The Comprehensive Guide To Surviving IPC 498A

The Survivor’s Guide To IPC498A has been renamed, rewritten and divided into an introduction and 3 chapters.

Chapter one contains comprehensive excerpts from Supreme Court and High Court judgments that describe your rights and the limits on the powers of the police. Please read it to defend yourselves effectively.

Here is the link to the same document and supporting material:

A Guide To Surviving IPC 498A

_____________________________________

NHRC Tells HC: Police Must Change Way Of Probing Dowry Related Cases

New Delhi, Nov 5 (PTI) The National Human Rights Commission (NHRC) today suggested before the Delhi High Court that police change its way of investigating dowry related cases to ensure that no “innocent” is lodged in jail.
Recommending that “police needs to review its routine in conducting investigations in dowry cases to ensure that it is not misused,” the NHRC submitted a report before a Division Bench of Justices R S Sodhi and B N Chaturvedi, pursuant to its earlier order to inspect the overcrowded Tihar jail.
Appearing for NHRC, counsel Meenakshi Arora submitted that several people, including small children and very old people, have been lodged in jail in dowry related cases, which is one of the reasons for overcrowding in the prison.
Suggesting continuous monitoring of the action taken by jail authorities, she informed the Bench that maximum prisoners were found to be implicated under the NDPS and Arms Act. Most of the prisoners were found to be from the category of below poverty line, the counsel said.
Taking suo motu cognisance over a media report about overcrowding in Tihar jail, the Bench earlier asked the jail authorities to release forthwith undertrials lodged in Tihar for petty offences.
The NHRC also stated in the report that inmates were not properly provided with basic amenities besides lack of proper medical facilities to the prisoners.
Recommending an effective complaint redressal system in the jail, the report stated there were frequent fights amongst inmates.
To the recommendations of NHRC, the Bench asked the NCT government to file its response by Wednesday. PTI

_____________________________________

Nandini Satpathy Vs PL Dani: Right Against Self Incrimination

Nandini Satpathy – former Chief Minister of Orissa – against whom a case had been registered under the Prevention of Corruption Act, was asked to appear before the Deputy Superintendent of Police [Vigilance] for questioning. The police wanted to interrogate her by giving her a string of questions in writing. She refused to answer the questionnaire, on the grounds that it was a violation of her fundamental right against self-incrimination. The police insisted that she must answer their questions and booked her under Section 179 of the Indian Penal Code, 1860, which prescribes punishment for refusing to answer any question asked by a public servant authorised to ask that question. The issue before the Supreme Court was whether Nandini Satpathy had a right to silence and whether people can refuse to answer questions during investigation that would point towards their guilt.
Supreme Court Observations:
Article 20 (3) of the Constitution lays down that no person shall be compelled to be a witness against her/himself. Section 161 (2) of the Code of Criminal Procedure, 1973 [CrPC], casts a duty on a person to truthfully answer all questions, except those which establish personal guilt to an investigating officer.
The Supreme Court accepted that there is a rivalry between societal interest in crime detection and the constitutional rights of an accused person. They admitted that the police had a difficult job to do especially when crimes were growing and criminals were outwitting detectives. Despite this, the protection of fundamental rights enshrined in our Constitution is of utmost importance, the Court said. In the interest of protecting these rights,we cannot afford to write off fear of police torture leading to forced self incrimination.
While any statement given freely and voluntarily by an accused person is admissible and even invaluable to an investigation, use of pressure whether ?subtle or crude, mental or physical, direct or indirect but sufficiently substantial? by the police to get information is not permitted as it violates the constitutional guarantee of fair procedure. The Supreme Court affirmed that the accused has a right to silence during interrogation if the answer exposes her/him into admitting guilt in either the case under investigation or in any other offence. They pointed out that ground realities were such that a police officer is a commanding and authoritative figure and therefore, clearly in a position to exercise influence over the accused.
Supreme Court Directives
1. An accused person cannot be coerced or influenced into giving a statement pointing to her/his guilt.
2. The accused person must be informed of her/his right to remain silent and also of the right against self incrimination.
3. The person being interrogated has the right to have a lawyer by her/his side if she/he so wishes.13
4. An accused person must be informed of the right to consult a lawyer at the time of questioning, irrespective of the fact whether s/he is under arrest or in detention.
5. Women should not be summoned to the police station for questioning in breach of Section 160 (1) CrPC.14
An essential element of a fair trial is that the accused cannot be forced to give evidence against her/himself. Forcing suspects to sign statements admitting their guilt violates the constitutional guarantee against self incrimination and breaches provisions of the Code of Criminal Procedure, 1973 (CrPC). It is also inadmissible as evidence in a court of law. In addition, causing ‘hurt’ to get a confession is punishable by imprisonment up to seven years.

