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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.

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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

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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

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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

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Justice Dhingra Ensures The Jailing Of A Corrupt Female CAW Cell Officer-2007

Justice Dhingra in action again.

This time he denies the appeal of convicted, corrupt CAW cell SI. This judgment more than reinforces my assertion that 498A and all this crap about protecting women is just a smokescreen to make money of the misery of citizens.

Here is an excerpt:

“The evidence shows that she was posted out on 28th September, 1999 and the bribe was accepted on 1st October, 1999. There is no evidence that complainant was aware of her posting out from the department. Moreover, if she was posted out on 28th October, 1999 she had no business to be there in CAW Cell. Her presence there itself shows that she had come to the office of CAW Cell only for the purpose of obtaining bribe. Even if she was not working as investigating officer, she took advantage of ignorance of the complainant that she was no more investigating officer and still accepted the bribe. I, therefore, consider that in such a case where police official, and those who are responsible for proper running of criminal justice system , indulge into the corruption, the Court should take serious view. Considering all facts I do not find it a fit case where the sentence of the appellant be suspended. The application is hereby dismissed. Nothing observed herein shall prejudice the decision of appeal on merits”

Here is the judgment:

Justice Dhingra Ensures The Jailing Of A Corrupt CAW Cell Officer-2007

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Allahabad HC-No Arbitrary Arrests In Cognizable Cases – 2004

Here is a judgment by Justice Markandeya Katju while he was serving as a judge of the Allahabad HC.
He says:
“After the promulgation of the Constitution individual liberty has become of great importance particularly in view of Article 21, which is a fundamental right. Hence it cannot be lightly interfered with. Moreover, section 157(1) Cr.P.C. States :-

“157. Procedure for investigation – (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officer not being below such rank as the State Government may, by general or special order, prescribe in this behalf to proceed, to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.”

The above provision clearly shows that it is not necessary to arrest in every case wherever a FIR of cognizable offence has been registered. No doubt investigation has to be made in every case where a cognizable offence is disclosed but in our opinion investigation does not necessarily include arrest. Often the investigation can be done without arresting a person, and this legal position becomes clear from section 157(1) of the Cr.P.C. because that provision states that the Police Officer has to investigate the case, and, if necessary, to take measures for the arrest of the offender. The use of words ‘ if necessary’ clearly indicates that the Police Officer does not have to arrest in every case wherever FIR has been lodged and this position has been clarified in Joginder Kumar’s case (supra).

In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused. This practice in our opinion is illegal as it s against the decision of the Supreme Court in Joginder Kumar’s case, and it is also in violation of Article 21 of theConstitution as well as section 157 (1) Cr.P.C. No doubt section 157(1) Cr.P.C. gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily and it must be exercised in accordance with the principles laid down in Joginder Kumar’s case (supra).”

Here is the judgment: Allahabad HC-No Arbitrary Arrests In Cognizable Cases

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Role Of Judiciary In Good Governance: Former CJI YK Sabharwal

Here is the pdf:

http://www.supremecourtofindia.nic.in/new_links/Good%20Governance.pdf

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Taking Liberties: An Article By Joginder Singh, Former Director, CBI

Here is the link to the article in the Hindu. This draws from Joginder Kumar Vs State of UP.

http://thehindu.com/thehindu/op/2002/02/12/stories/2002021200030100.htm 

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Some Interesting Stats On Arrests Of Women

In 1930, the British govt arrested 17,000 women for their involvement in the Dandi Yatra (Salt March). During 1937 to 1947 (10 Years), they arrested 5,000 women involved in the freedom struggle. From 2004 to 2006, the govt of India arrested 90,000 women of all ages under 498A. On the average, 27,000 women per year are being arrested under this flawed law. These are stats from the NCRB.

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Unported License.

Disclaimer:

The family of the writer was tortured by the Indian Police in an attempt to extort over a $100,000 by holding them in custody for over a week. The police, in cahoots with the magistrate and the PP, did this due to the ridiculous allegations made in a 498A case by his embittered ex-wife. She filed the case years after he and his family had last seen her. Thousands of 498A cases are filed each year in India by women seeking to wreak vengeance on their husbands and in-laws. Enormous sums are extorted from intimidated families implicated in these cases by corrupt Indian police officers and elements of the Indian judiciary. The author and his family haven't bribed any public official nor have they given in to the extortion. This blog aims to raise awareness of due process in India. The content of this blog constitutes, opinions, observations, and publicly available documents. The intent is not to slander or defame anyone or any institution and is the manifestation of the author's right to freedom of expression – with all the protections this right guarantees.

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