Over a month ago, I wrote the following representation to the Prime Minister of Inida, the Law Miniser and the Chairman, Law Commission. Needless to say that none of the three or their office have responded to this socially important issue. The Prime Minister is too busy doing nothing; the Law Minister is busy, having bungled the Judges' Assets Disclosure Bill; Chairman of Law Commission, none knows what is he upto.

QUOTE

To

The Prime Minister of India,

South Block,

Raisina Hills,

New Delhi – 110001.

Dear sir,

I write this letter to you as a concerned citizen and a legal professional. I crave for your valuable attention for a few minutes:

Section 498A was inserted in the Indian Penal Code 1860 by the Criminal Laws (amendment) Act, 1983. By this provision, the Parliament had decided to put an end to harassment of daughters-in-law in their marital home for dowry demands, which frequently culminated in “bride-burning”. The provision enables the State to prosecute the husband and the relative of the husband of the woman when they subject the woman to cruelty.

Over a period of time, the courts have come to recognise that this provision is one of the most rampantly misused provision in the IPC. After examining the large number of cases of acquittal under this provision, the superior courts such as the High Courts and the Supreme Court have cautioned the lower courts and the police not to be trigger-happy when it comes to booking cases under this provision. Very often, this provision is used to coerce the husband and the in-laws to part with huge ransom running into a few millions of rupees. In divorce cases, wince the family courts award lesser alimony, the married girls and their families have found Section 498A, a potent weapon for forcing settlement according to their wish.

This provision has given birth to new breed of police station lawyers, who are adept at drafting false complaints and guiding the married girls to pursue this malicious prosecution. Very often, innocent and respectable people are arrested without so much as preliminary investigation by the police. This provision has become a blank cheque in the hands of unscrupulous lawyers and the police, not to speak of the biggest beneficiaries of this racket, the married girls. The proceedings of divorce and maintenance before the Family Courts are perverted in this manner by abuse of this provision.

The provision is made draconian by treating the offence under this provision as “non-bailable” and “congnizable” under the First Schedule to the Code of Criminal Procedure, 1973. Being cognizable, the police can arrest the parents and husband without an arrest warrant. Being non-bailable, no court can grant bail, without hearing the opposition by the public prosecutor. Thus, the accused are compelled to spend a day in jail, though in judicial custody. A day spent as State Guest in the jail and the stigma and ignominy attached to arrest and imprisonment is sufficient to break the will of any typical middleclass person. Money changes hand at every stage before the case ends and husbands lose jobs driving the families to penury.

I humbly place the proposal before you to take steps to amend the First Schedule to the Code of Criminal Procedure 1973 so that the offence under section 498A is made non-cognizable and bailable. That is, a married woman or her relative intent on commencing the proceeding must file a private complaint under Section 200 of the Cr.P.C before a magistrate of first class and the bail can be granted by the trial court at its discretion.  This step will reduce the rigors of this provision and prevent abuse of Section 498A by people with no scruples and conscience. The proceedings will be brought under judicial control instead of remaining under the control of the police as it now is. As long as the provision stands on the statute book as a cognizable and non-bailable offence, the abuse of Section 498A will be continue to occur relentlessly.

There is urgent need to bring about this amendment, as Section 498A has been creating fear psychosis amongst newly married husbands and parents who have married or marriageable sons. Such a trend does not augur well for the society.

I wish to state that I have no axe to grind in this matter. Having observed in the court rooms the number acquittals under this provision as also the plight of innocent victims of this provision, I have decided to write this representation in the larger interest of the society. I hope that my fervent plea will receive urgent attention that it merits and will be acted upon.

Yours faithfully,

B.N.GURURAJ,

Advocate.

UNQUOTE

This is an article found on the WWW, which graphically explains the plight of victims of false complaints filed by greedy wives under section 498A of the IPC. Read on and pass on the article to other persons. More persons know about it, the better. One should know what kind of daughter in law he is she is bringing into the family, or what kind of wife one is getting:

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Protest against abuse of women and elders through misuse of IPC Section 498A

Save Indian Family Foundation (SIFF) is a voluntary self-help group formed in response to the large number of Arrests of innocent citizens and the alarming rise in the number of broken marriages, fatherless children and abused elders, owing to the rampant misuse of Indian Penal Code (IPC) Section 498A. SIFF is composed of Men and women of all ages, who share the twin objectives of promoting family harmony and fighting legal terrorism (carried out through misuse of women-protection laws).

Indian "women-protection laws", which are in essence wife-protection laws, assumes that wives are always honest victims and therefore require no proof of their claims before initiating action against the accused. The draconian law, IPC Section 498A, in particular, allows arrest of the husband and his relatives solely on the basis of the complaint of a wife, without any proof or investigation. Further, the accused are assumed to be guilty until proven innocent.

Added to these blind assumptions, lack of punishment or penalty for misuse of the law has made IPC Section 498A a dangerous weapon in the hands of unscrupulous wives to harass husbands along with elders and women in the matrimonial home.

Every year 30,000 innocent women are arrested (i.e. one innocent woman every 20 minutes) under IPC Section 498A. Everyday, minor girls, pregnant women, married and unmarried sisters, ailing mothers and even aged grandmothers are being sent behind bars and prosecuted based on mere allegations. Unmarried women have ended their lives unable to bear the humiliation of being arrested and rejected by prospective alliances. Lives of married women are adversely affected as well due to the unbearable stress caused by false prosecution for 7-10 years.

Every year, close to 4,000 innocent senior citizens are arrested (i.e. one innocent elderly person every 2.5 hours) under IPC Section 498A. Many retired elders have been ill-treated, thrown out of their own homes and deprived of their meager means of sustenance by greedy or vengeful daughters-in-law. Senior citizens are further harassed through false cases of domestic abuse and dowry harassment and denied mental peace

During the last leg of their lives. Aged parents have to helplessly watch their sons lose their youth, their health, their jobs, all their earnings, and sometimes even their lives, as they are mercilessly tortured by their estranged wives, aided by advocates, the Police and the Judiciary. More and more elderly parents are unable to depend on their sons for the fear of false dowry harassment cases by resentful daughters-in-law.

It is not surprising that the World Health Organization, in its report on India cited IPC Section 498A as one of the major reasons for the "Increasing Abuse of the Elderly in India".

Children are not being spared from the suffering either. Irrespective of the reasons for marital discord, wives are filing criminal cases of domestic abuse and dowry harassment to deny children access to their fathers, causing great pain to the fathers and children. Children are also being arrested under false charges of dowry harassment, and imprisoned along with older family members. In other cases, children are being torn apart from their parents who are hauled away by the police in front of their eyes, causing indelible scars and fears in their young minds.

Falsely accused men have to fight the highly corrupt state machinery on behalf of the women, children and the elderly in their families, at their own personal expense, all the while carrying the presumption of guilt on their heads. Many young men lose their employment either because they are forced to appear in court frequently, or they must often travel to a different city or state to fight their cases, or because they are unable to focus on their professions while fighting the cases.

Where would these men gather the strength and the resources needed to fight the corruption and public prosecution effectively? If the accused men are already indigent and cannot afford the best defense money can buy, their fate is sealed. Many men who are threatened or accused under false cases end their lives like Abdul Rahim of Karimnagar, Rajesh Hasmukh Desai of Ahmedabad or Pushkar Singh of Lucknow. In some cases, they end up taking the lives of their spouses before ending their own lives as was seen in the more recent case of Amit Budhiraj.