Here is the judgment: Nandini Satpathy Vs PL Dani: Right Against Self Incrimination

_______________________________________

What Is IPC 498A?

The Supreme Court has stated that: “Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC.”

Here is the link to the pdf: What Is Section 498A Of The Indian Penal Code?

Here is the same in text:

People don’t know what Section 498A of the IPC is nor do they know what to do when a 498A case is registered against them. For starters, 498A is a criminal offence that came into existence to combat domestic violence and protect women from dowry harassment.The history of this law runs as follows. In the 1980s, the incidences of ‘dowry deaths’ were steadily rising in India. A dowry death is the murder of a young woman; committed by the in-laws, when she was unable to fulfill their coercive demands for money, articles or property, categorized as dowry. Organizations across the country pressurized and urged the government to provide legislative protection to women against domestic violence and dowry. The objective was to allow the state to intervene rapidly and prevent the murders of young girls who were unable to meet the dowry demands of their in-laws. As a result of the intense campaigning and lobbying, significant amendments were made in the Indian Penal Code, the Indian Evidence Act and the Dowry Prohibition Act, with the intention of protecting women from marital violence, abuse and dowry demands. The most important amendment came in the form of the introduction of Section 498A in the Indian Penal Code (IPC).
The text of the law is given below:
Indian Penal Code – Section 498A, IPC
Introduced in the Penal Code by Criminal Law (Second Amendment) Act of 1983
(Act No. 46 of 1983)
498A. 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 punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation: For the purposes of this section, “cruelty” means
(a) Any willful 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 the 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.
Analysis of the section shows that this law deals with four types of cruelty:
Any conduct that is likely to drive a woman to suicide,
Any conduct which is likely to cause grave injury to the life, limb or health of the woman,
Harassment with the purpose of forcing the woman or her relatives to give some property,
or
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.
Section 498A of the Indian Penal Code, is a criminal offence. It is a cognizable, non-bailable, and non-compoundable offence.
Unfortunately, the formulation of this law left a host of loopholes for exploitation and abuse.
20+ years later, if a family has an estranged `Bahu’ (daughter in law) in their family, the entire family can be jailed under Section 498A of the IPC, based on a complaint in the police station. The objective of the ‘Bahu’ and her parents is to subject the family to an ordeal designed to break their will and ensure that they give in to whatever demands put forward.

This law exposes families who belong to the middle and upper middle classes of society and NRIs, as these segments of society are vulnerable to legalized extortion by corrupt agencies of the government.
There is no way to avoid a 498A from being filed, unless the family is very well connected or somehow manage to make her realize that it is not in her long term interest to change a domestic dispute into a criminal offence.
A typical case will go on for 3 to 7 years.
From the people you talk to and from the online portals you visit, you will learn that this is a criminal law to combat domestic violence and dowry harassment etc, etc, etc. I’ll ignore this and cut to the chase.
In its present form,

498a is an extortion racket

In legal terms, 498A is an offence, which 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, bailable 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.

