is:
- Cognizable: Offences are divided into cognizable and non-cognizable. By law, the police are duty bound to register and investigate a cognizable offence. 498A is a cognizable offence.
- Non-Bailable: There are two kinds of offences, boilable and non-bailable. 498A is non bailable. This means that the magistrate has the power to refuse bail and remand a person to judicial or police custody.
- Non-Compoundable: A non-compoundable case, e.g. Rape, 498A etc, cannot be withdrawn by the petitioner. The exception is in the state of Andhra Pradesh, where 498A was made compoundable.
Development of Section 498A
The section was enacted with the aim to protect women from dowry harassment and domestic violence. However, more recently, its misuse has become an everyday affair. The Supreme Court, hence, in the landmark case of Sushil Kumar Sharma v. Union of India condemned this section as ‘Legal Terrorism’. Since cruelty is a ground for divorce under section 13 (1) (ia) of Hindu marriage Act, 1955. Wives often use this provision in order to threaten husbands. In another case of 'Preeti Gupta v. State of Jharkhand', the Supreme Court observed that “serious relook of the entire provision is warranted by the Legislature. It is a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over-implication is also reflected in a very large number of cases”. Even an innocent person accused under S.498A IPC, does not get the chance of getting quick justice owing to the offence being non-bailable and cognizable. We well know that ‘justice delayed is justice denied’, hence came the 243rd report of Law commission on section 498A of IPC laying down various changes ought to be made in order to remove the flaws of this section and its misuse. A strict law in this regard needs to be passed by the parliament in order to punish those who act malafidely and tries to misguide the system of law. Law commission in its 243rd report opined that the Section along with its allied Cr.PC provisions shall not act as an instrument of oppression and counter-harassment.
In Jasbir Kaur vs. State of Haryana, case as:
“It is known that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains of an estranged marriage.”
In Kanaraj vs. State of Punjab, the apex court observed as:
“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”
In State Vs. Srikanth, observed as:
“Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”
Supreme Court, In Mohd. Hoshan vs. State of A.P.case, observed as:
“Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”
-----------------------------------------------x-x-x-----------------------------------------------------
Comments
Post a Comment