It is clear that the so-called "women-protection laws" are only creating havoc in the society and destroying the family, which has, for ages, been the greatest support system for women, children and the elderly in India.

In western countries like USA, the Government provides financial assistance (social security) to those who cannot maintain themselves. Nevertheless, social research in countries like USA shows that children raised in broken homes tend to grow up into disturbed and violent individuals. Single mothers and the elderly in these countries may receive financial assistance to make ends meet, but never enough to buy the warmth and care that comes from being part of a family. Due to similar anti-family laws, western men have even developed an aversion towards marriage and the levels of stress are extremely high among men, women and children, compared to those in family-oriented cultures.

Should we allow criminal laws like IPC Section 498A destroy the only source of social security we have in India, which is the family? Should we hope that our Government will invent a better system than family to take care of the countless single mothers, fatherless children and helpless senior citizens it is creating, and if so, at what additional cost to the society?

How many more innocent lives should we sacrifice before our Government and law enforcement system take steps to end legal terrorism and promote family-friendly laws?

In order to publicly raise these questions, SIFF is organizing a Protest against abuse of women and elders through misuse of IPC Section 498A on Sunday, 6 April, 2008 from 10:00 a.m. to 1:00 p.m. near Indira Park. We will also take out a Peace March along Tank Bund as part of the event. We are expecting 100-200 members from different places in Andhra Pradesh, Tamilnadu and Karnataka, including women, children and senior citizens, to attend the protest.

During our protest we will highlight the causes, magnitude and consequences of misuse of IPC Section 498A and urge the Government, Lawyers, Judiciary and Police to end legal terrorism. We will submit a memorandum to the Chief Minister of Andhra Pradesh with our specific demands, briefly listed below, to ensure that the innocent are protected and justice is delivered to the genuinely aggrieved:

1. Ban Police involvement in marital counseling.

2. Pass directives to resolve all marital disputes under civil law.

3. Confer equal protection upon men and women against verbal, emotional, economic, physical and sexual abuse at home and in the work place.

4. Make civil and criminal laws applicable to men and women equally. Specifically, provisions of IPC 498A, Domestic Violence Act, adultery laws, laws against rape and sexual harassment and family laws (divorce, maintenance and child custody) should be made gender-neutral.

5. End the "legal terrorism" perpetrated through the misuse of anti-male, anti-family laws. Specifically, Section 498A of IPC should be made bailable. It should also be made non-cognizable to prevent arrests of innocent citizens based on mere complaints unsubstantiated by evidence or investigation.

6. Strictly enforce the standing orders issued in the memo by the Commissioner of Police, Hyderabad, in 2002, and allow NO arrest under IPC Section 498A and related "women-protection laws" without written permission of the Deputy Commissioner of Police,

7. Grant joint custody of children to both spouses upon dissolution of marriage.

8. Make provisions to punish those who abuse the judicial process irrespective of gender. Specifically, heavy penalties should be imposed on people misusing IPC 498A and Domestic Violence Act as weapons for settling personal scores in marital disputes..

9. Establish a Ministry for Men's Welfare to cater to the needs and welfare of our fathers, brothers, husbands and sons.

We urge representatives of the print and electronic media to lend their support to our cause by attending our Protest against abuse of women and elders through misuse of IPC Section 498A on Sunday, 6 April, 2008 from 10:00 a.m. to 1:00 p.m. near Indira Park and highlighting the truth about the legal terrorism perpetrated in the name of women-protection laws like IPC Section 498A.

(In the context of false case booked under Section 498A of IPC)

By

B.N.GURURAJ, Advocate

In this narration,

CL stands for Civil Lawyer of the Accused person.

CRL stands for Criminal side Lawyer of the Accused person.

OL stands for opposite side lawyer.

Help comes from unexpected quarter

After leaving the mediation centre and its Deputy Director, we were left wondering how to file the petition under Section 482 of Cr.P.C and through whom to file. CL was to busy a lawyer to appear in court for his client. When he was acting as prima donna even for sparse appearances in the family court, how to expect him to file the petition within a day and bring up matter before the High Court? As far as CRL was concerned, for his own personal reasons, he wanted the accused persons to pursue the remedy through the police station by paying them for getting charged of offences. The CRL was bent upon discouraging the accused husband from going anywhere near the High Court. I was considering approaching some of my other advocate friends who had done work both on civil and criminal side, especially in the High Court.

Sometime late in the evening, the CRL called the accused husband and told him that the OL was willing to file a petition under Section 482 on behalf of his client, but expected to be paid by the accused husband! I thought that besides being a practice of questionable professional ethics, of taking fee from accused, when he had been representing the complainant, I also wondered, how the complainant herself could approach the High Court for quashing of her own complaint?  With some misgiving but grudgingly, I had to admit that the speed with which the OL was working was impressive, unlike our two lawyers. I told the accused husband to take his help, discuss fee with him, and ensure that it was actually filed in the High Court. That he should not lead be lead up the garden path. It is possible for one to do a lot of paper work to impress the client, but not actually file it. I described the filing procedure in the High Court to the accused husband and told him to ensure that it was filed in that manner and also to obtain a copy of petition and its number allotted by the High Court registry. I also told him about the misgiving about filing the petition in the complainant’s name and told him to mention it to the OL.

The OL asked the accused husband to come to his office the next morning by 9.30 am. I had not accompanied him to the OL’s office. But, in the course of a single day, the OL sent his juniors to obtain certified copies of documents both in sessions court and in the magistrate courts. Usually, even after tipping the chain of persons involved in issuing certified copy, it would take an entire day. But, this person had managed to get the copies in couple of hours from not one, but two courts. He had drafted the petition in the name of complainant. At that stage, the senior lawyer in their firm noticed this and told the OL that complainant herself could not file the petition. It could filed only by the accused persons. Now, the difficulty was that the OL himself could not appear for the accused alo. That would be a clear case of professional misconduct. Therefore, besides modifying the draft petition showing the cause title as filed by the accused persons, he also found another lawyer to go on record by filing vakalathnama. These things done, he managed to file the petition in the High Court registry by 3.30 pm, with memo requesting for urgent posting.

His people worked like beaver the next day to ensure that the petition crossed all the hurdles of office objections and reached the Board Branch, the department responsible for preparing the cause list for all the court halls.

Late in the evening, when I checked the High Court website for cause list for the next day, I found that this petition had been listed. It was listed way down. The matter, if at all were to reach, would come up only by 3.30 or 4.00 pm. I gave this piece of positive news the accused.

Criminal proceeding quashed by the High Court

Next day, the OL ensured that the complainant was present in the court through out the day. Similarly, accused persons, all the three were present in the court. This particular court hall was especially busy, with over one hundred matters listed each day. There were two lists for that day. The matter was not called even after 4.00 pm. The accused were feeling rather let down, and expected that it would have to be pursued the next day. However, as the luck would have it, at 4.15, the matter was called. When the learned judge saw that the matter had been settled before the mediation centre and the complainant had committed to withdraw the complaint, he formally told the High Court government pleader to take notice. After seeing that all the parties were present before him, and none wanted the proceedings to continue, the learned Judge recorded all these facts and quashed the complaint pending before the magistrate. Whole thing was over in less than ten minutes, including the dictation of order.