In actual terms, 498A is an offence, which is:

• Cognizable: The police will register a 498A case since it is required by law, but they don’t investigate but go on to arrest people because of the money to be made in bribes from both sides in a 498A case.
• Non-Bailable: Since bail is at the discretion of the magistrate, all sorts of games will be played to have families locked up while negotiations go on to settle the case. This may happen in cases where the magistrates are allegedly corrupt or, the public prosecutor and the cops are in cahoots.
• Non-Compoundable: Though 498A is non compoundable, the courts are allowing the withdrawal of the case when the parties agree to reconcile or settle case. In real terms, if you pay up, the case goes away. If you don’t you’ll get stuck with a criminal case that will go on for years.

The other characteristics of this extortion racket are:

• It is a law that fosters corruption and enables govt agencies like the police to violate Fundamental Rights.
• It plays a role in gender based vote bank politics.
• It denies justice to the real victims of dowry harassment.
• It exposes innocent families to the evils of the corrupt Indian criminal justice system.
• This is a law poisoning the lower judiciary by exposing it to corruption.
• Above all, this is a gamble bound to fail if the accused choose to fight back.

Motives And Instigators:

Let’s start with the motives and instigators:

• Money: The greatest of motivators. A 498A can lead to great terms for a fat cash settlement, or help her dad or sibling in their ventures, etc, etc.
• Vengeance: Hell hath no fury like a woman scorned. She will have her revenge and the family will collectively bear the brunt of it. The 498A Wives have a soft corner for their mothers -in law and sisters -in law. They may very well see the inside of a prison.
• Guilt: She’s done something wrong, may have committed adultery and got caught in the act. She wants to cover it up with a dowry harassment case to garner sympathy and to provide cover for her guilt. It also puts her in a good position to negotiate a fat settlement and gain custody of kids, if kids are involved. 498A will be filed when paternity is in question. Don’t count on DNA evidence, as the courts do not/ or are reluctant to allow it. Indian law is still ruled by the evidence act from 1872.
• She Is Just Not Into Her Husband: She may not like her husband and 498A is a convenient tool to get out of the marriage.
• She Is A Control Freak: She wants to control her husband in every possible way. She may also want her husband to not support his parents and siblings in any fashion regardless of his ability to do so. She may want her husband to throw his parents out of their house. Her goal is to gain control of all aspects of his life, including finances and to break the bonds and responsibilities that tie him to his family. Her failure to do so will result in a 498A.
• To Marry The Boyfriend: This is a new trend whereby she will file a 498A just to force her husband into settling the divorce with a chunk of cash and then go on to marry her boyfriend. They will use the cash to set up their “Chota Sa Ghar”, or their “Premiyon Ka Mahal” if the settlement is large enough.

498A is the perfect tool for extortion and/or to wreak vengeance on a family. The main ingredients that go into making it an extortion racket are:

• The involvement of the corrupt, untrained, Indian police force in a domestic dispute.
• The involvement of the overburdened and unregulated lower courts and the convoluted and lengthy Indian justice delivery system.
• The non-enforcement of penalties (Section 182) for filing frivolous cases or for perjury.
• Political/police influence from the other side. If this is a factor in your case, I kid you not; you are in for an ordeal that will require extra doses of fortitude, courage and patience to overcome.

All these factors will be used to leverage money out of a family or subject ther family to the kind of harassment that can only be defined as torture. It is no wonder that the Supreme Court (Sushil Kumar Sharma Vs. Union of India Writ petition(C) no.141 of 2005) has condemned 498A as “Legal Terrorism”, though ruling 498A constitutional.
To understand how to survive this ordeal read the contents of the link below:

A Guide To Surviving IPC 498A

END

_________________________________________________

Justice JD Kapoor In Action Again: Fines ICICI Bank Rs50 Lakhs

I was wondering what Justice Kapoor was doing these days. He is the judge who was among the first to highlight the abuse of 498A and ended up having his chair broken for his honesty.