The accused walked out of the court and gave me the good news. It was like lifting a ton load off my chest. For the last one month, this matter had been my major pre-occupation and worry. This was on Thursday.

CRL throws wrench in the works

In the evening, while speaking to the accused husband, I told him to arrange for his travel, as the High Court had quashed the matter. He thought that he might not get air ticket during week ends and might have to travel on next Monday. However, he would have liked to leave on Saturday itself, so that on Monday, he could report to duty. From Monday onwards, his absence would have been without pay.

Then he contacted CRL to know what is the next step to be taken. Of course, it was known to us, but had to be done through him. First, CRL told him to obtain two certified copies, one for submission to the court, the other for submission to the police station. Next he told him to stay in India, until certified copies were received and application moved before the magistrate for producing the order of the High Court before the magistrate’s court. This greatly alarmed the accused husband. With unbelievable hardship, he had managed to get the civil and criminal cases concluded in time to go back to his job. Here, his own lawyer was trying to hold him down and deprive him of the job. When the accused husband explained that this was not possible, as he had to report to duty on Monday, the CRL started abusing him over phone without even pausing to listen to what the client was saying! Later on learnt that this abusive telecon went on for an unbelievable 25 minutes!

Late in the night, the accused husband called me and told me of the problem being caused by the CRL’s obstructive attitude. I told him to wait for ten minutes. I called another criminal side lawyer, whom I had known and discussed the problem with him. He categorically told me that for producing the certified copy of the court’s order before the magistrate, available accused persons could appear before the court and for the absent accused, an exemption petition could be filed under Section 317(1) of the Cr.PC. He told me to send the accused husband away as nothing else could go wrong, after the High Court had quashed the criminal proceeding, especially when based on the mediation agreement.

Accused husband leaves India

I called the accused husband within next ten minutes and told him to peacefully leave the country and not to bother about the temper tantrums of the CRL. They were so much vexed by the CRL’s tantrums and his contact in police station that they almost expected police to come and stop the departure of the accused husband on the Saturday morning!  Of course, nothing so dramatic happened. He left the country by flight which left Bangalore at 1145 hours.

I sincerely hope that he does not return to India, its petty politics, social chaos, vindictive legal system, casteism, pollution for next few years!

PS: As promised the advocate who appeared in the High Court managed to obtain the certified copy by fourth day after the day of judgment. Next day, it was produced for the record of police station. The very same week end, it was also filed before the magistrate’s court, through another criminal side lawyer, a vastly superior specimen of this learned profession. The court was pleased to close the file based on the order of the High Court which had quashed the crime case. The harrowing experience ended precisely after thirty nine days.

(In the context of false case booked under Section 498A of IPC)

By

B.N.GURURAJ, Advocate

In this narration,

CL stands for Civil Lawyer of the Accused person.

CRL stands for Criminal side Lawyer of the Accused person.

OL stands for opposite side lawyer.

Order not passed in anticipatory bail application

The date on which the Sessions court was required to deliver the order on anticipatory bail application was a Saturday. In the morning I received a call from the CRL informing me that he had been hospitalized and would not be able to attend the court. I assured him that I would appear in the court as proxy counsel and inform the court. As coincidence would have it, the judge who had heard the matter the previous Monday had been transferred. In the Sessions court, there was a new judge, who had reported to duty just the previous day. Even his name was not known to the counsels or to the court staff! Of course, without hearing the matter again, there was no question of the new judge passing order on an application heard by his predecessor. Thus, the matter was adjourned by a week to allow CRL to appear and argue the matter once again before the new judge.

That evening I met the CRL. Both as a matter of courtesy to know of his health status, and also to inform him of the adjournment of the anticipatory bail application hearing. By that time, he had been discharged from the hospital. I informed him that the next date of hearing would be the coming Saturday.

It seemed to me that he was a man of low self esteem, which to some extent, accounted for his stridency, and aggressiveness with clients. He had a need to be recognized. In lieu of that he had the habit of speaking about himself and his past achievements. He spoke of great men and influential persons he knew. He showed me some judgments of past cases wherein he had appeared in serious matters such as rape case, attempt to murder and the like. In the rape case, he had proved that the victim was not a minor, based on the development of wisdom teeth. That seemed like quite a smart argument!

Then he came to the topic of fee. As of that date, we did not owe him anything. He had been paid 10K soon after filing of anticipatory bail application. He said, he had to be paid fee, but would not state what his fee was, or what was his expectation. I had seen this tendency amongst lawyers practicing on civil and criminal side. The matter of fee is kept vague so that they can periodically keep demanding fee, based on bits and pieces of work done between two fees. But, I determinedly told CRL to state his fee and I would arrange to have it paid. I also reminded that when he got bail for the husband, he had undervalued his own work, and I was fair enough to advise the client to pay more fee. On that note, I left him, still without any clue as to what further fee he expected.

Parents return from exile

Once the news of mediation agreement reached the parents-in-law, they could not stay away from Bangalore anymore. Since the complainant had committed to withdraw the case, they felt that it would be reasonably safe to return to Bangalore. Therefore, without waiting for the anticipatory bail order, which could have taken at least another eight days, the returned to Bangalore. I informed the father of the accused husband to accompany him to Family Court on Monday, as I had other professional pre-occupation.

Divorce judgment delivered

The Monday after the conclusion of mediation, the divorce petition of the accused husband came up for hearing before the Family Court Judge in the afternoon. Both the accused husband and the complainant wife were present in the court. The complainant wife confirmed that the cheque for Rs.20 lakhs issued to her towards permanent alimony had been realized and money credited to her account. Upon seeing the mediation agreement, the Judge recorded the fact that matter had been settled by mediation, and that the wife had confirmed the receipt of money. On this basis, in a short judgment, the judge ordered divorce and dissolution of marriage. The Judge specifically told the complainant that she must withdraw the criminal case. The complainant wife replied that after this court proceeding, she was proceeding to withdraw the case and she had been called at 5.00 pm. Since I was not at the court, the father called and told me of this out come and the complainant-wife’s commitment to withdraw the case.

I told him that since the matter was now before the court, any withdrawal of case has to be done only with the leave of the court. Therefore, I surmised that she must be proceeding to the magistrate court. I told that both of them should proceed to that court and wait for her arrival. After 5 O’clock, I got a call from the father of the accused, informing me that she had not turned up at the magistrate court. This situation left all of us with heightened state of anxiety. We were most anxious to see that the criminal case was concluded so that the accused husband could return to his job.

Withdrawal of criminal case flounders

We contacted the CL. After playing his usual game of being unavailable, he told me over phone that he would speak to the OL and revert to me. Next day, instead of reverting to me, he told the accused husband that the complainant wife would go to the police station and withdraw the complaint.

When I heard this, even with my limited knowledge and experience of criminal side practice, I felt that this was highly unsatisfactory. Once a matter is before the court, the court alone will have exclusive jurisdiction in that matter. Withdrawal of complaint in the police station would not be taken notice of by the court. Police would be bound to pursue the matter under the supervision of the court.