Here is a photograph of him:

This is what he had said:

“Once a complaint is lodged under Sections 498A/406 IPC whether there are vague, unspecific or exaggerate allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out.“

Well, he has been busy, this time with the consumer forum, protecting consumers from the hired goons called recovery agents.
Click here for the article:
An excerpt:

“NEW DELHI: The Delhi Consumer Commission fined ICICI bank a whopping fine of Rs 50 lakh for employing “goons” to recover loan and deplored the practice of the banks intimidating consumers to pay the installments.
In the significant judgement, the Commission deprecated the “audacity and impunity” with which the banks have been effecting forcible possession of vehicles and ordered ICICI also to pay Rs 5 lakh to a consumer, who was mercilessly beaten by the recovery agents while they snatched a loaned car from him.
“No civilised society governed by rule of law can brook such kind of conduct,” the Commission’s President Justice J D Kapoor said, adding the violent methods adopted by the recovery agents were serious violation of “human rights”.
Holding the ICICI Bank guilty of “unfair trade practice,” the Commission termed such miscreants as “yahoos” and said they are boorish and a brutal lout, who care a fig for legal and judicial authorities, including the Supreme Court.
While taking to task the leading bank, it vented its anger on ICICI for flouting the apex court’s direction that restrained all the financial institutions from employing musclemen to recover a loan amount or possession of a vehicle. ”

Here is more about the same from Atimes.com:

http://atimes.com/atimes/South_Asia/IK08Df03.html

Here is the judgment he is famous for:

https://ipc498a.wordpress.com/wp-content/uploads/2007/03/justice-jd-kapooronarrest.pdf _______________________________________________________

IBN Live Highlights The Plight Of 498A Victims On Zindagi Live

Here is the link: http://features.ibnlive.com/special/zindagi-live.html
Details:
Guilty until proven innocent

Sunday, Nov 4

10 am & 8 pm

They get punished and their families get punished. They get punished for a crime before it’s proved. They lose their jobs, their children and their piece of mind. That’s Zindagi Live this week on IBN.

___________________________________________________

Justice Dhingra: Police Do Not Investigate In 498A Cases (Crl.Apl No. 696/2004)

News Flash

This judgment of Justice Dhingra led to the standing order from Delhi Police Commissioner YS Dadwal, prohibiting the arrests in 498A cases without the permission of the DCP (Jun/21/2008).

You can read about this here:  Delhi Police Commissioner: No 498A Arrests W/O Permission Of DCP

__________

Publication: Times Of India Delhi;
Date:Nov 2, 2007;
Section:Times City;
Page Number:5
HC: Wife can’t use failed marriage to harass in-laws
Abhinav Garg | TNN

New Delhi: Dismayed by the increasing misuse of anti-dowry laws, the Delhi high court has observed that failed marriages are ‘‘not a crime’’ and berated the tendency by women to see souring of matrimony as valid ground to get even with the husband and in-laws or to extract money.
‘‘A failed marriage is not a crime. However, provisions of section 498-A (cruelty by in-laws or husband) are being used to convert failed marriages into a crime and people are using this as a tool to extract as much monetary benefit as possible,’’ Justice S N Dhingra said on Thursday while acquitting the husband, in laws and ‘jethani’ of a woman who had alleged that they poured kerosene on her and set her on fire due to her inability to get dowry or secure an employment for her husband.
‘‘It must be acknowledged that marriages do fail and there is a mismatch not only in an arranged union but even in love marriages, which is discovered during the continuation of married life,’’ the judge remarked as it turned out that the harassment charge was slapped by the wife because she was unhappy with her husband’s unemployment and a life of penury.