Further, I had stood a surety for the bail order. What would happen to the surety bond I had executed? How would that be cancelled, if the complaint is withdrawn in the police station? It took me two day’s persistent effort to contact the CL and drum this into his head. Then he too reluctantly realized that withdrawal of complaint in the police station would not be of any help. He promised to speak to a professional friend of his, a well known criminal side lawyer. He assured that thereafter, he would speak to the OL and revert back to me.

A day later, he reverted to me and informed me that next morning by 11.00 am, the complainant would come to the magistrate court along with her counsel. We should have the CRL ready with us for drafting and moving the application.

In the meantime, since CRL was the person looking the criminal side of the matter, I spoke to him of this matter of withdrawal of criminal case. Even before this settlement was reached in the mediation centre, I had broached this subject with him. He was of the clear opinion that once the mediation agreement and divorce judgment are produced and the complainant moves an application for withdrawing the case, she would be put in the witness box and the judge would take her deposition and the case would be closed. He gave a graphic description of the probable questions that would be put to the complainant by the magistrate.  I did not ask him under which provision of the Cr.P.C which application could be moved. I took his three decade long experience at the bar at face value and expected that it would work that way. Coupled with the fact that the APP who took money on the day when the accused husband was sent to JC also spoke that upon settlement the case would be closed, I expected that this would work.

Next morning, the accused husband and complainant wife along with her counsel were present in the magistrate’s court. But, the CRL played truant. He did not come to court at the agreed hour on the pretext that he was tied up in the Civil Court. Instead, he spoke to the wife’s lawyer over phone. CRL apparently told him that since the complaint was from the wife, their side should move the application for advancing the case and withdrawal of complaint before the magistrate. The complainant wife’s accompanying lawyer was purely a police station lawyer with very little drafting skill to speak of. So, he told the CRL that his instructions were to get the complainant to sign whatever papers he were to present. An argument ensured between the two, in which the CRL browbeat him on the basis of his seniority and experience. The other lawyer and the wife left in a huff without waiting for the CRL to turn up.

At this state, the desperate accused husband called me and requested me to come to court. When I went over there, he was waiting alone. After waiting for over an hour, CRL turned up. He came in a big huff made a show of how he had been offended by the talk of other side’s junior lawyer. To put it shortly, he was insufferable. Without even giving me a glance, he sat in the court hall and wrote out an application for advancing the case. Having done this, the man of three decades of standing at the bar, did something extraordinary and unbecoming. He went to the PP and exchanged some talk with him. Then, he went to the court’s Bench Clerk and spoke to him. Next he went to the Pending Branch’s assistant who was helpful to us in getting the release order.  All of them, according to CRL, unanimously told him that such an application for withdrawal of criminal case was not maintainable. Before the charge sheet is filed, the court cannot close the case. After the Crime Number given by the police is converted into a Crime Case based on the charge sheet, an application for closing the case could be moved, and not a day sooner.

In my book, this was the worst thing a counsel could do. Advocacy is supposed to be a learned profession. The advocate has to be knowledgeable about his field of practice. In order to keep himself updated, he must study law, reported decisions, and in absolutely essential cases, seek guidance from other experienced counsels in the field. But, going to the PP, who is going to prosecute the accused for guidance about how to get the accused discharged was the worst thing a counsel could have done. With this, I now knew that there is no end to the ignorance of the counsels, be they of three or four decades standing. After all, knowledge does not come by itself. One has to actively acquire it. A donkey of fifteen years age would still remain a donkey. With age, it does not become a horse!

With his antics, all that the CRL achieved was to get the opposite lawyer and the complainant peeved off. With their departure, any possibility of putting an end to the matter remained a distant possibility. As a parting shot, while leaving the court, the CRL said “you people were foolish to pay Rs. 20 lakhs. Now having paid so much money, you are not getting your full remedy also. You have to grin and bear it.”

Now I knew, this was what was bugging the CRL. That the accused husband had paid permanent alimony of twenty lakh rupees. The cases had to sooner than later, come to an end. That would end the prospect of dragging on a case for years together and assuring one’s self of steady inflow of fee.

Law and procedure governing closure of criminal cases

At this stage, I decided to do some study of Cr.P.C. In the Code, trials are grouped into three categories: sessions cases, warrant cases and summons cases. There is also a summary trial which does not concern us, nor does the sessions case concern us. A warrant case means any offence for which the imprisonment is more than two years. Such cases are tried more elaborately. I found that in a warrant case such as the present one under section 498A, under Section 245 of the Cr.P.C, after examining the evidence, a magistrate could discharge the accused if he were of the opinion that there was insufficient ground to proceed further with the trial. That stage would require the police to file charge sheet, evidence to be taken by the court for framing the charges and thereafter, making application for discharge of the accused. The result of such application is not an assured one, as the magistrate could also form opinion that the case has to proceed.

There was also an alternative route, available through the police. For filing the charge sheet, the police have to investigate the matter, take depositions, gather evidence, material objects and so on. After gathering all the evidence, or if any evidence fails to turn up at all, or if the police form the opinion that there is no material for filing charge sheet, they file a report known as B Report to the court. Upon receipt of the B report, the court would close the matter. But, B Report is open to challenge by the complainant. If the complainant applies to the court once again, the magistrate may take suo motu cognizance of the case and proceed further.

By this time, I had become averse to dealing with the CRL. However, since he was still the advocate on record, I had no option but to approach him once again to explore the options for closure of the case. Armed with the information I had gathered, I asked CRL to tell us how best this case could be closed. I thought that since there was a mediation agreement under which the complainant wife had agreed with withdraw the criminal case and even the divorce judgment had been delivered, it would be a fit case for asking the police to file a B Report. Complainant would not be able to challenge the B Report in the face of her own willingness withdraw the case as per mediation agreement.

CRL said, “let the accused husband come with me in the evening. I will take him to ACP. We will request him to instruct the inspector to file B report.” I did not accompany the duo. Subsequently, I learnt from the accused husband that when the CRL spoke to the ACP, he merely told him, without disclosing anything about the mediation agreement and divorce judgment, that either a B report or charge sheet had to be filed. Immediately, the ACP seems to have responded that since B report is likely to lead to complications such as challenge by the complainant, it was better to file charge sheet. He seems to have advised that once charge sheet is filed, the CRL could move his application for closure of case. The ACP advised the CRL to approach the jurisdictional inspector to expeditiously work for preparation and filing of charge sheet. Thus, the CRL with his wonderful professional competence made the accused husband work for framing charges against himself! That too, by making the accused husband pay the police inspector 10 K for quickly completing the charge sheet!

Guidance from mediation centre

To me, whole thing seemed weird as Kafkan world. The mediation agreement was a judicially enforceable document. Based on this agreement, the family court had already made an order dissolving the marriage. Therefore, the same judicially enforceable document must form the basis for closing the criminal case.

But, I had wasted enough time dealing with the CL and the CRL to know by now, that neither of them, either had the willingness or competence or knowledge to explore a judicial remedy for the impasse. I felt that the Mediation Rules framed under the Code of Civil Procedure might provide some clue. To my surprise, I found that the website of the mediation centre had not posted the text of these rules. Even the law book shops did not have the text of mediation rules, nor did they have any bigger book which contained the text of these rules. I had the fond hope that these rules would have an overriding provision, which would enable the criminal court also to close the proceeding based on the mediation agreement. Though I knew that this was impossible, as a Rule framed by the Government or the High Court cannot prevail over the provisions of Cr.P.C, which is an Act of Parliament, I definitely felt that I must explore the solution at the mediation centre itself.

So, on the Friday of that week, I went to meet the Director of the Mediation Centre, who was of the rank of District and Sessions Judge. But, he had not yet come to the office. While waiting for him, I went to the office of the mediation centre and requested them to show me the text of the Mediation Rules framed by the High Court. The staff and officers of mediation centre were quite helpful. They not only gave me a gazette copy of the rules for reading there, but also arranged my meeting with the Director, as soon as he reached the office. As I expected, the Mediation Rules did not give any direct remedy for closing criminal cases related to the divorce case settled through mediation.

When I met the Director, a man of late fifties, he heard me sympathetically. The burden of my song was that the mediation agreement provided for closure of not only the civil dispute, but also the criminal proceeding. Therefore, there must be some mechanism for closing the criminal case based on the commitment given by the complainant wife in the mediation agreement, rather than go to police for aid. He agreed with me, but pointed out the limitation of mediation: that criminal cases can be closed only in accordance with Cr.P.C. Mediation agreement recorded the party’s commitment to withdraw the complaint, thereby setting the machinery in motion for closing the proceeding. But, there was no short cut except through the provisions of Cr.P.C. By now, I knew that Cr.P.C’s remedy was a distant mirage, and would not be fast enough to save the job of the accused husband.  The director had two suggestions. One, based on the mediation agreement, and the judgment of divorce, the police could file B report, which cannot be challenged by the complainant later on as she herself had agreed to withdraw the case. Other alternative was to file a petition under Section 482 of Cr.P.C before the High Court for quashing the criminal case.

I called CRL and asked, whether we could file a petition before the High Court for quashing the complaint. I must state here that Section 482 of the Cr.P.C confers certain inherent powers on the courts, so that they may do whatever is considered necessary for securing the ends of justice. It gives sweeping powers to the courts. But, the Supreme Court has consistently held that the power under this provision is exercisable only by the High Courts and Supreme Court. When I raised the option of filing a petition under Section 482, the CRL immediately scotched exploring that possibility by saying that even if a petition were filed, it would take a month to be listed for hearing as the number of such petitions were filed in large numbers and there was only one judge to hear such cases. In the alternative, I told him to apply to the court for allowing the accused to travel abroad for a month or two. He was quite unco-operative and rejected the suggestion on the ground that application was liable to be rejected before expiry of four weeks from the date of enlargement of accused on bail.

That afternoon, there was a pleasant surprise. The Deputy Director of mediation centre called the father of the accused husband and wanted to speak to the accused. When he was told that the accused was at the police station, the Deputy Director wondered aloud, “what is he doing at the police station? Anyway, please meet me with him on Monday afternoon by 2.00 pm. We may have a remedy for your problem.” With that, he closed the call. When I learnt of this call, I was elated. My visit had not been in vain. Internally, the mediation centre officers had discussed and concluded that the issue I had raised was indeed serious enough to frame an enduring solution.

As a part of the CRL’s harebrained idea of getting the charge sheet filed, the accused husband had to take the police woman from the station to his house, where she recorded the statements of the parents in law, the accused and two neighbours. All this was very embarrassing for the family. At least, the police woman was quite civilized in going about it. Pleasantly, she also refused to take the usual money gratification for her work. Must be indeed a rare specimen amongst police!

On Monday afternoon, I took the accused husband to the mediation centre. After waiting for about five minutes, the Deputy Director saw us. His first question was “Why did you go to police for closing criminal case?” I introduced myself and candidly told him of the quality of legal advise or bad legal advise we had been getting from our counsels, and that out of desperation, we had been exploring all possible avenues, including the ignominy of taking the help of police. I informed him that knowing this to be highly unsatisfactory situation, I had approached the mediation centre on the previous Friday.  The Deputy Director spoke: “Listen, I have been a magistrate for ten years! Our hands would tied. No magistrate has the option of dismissing a case at the preliminary stage. Tell me under which provision a magistrate can close a criminal case?”  The answer to his eloquent question was of course a No. I had not found any such enabling provision for closure of a criminal case at preliminary stage. I told him that I knew of no provision under which a criminal case could be closed by a trial court. He said, “A trial magistrate has no choice but to proceed with trial once charge sheet is filed. Here, you have been working feverishly for getting the charge sheet filed!” He continued, “I was born in a police family. My dad was a Deputy Superintendent of Police. I know how the police work. The police will take your money, they will say they would file B report. Two years later, when you receive summons from the court, you will realize that they have reneged and have filed a charge sheet instead of B report. It would be too late for you to do anything else, but to go through the long trial.” The Deputy Director advised, “there is only one remedy for you. You must move a petition under Section 482 of Cr.P.C, duly supported by the mediation agreement, and judgment of divorce. If you want expeditious hearing, enclose the confirmed air ticket also. The High Court will go out of the way to provide remedy to you, especially when your case has been settled through mediation centre!” The confidence with which he spoke was infectious. He had more or less affirmed whatever my research had revealed tentatively. We thanked him profusely, told him that we would take steps to file the petition by next day itself. We left the mediation centre, feeling far lighter in heart!

How the criminal case got quashed is a story which merits another article by itself.

(In the context of false case booked under Section 498A of IPC)

By

B.N.GURURAJ, Advocate

In this narration,

CL stands for Civil Lawyer of the Accused person.

CRL stands for Criminal side Lawyer of the Accused person.

OL stands for opposite side lawyer.

PP and APP stands for public prosecutor and Assistant public prosecutor respectively.

A side show amongst counsels

On the day when the matter was posted for mediation, a side show developed. The CL has a junior lawyer, who is in his late twenties or early thirties. According to another civil lawyer friend, this person was skilled in fleecing more money from the clients, than his own senior! This collection would be in addition to the payment of fee to the CL.

On that day, he talked to the OL for a few minutes and returned to me to inform, “sir, that OL is money-minded! I can make out that if right sum is offered to him, he will prevail upon the complainant to accept settlement for fifteen lakhs. It may be necessary to pay him another fifty thousand.” I told this junior “fifteen lakh rupees is quite a generous offer. None from the other side should be unhappy to accept it. If the OL can prevail upon his client to accept it, we don’t mind compensating OL.” For good measure I added “and you too!”

The junior lawyer huddled into conference with the OL. He returned about fifteen minutes later and confirmed that we would have to through the motion of mediation and he would persuade his client to accept the offer of fifteen lakhs.  As readers would recall, the last demand of the complainant wife was Rs.30 lakhs. The gap between our offer and their demand was far too wide to be bridged. However, with this work done through the second channel, I felt that negotiation before the mediator would be concluded on Monday.