Excerpts:

• ” It is her own case that a container of 05 litres of kerosene oil was poured on her. 05 litres of kerosene oil is an enormous quantity of oil and if this quantity is poured on a person and fire is lit, he/she will immediately turn into a fire ball. Presuming that the complainant had extinguished the fire immediately by pouring a bucket full of water on herself and by tearing her clothes, in that case the unburnt kerosene oil would remain on clothes and she would have been profusely smelling of kerosene oil. Not only her clothes but her entire body would have been drenched with kerosene oil and her clothes would have been drenched with kerosene oil and water. It is not her case that when she was removed to hospital her clothes were changed or she was washed off and bathed, rather her allegations are that she was continuously beaten for two hours before having been removed to the hospital and she kept lying there for two hours in kerosene oil and water. It cannot be believed that on seeing a patient in such a condition, doctor would have closed his eyes and would not record the condition in the MLC. “
• “Her husband was not a criminal neither it is alleged that he had any criminal background. A poor man who was starving for his survival and had to work as a labour from morning till evening for livelihood, could not have given threats to kill his own son and father-in-law. This story of threat seems to have been developed later on by the complainant in consultation with father. “
• “The Courts must be very cautious during trials of such offences. In all these cases in the name of investigation, except recording statement of complainant and her few relatives nothing is done by police. The police does not verify any circumstantial evidence nor collect any other evidence about the claims made by the complainant. 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.”
• “From the entire documents and the testimony of the witnesses I come to the conclusion that it is an unfortunate case where the complainant by making false statement implicated the entire family in offenses of under Section 307 and 498 A IPC. The Trial Court was not cautious enough to even look to admitted documents on record before convicting the family on mere statement of an estranged wife. Trial Courts should guard themselves from being swayed by emotions. They should consider entire circumstances and should carefully analyze the entire evidence. Poverty should not be allowed to become a crime. Neither failed marriage be permitted to be a crime.”

Here is the judgment: Delhi HC: Wife Can’t Use Failed Marriage To Harass In-Laws

___________________________________

AP HC Gives A Lesson In Life

Here is the translation:

Hyderabad Nov. 1: The Andhra Pradesh High Court on Thursday dismissed a petition filed by Ms Sumakiran Mallena, a software professional, requesting that her husband be prevented from donating a portion of his liver to his ailing father. While dismissing the petition, Justice C.V. Nagarjuna Reddy said he was pained that the petitioner had ignored the fundamental reality that her husband owed his existence on this earth to his parents. “It is the selfless sacrifices of the parents that make a child grow and prosper in every respect,” he said. The petitioner had also ignored the reality that nobody could limit or control the mutual affection between parents and children, said the judge. “I find it hard to refrain from expressing some of my feelings before parting with this case,” he remarked. Justice Reddy pointed out that the petitioner did not seem to be conscious of the fact that she herself was a prospective parent and might be in the same situation. He said that the facts of the case raised more ethical issues than legal or constitutional issues, and added that a family squabble was being given the colour of a Constitutional issue in the writ petition. Sumakiran, software analyst in the Intergraph Consulting Private Limited in Secunderabad, is the wife of Nagasayana Baki who is working as a telecom engineer in Minneapolis of the United States . His father, B.G.K. Prasad, is suffering from liver cirrhosis and is being treated at the Apollo Indraprasta Hospital in Delhi . Sumakiran said in her petition that doctors had advised liver transplantation and her husband had flown in from the US on October 20 to donate a portion of his liver to his father. According to her, this would affect the health of her 29-year-old husband, which, in turn will affect her life. “My life will be doomed… in the land of disease and misery,” she said. “It directly offends my right to life and liberty”. She contended that parental affection should be kept under check after a person gets married. However, the judge dismissed the assumptions. “The contention of the petitioner that her husband’s act violates her right under Article 21 is wholly beyond my comprehension,” he said.

Here is a clipping sent to me:

_______________________________________________________

Police Interrogation & The Role Of Judiciary

Here is the link: http://thedailystar.ws/law/2004/11/03/index.htm

______________________________

The Definition Of Torture, As Per The Supreme Court Of India

The Supreme Court in Arvinder Singh Bagga v. State of U.P, 1994, described how the police treated Nidhi, the victim, in the following manner:

“On a careful consideration of all the evidence on record in the light of the surrounding circumstances I accept the claim of Nidhi that she was tortured by the police officers on 24th, 25th and 26th July, 1993. On 24.7.93 she was pressurised by J.C. Upadhyaya S.H.O., Sukhpal Singh, S.S.I, and Narendrapal Singh S.I. and threatened and commanded to implicate her husband and his family in a case of abduction and forcible marriage thereafter. She was threatened with physical violence to her husband and to herself in case of her default and when she refused her family members were brought in to pressurise her into implicating them. On 25th July 1993 she was jolted out of sleep by Sukhpal Singh S.S.I. and made to remain standing for a long time. She was abused and jostled and threatened by J.C. Upadhyay, Sukhpal Singh and Narendrapal Singh with injury to her body if she did not write down the dictated note. Sukhpal Singh SSI even assaulted her on her leg with Danda and poked it in her stomach. She did not yield to the pressure.”

The Ho’nble judge then went on to define torture:

“Torture is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even more grave”

From this judgment, it is very clear that each time our families are threatened by the police with the old threat of “Pay up, or else…”, they are subjecting them to torture.

Torture, in the words of the Supreme Court of India is “is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands”

SC: The Definition Of Torture Given In Arvinder Singh Bagga v. State of U.P

_________________________________________

Saheli Vs Comm Of Police: The Indian Police Murder A 9 Year Old-1989

Saheli v. Commissioner of Police, 1989, is the case where a 9 year old boy died after being beaten by the Indian Police. The Court directed a payment of Rs 75,000 to the mother of the deceased child and permitted the Delhi Administration to take appropriate steps for the recovery of the amount paid as compensation or part thereof from the officers responsible for this dastardly act.

This was among the path breaking judgments that allowed for compensation in the event  of excesses by the lawless Indian police force.

The 9 year old was, Naresh, who succumbed to his injuries, sustained while clinging to his mother while she was being assaulted by the police. God knows if Naresh was clinging to her for protection or to protect her. The description of the event churned my stomach and months later, I was unable get over the assaulting of a woman and her child by the Indian police.

This is very personal to me as my sister faced intimidation and threats of other charges being filed against her by the SHO. For me the image of Kamlesh Kumari, the mother of the murdered 9 year old, and my sister have morphed into one.

How does one forgive something like this?

Here is an excerpt that details the incident:

“On November 14, 1987, Kamlesh Kumari was attacked by Shambu Dayal, his brother Prakash Chand accompanied by Lal Singh in civilian clothes and Sham Lal, Sub-Inspector in uniform accompanied by two others. They beat Kamlesh Kumari, tore her clothes and molested her. Her nine year old son clung to his mother to protect her when Lal Singh took him away and forcibly threw him on the floor. Lal Singh also asked Shambu Dayal to beat Naresh. Kamlesh Kumari was dragged away to the police station and a criminal case was imposed upon her of trespass. She was sent to Tihar Jail and her lawyer got her released on November 16, 1987. Kamlesh Kumari on her release came back and found that her child, Naresh was in a very bad condition. The children took shelter at a neighbour’s house and the neighbours had got local doctors to look after Naresh. On the advice of the doctors, Naresh was admitted to Ram Manohar Lohia Hospital on November 18, 1987. However, no medical legal case was registered. Kamlesh Kumari’s lawyer tried to get a medical legal case registered. At last medical legal case was registered on November 23, 1987 by the ACP, Patel Nagar at 11.30 p.m. In the FIR No. 143/87 the said ACP had written that she had said that no policeman had beaten her son although she had specifically named Lal Singh and others. On November 26, 1987, Naresh died in hospital”

Here is the link to the judgment in Judis:

http://judis.nic.in/supremecourt/qrydisp.aspx?filename=7710

Here is the pdf of the judgment: Saheli Vs Comm Of Police-1989

__________________________________________________________