Meeting the PP of sessions court

Next day, late evening the CRL called me and complained at length about his not getting paid for filing of anticipatory bail application. He also made much show about my not joining him to meet the PP in the Sessions Court. “It is now too late in the day to do so. You should have approached me much earlier.” By now, I had realized that this was his usual style of talking, always blaming the client for real or imaginary faults. This was to get worse, with every passing day. I asked him, “could we meet the PP on Friday?” He pompously replied that he was busy on Friday and had to appear in several courts including High Court. I persisted, “Can I come to High Court around 1 O’clock and pick you up?” He agreed with much reluctance: “alright, you present yourself at High Court by 1 O’clock. During the recess period of one hour between 1.30 pm and 2.30 pm, we will go to sessions court from High Court and try to meet the PP.”

I found the CRL near the court hall of High Court where criminal petitions were heard. The court hall was too crowded. CRL’s matter was 60^th in the cause list. At that time, 31^st matter was being heard. So, the CRL took me to the next court hall, which was vacant. As soon as we sat there, the first task I did was to pay him another 10K. I told him, “On the day you filed the Cmisc petition, I was not carrying sufficient money. Here is part of your fee.” He beamed broadly and took the money. Thereafter, he was very cordial. Thus, I found that his grumpiness was on account of not getting paid then and there!

We waited till about 1.20 pm. The cause list stopped at 44^th matter. Therefore, CRL felt that we could safely go to sessions court which was about one kilometer away, in my car, and return in time for the afternoon session of the High Court. We left for the Sessions Court. When we reached there, we found the PP still in the court hall. The court would raise for recess at 2.00 pm. We patiently waited. CRL told me to keep a thousand rupee note ready and handy, which I did.

When the PP came out of the court and entered his chamber next door to the court hall, we also followed him and occupied the visitor’s chairs before him.  He gave us an interrogative look. The CRL told him “On Monday, a Cmisc is coming up for anticipatory bail.” He paused at this stage and told me to handover thousand rupees to PP, which I did. The PP pocketed it without even a glance at me and without any break in the conversation with the CRL! PP asked the petitioner’s name, name of police station. He located the petition copy served on him. CRL requested him, “the court has agreed to hear arguments on Monday itself, if you can file objections on Monday”. The PP agreed to do so. CRL further requested PP to make a note of the Cmisc number. The PP airily replied, “don’t worry. Once you have told me, I will take care of it!”. With that, we were dismissed and returned to the High Court in another fifteen minutes. I dropped the CRL at the High Court and returned to my office. Before parting, the CRL told me to be present at the Sessions Court on Monday by 1.00 pm itself.

Sessions hearing and drama at mediation centre

On Monday morning, I kept on trying for the CL. But as usual, he was inaccessible. Since CRL wanted me to be present at the Sessions Court for argument of anticipatory bail application, I could not also be present at the mediation centre on Monday, which was also fixed at 3.00 pm. Eventually, when I managed to get him on the phone at 1.00 pm, I requested him to appear for the mediation, as I would be away at the Sessions Court. But, the CL refused to continue the conversation on the ground that he was in the middle of some discussion or argument! The lack of commitment for the client’s cause was absolutely shocking. After an hour, he called and told me that his junior would accompany the accused husband at the mediation centre. Knowing his proficiency and abilities, I knew that until I returned to the mediation centre, the accused husband would be a lone lamb amongst wolves. This junior was too dumb to contribute meaningfully to the mediation process.

I waited for the CRL at sessions court. He turned up at around 1.30 pm. He was coming from some other court. I did some running around with him, as he did some follow up on an execution petition filed by him saw some of the dungeons of the court complex which passed for the offices of the courts. In the meantime, a young man approached the CRL with a request to file anticipatory bail application on behalf of some persons, who were facing recovery proceedings from a bank. Apparently, the debt had been decreed by the Debt Recovery Tribunal. For failing to comply with recovery notice, they must have been facing the threat of criminal proceedings. The CRL heard him for a couple of minutes and told him, “Yours is not a case where an FIR has been filed. Therefore, you cannot approach the Sessions court for anticipatory bail. Go and request the branch manager for some time”. With that, he dismissed that prospective client.

We sat in my car, which was parked in a tree shade and shared the lunch I had brought. By 2.40 pm, we returned to the court hall. Within about ten minutes after three, our matter was called. The PP promptly said “I am filing objections!”. He handed over a copy of statement of objections to the court clerk and did nothing more. The judge heard the CRL’s arguments. Sum and substance of the argument was that the complaint under Section 498A had been filed during the pendency of petition for divorce for over year and a quarter. The complaint was retaliation for this divorce petition. That the complaint was false, as the husband was not present in India to make demands, nor did the complainant wife lived in her matrimonial home for over year and a half. The complaint was based on improbabilities and stale facts. The CRL also took the judge through case laws he relied on, especially a constitutional bench decision in a 1980s case, wherein, the Court had set rather liberal guidelines for granting anticipatory bail. The judge impassively heard the arguments. After hearing the arguments, the judge cryptically said, “for orders on next Monday”.

I had no experience in the Sessions Court. Just as the magistrate had dictated the bail order in the open court immediately after the argument, I expected the Sessions Judge to do so upon conclusion of the arguments. This meant that the parents in law would have to remain in exile for at least another ten days, assuming that the order would be pronounced on next Monday granting anticipatory bail, and we would be able to get certified copy of the order, the next day. I was dejected. The CRL and another elderly advocate explained to me, “Even the courts are worried about being attributed oblique motive, if they pronounce the order immediately. Hence, the delay.”

With that, we left the court complex. The CRL had to return to his office-cum-home. He wanted me to drop him at my place, from where he could go by autorickshaw.  On the way back, I explained to CRL the anxieties of the parents-in-law, the fact that the accused husband’s sister was in the family way, how, because of threat of harassment by the police, the family had splintered and dispersed. The CRL’s response was typical of a lawyer who cared about his case and fee. “What can be done? The case will proceed and your people would have to attend the court regularly!” I told him caustically, “As a counsel, it is easy for you and me to expect litigants to regularly attend court. You must appreciate the client’s concern. None would want to come to the criminal courts, stand amidst criminals, pimps and prostitutes and stand in the box of the accused. None would want to go to court as a litigant, and as a patient to a hospital!” That must have hit the target. He kept quite thereafter.

Having come so near he stepped into my office, saw my library, met my chamber colleague, shared a cup of tea and then left. Thereafter, I called the accused husband, who must have been facing heavy artillery in the mediation centre. When he spoke, the desperation and anxiety were evident in his voice. He told me, “It is better if you come. These people are playing acting all kinds of drama.”  With that message, I left for the family court complex, which also housed the mediation centre.

In the mediation centre, which occupied the ground floor of the court complex, there are nearly a dozen mediation rooms. I located the room where our case was in progress. The mediator was a handsome man in his early forties. I stepped in and introduced myself as the accused husband’s relative and told him that since his parents were away, I wanted to accompany him. The CL’s crafty junior was sitting next to the accused husband.

The mediator explained to me that the complainant wife had been demanding Rs.30 lakhs as permanent alimony. Whereas, the husband had offered Rs.17.5 lakhs. I was bewildered. According to my last information, the offer was Rs.15 lakhs. According to the assurance of the CL’s junior, the opposite side was expected to accept this offer. I raised this question. Then, the junior explained to me. Apparently, the CL, in a bid to settle the matter had unilaterally offered Rs.17.5 lakhs, with the confidence that he could persuade the accused husband to pay the sum! To me this seemed rank recklessness.

I told the mediator, “according to our information on the previous occasion, we had been told that the opposite side would accept our offer of 15 lakhs, which is now hiked to 17.5 lakhs. If the gap was known to be as wide as another 15 lakhs, we would not even have considered mediation. There is just no way can the accused husband manage to meet that kind of demand. Even to pay Rs.15 lakhs, he still has to borrow another four lakhs”. I drew his attention to the statement of affairs drawn up by the accused husband.

At this, the plump woman lawyer, the wife of OL jumped to her feet, “You are making allegations against us! We have never agreed to 15 lakhs or 17.5 lakhs. You are trying to bring between us and the party!” I bluntly told her “Think whatever you like. The fact remains that on the previous occasion, your side clearly indicated that it was possible to settle the matter for 15 lakhs. I am not changing my statement”. At this stage, the CL’s junior squirmed in his seat, fearing that I might reveal his little conversation.

The woman lawyer told the mediator contemptuously, “He is after all a relative. He has no business to interfere!” I told her, “Mediation is meant for parties and family members. It is not meant for lawyers”. I was in counsel’s dress at that time.

The mediator, quite an affable man, helped clam the tempers. At this stage, the complainant wife opened her mouth and revealed the degree of her greed. “If these people have no money to pay, let write their house in my name!” I was astounded to hear this. Since I did not want to escalate the tempers by saying something sharp, I told the mediator, “This is a reckless demand. The house the accused lives in belongs to his mother. Accused husband does not own any movable property or immovable property. Other side cannot make this kind of baseless demand.” The wife muttered something about the family being boastful about their wealth and living beyond their means. I told the mediator that such baseless and wild assertions cannot be taken into consideration for settling the dispute between the parties.

The complainant wife once again started the melodrama about joining the marital home, that she wanted to lead peaceful life with husband. But, she did not want to live with her in laws as she feared for her life. She wanted her husband to set up separate family. I firmly told the mediator that living together again was not at all an option, not after the humiliation faced by the family at the hands of the complainant wife by being arrested and sent to jail. If that was the main demand, this mediation would serve no purpose at all. I wondered how this educated wife did not appreciate her own contradictions. On the date of arrest, she told the police inspector to let off her in-laws and arrest the husband, as though she thought that the in-laws were angels and the husband a demon. Now, she was willing to live with this diabolical husband, but feared for life if she had to live under the same roof with the in-laws! But, then for someone whose judgment and intelligence are clouded by greed, logic is highly inconvenient.

I told the mediator and the other side lawyer, “At present, the husband is not earning any money. If the matter is delayed, his savings would also dwindle and there would be no significant money left for paying permanent alimony. No court can award alimony which is beyond the means of the petitioner in a divorce case.”

The complainant wife again asserted stridently, “I too have to look after my handicapped father. I do not have a project now. I am on the Bench. What should I do for future, if I accept their paltry offer? I cannot accept anything less than Rs. 30 lakhs!”. It was evident that she wanted this opportunity to solve all her life’s problems forever, a mercenary approach if there was ever one.

The mediator explained to the accused husband that he will consider the matter once again on Thursday, and in the meantime, both parties could find a meeting ground. He advised the accused husband that if he could conclude the matter by settlement, he could return to his job within next couple of weeks, as the conclusion of civil case would also mean that criminal proceeding can also be closed. That would be a part of mediation agreement.  On that note, we left the mediation centre.

The accused husband was feeling very depressed. The adamancy displayed by the opposite side worried me too. If the demand remains beyond the means of the husband, there can be no conclusion of civil and criminal proceedings within four weeks. That would mean loss of job for the husband. How long can a person live on savings, and meet the expenses of litigation in two courts? Unfortunately, even his parents were not at hand to console him. They had to remain in exile until the anticipatory bail order was obtained.

Husband ready to throw in towel

That night and next day, we discussed the situation at home. The husband was feeling desperate to save his job. He blurted, “I am ready to borrow from my friends abroad. I can repay them within a few months, when I return to the job. I am prepared to pay 25 lakh rupees”. Since he had already booked his return journey to England, travel would not be a problem, even after he paid this king’s ransom. But, he would be left with no money at all, not to speak of his family. But, his reasoning was, it was better to sacrifice the savings, rather than job. Savings could be built up, but job could not be found so readily.

That decided, we contracted the CL. After playing the usual elusive game, he spoke to us. He said, ‘You need not pay 25 lakh rupees. I will speak to the OL and settle the matter at Rs. 20 lakhs.” He sounded very confident.

Matter settled at mediation centre

On Thursday morning, the CL called me and told me that he had spoken to CL and told him “I am telling my client to make a final offer of Rs.20 lakhs. If your client does not accept it, you may do whatever you like. I will not participate in the negotiation.” I wondered what kind of ultimatum was this. If he did not participate in the mediation, it would be no skin off the nose of the opposite side! We would be constrained to take help of another counsel or plunge further on our own. The CL continued, “This threat has worked! OL called me a short while back, and has confirmed that his client has accepted the final offer of Rs.20 lakhs”. At last, there seemed to be some light at the end of the tunnel. I informed the accused husband about this development. He was smarter. Anticipating such development, he had already mobilized money, and transferred money from his foreign account to Indian account. He said, he could issue a crossed cheque for that sum!

In the afternoon, well before 3.00 pm, I was present at the mediation centre along with accused husband. I saw the notice board and noted that our mediation case was listed. A little while later, the complainant wife and her relations turned up as also their counsels. As usual, our CL did not turn up. Though it was 3 O’clock, even the mediator had not yet appeared. I contacted the CL. He told me “I am at Revenue Court. I will come in another twenty minutes. That time passed. I called him again. But he was inaccessible. In the meantime, the mediator appeared. Both sides went to him. I told him that our counsel would be slightly delayed, but would surely come. We waited upto 4 O’clock and there was no sign of CL. I began to wonder whether this would result in slip between the cup and the lip on account of the counsel playing truant.

The mediator, sensing my anxiety told us that we could finalise the details of settlement and commence drafting the mediation agreement-cum-petition which would be presented to the family court. It had to be signed by both the parties and their counsels. Once the details of settlement were known, he could dictate the document so as to save time. We agreed to this sensible suggestion and met in a mediation room.

We were in agreement that the husband would pay the permanent alimony in full and final settlement of all claims and neither side would stake any claim against the other in future; that they would not interfere with each other in future; that divorce would be by consent of the party; that the criminal case commenced against the husband would be withdrawn. The other side added one more element “petitioner husband must withdraw all the allegations made in the divorce petition”. After conferring with the accused husband, I told the mediator that we had no dispute about withdrawing the allegations in the petition. Next, the other side wanted the money partly in cash. This I flatly refused. I firmly told that the cheque number, bank name, amount, and date must appear in the mediation agreement for the entire sum. Further, we did not want to run the risk of drawing and transporting cash. The other side did not persist with this demand. Next, there was some discrepancy in the name of complainant wife in the petition and in her bank account. It was agreed that mediation agreement would record the name in which the cheque was issued as abundant measure of caution. The accused husband wrote out the cheque for Rs.20 lakhs and gave it to the mediator.

Before leaving the mediation room, he mediator asked the complainant wife, whether she was satisfied with the settlement. He reasonably expected that at least out of politeness he would get a positive answer. But, her answer was a firm NO!

We again retired to our corners of the boxing room called mediation centre. At this stage, the CL made his grand entrance. We were waiting in the porch of the mediation centre in that rainy late afternoon. I took him to waiting room and explained the terms of settlement. Then I took him to mediator who was in a secretary’s room, dictating the mediation petition – cum – agreement. Short while later, after the draft was ready, we met again in the mediation room. Both sides read the draft checking each detail carefully. Thereafter, lawyers of both sides as well as the husband and wife signed the mediation agreement.

I asked how the criminal case would be solved. The mediator and the OL told us that soon after the divorce judgment, the complainant wife would appear in the magistrate court and withdraw the criminal petition. I looked for confirmation from the CL. He also agreed that this was possible. Since I was not certain of the procedure for withdrawing the case in a cognizable offence, I deferred to his wisdom.  This was soon to become a major problem

The mediator gave it to the centre staff to affix seals, made copies and give one copy to each party. He called for the court’s case file, and wrote an order directing the matter to be placed before the Family Court on next Monday, for passing the judgment of divorce.

On that note, we left the court complex, feeling satisfied that at least the civil side of the crisis was about to get settled.

(In the context of false case booked under Section 498A of IPC)

By

B.N.GURURAJ, Advocate

In this narration,

CL stands for Civil Lawyer of the Accused person.

CRL stands for Criminal side Lawyer of the Accused person.

OL stands for opposite side lawyer.

PP and APP stands for public prosecutor and Assistant public prosecutor respectively.

Petition for anticipator bail for patents

Having got the accused husband out of Jail, the next urgent task was to obtain anticipatory bail for the parents-in-law. On the Monday following the release of accused husband, the CRL and I worked at fevered pitch and filed a Criminal Miscellaneous Petition praying for anticipatory bail. For this purpose, the previous Saturday, I had spent almost entire day in the magistrate’s court trying to obtain a certified copy of the FIR, accompanying complaint and Bail order. I managed to get it by early evening that Saturday. This was enclosed along with copy of divorce petition already pending before the family court. The CRL knew the ropes. He, as usual, drafted the petition in the typing pool, got photocopies made, got the application and enclosures stitched and filed it in the filing counter of the court. Then he went to the section in charge of office which allocated the matters to different court halls as directed by the Principal City Civil and Sessions Judge. Tipping her with fifty buck note, he requested that matter must come up before particular court hall. This was at 1 O’clock. We waited until 3 O’clock. We went to that office and got the petition number and also found that our matter had been allotted to Fast Trace Court 7, which apparently had a reasonable judge.

Eventually, the petition copy arrived at the court through court peon and was called. After seeing that it was for anticipatory bail, the judge ordered the matter to be listed next Sunday for considering the objections of the PP. The CRL pleaded for shorter date. But, the judge helplessly told him “every day, even calling out matters and giving next date takes entire fore noon. Where is time for hearing the matter? This matter cannot be heard before next Monday. Anyway, I can assure you that I shall hear the matter, if the objections have been filed by that date.

That was a loud hint to us to ensure that we persuade the PP to file his statement of objections on or before next Monday. We deferred this task by about four days, as the PP might forget the matter by that date.

Civil side of the case

This narration actually started from the middle of the story. The disputed started about year and a half after marriage when the accused husband complained to his parents that he cannot any longer live with the complainant-wife as the marriage has not been consummated, among many other discords between them. In the meantime, the accused husband was sent to USA by his employer. His wife visited him during this period, of course, at husband’s expense. Thereafter, the accused husband firmly made up his mind to file a divorce petition. For this purpose, a few months later, he visited India, engaged the CL and filed the petition before the Family Court, housed in a rather pompously named court complex known as “Temple of Justice” in Kannada.

Next year and a quarter was spent in the family court, trying to serve the process on the complainant wife. Eventually this was done, a counsel came on record, but no statement of objections was filed. At this juncture, one fine day, the learned Judge noted that the petitioner was not appearing before the court and directed that by next date, if the petitioner did not appear before the court, the divorce petition would be dismissed. It is under this circumstance that the accused husband visited India with fifteen days leave, solely for the purpose of participating in the proceeding. He had been assured by the CL that he would see to it that his evidence and cross examination were completed before this period.  However, fate and the complainant wife willed otherwise. By the 9^th day of his arrival, a false case of harassment for dowry was foisted not only on the husband but also on the parents-in-law. Rest of the story is already known to the readers.

String of adjournments leading to Mediation Centre

The Monday after the release of the accused-husband on bail, the matter came up for hearing. Prior to the false complaint, on two dates, the matter had come up before the Family Court. The complainant wife had skillfully avoided appearing before the court. On this Monday, in the forenoon, the complainant wife along with string of relatives and a clutch of OLs appeared in the court. However, as coincidence would have it, the regular judge was not available. Hence, the matter would be taken up by the in-charge judge in the afternoon, by 3.00 pm. When the accused-husband was ready before the court, the wife had, thorough her OL send a medical certificate, pleading sickness! Thus, the matter got adjourned to the Wednesday. This became a highly worrisome matter for the husband, who had been left with only another four days of leave to return to England.

It must be mentioned here that during the whole period between the period of arrest and this proceeding before the family court, the CL was inaccessible over mobile phone. However, his junior could reach him without fail. He skillfully kept himself out of our way. Even the issue of grant of bail had to be communicated to him after persistent effort. Between Monday and this Wednesday, all of us felt so depressed and desperate that we even considered changing the counsel. But, we could not think of another counsel who too would not play this hide and seek with the client. On this Wednesday morning, I accompanied the accused husband. In an angry mood, I had drafted a detailed affidavit, narrating the happenings of last four days, mainly pointing out that by trying to force a settlement through the police station, the complainant had interfered with the administration of justice, which was an act of contempt of court. This was sworn before notary and kept ready for filing before the Family Court if need be. However, as we were waiting for the court to start, first we learnt that the judge was not available, and the matters would come up before the in-charge judge who sat in the next court hall.

In order to ensure that the OL did not take another date from the Bench Clerk, I tipped him before hand and told him that the matter should not be adjourned but be placed before the judge. Having taken money, he did this. In the meantime, the OL approached me and asked what did we intend to do. He was the husband of the plump woman lawyer who did the extortionist talk in the police station. In the course of talk he as much as admitted that in most of these divorce cases, the fault lie with the girls, and hastily added that his comment was not on this particular case! In lighter mood, I told him to say this in the witness box! OL also blurted out that in some cases, he had settled the permanent alimony for as low as Rs.6.75 lakhs, and in another case, for Rs.10 lakhs, but in this case, the complainant wife was demanding far higher sum. However, as the events turned out, the CL and I did not capitalize on this piece of information.

At this stage, CL called and wanted to know what was happening. I told him that he must come to court and try to settle the dispute, as time available to the accused husband was not sufficient to protract the litigation. With considerable reluctance, he agreed, only after talking to the OL who was also willing to discuss. Some twenty minutes later, CL reached the family court. He asked accused husband, in case settlement were possible, what was the maximum sum of permanent alimony he could afford to pay. The husband candidly told him that he could afford to pay Rs.15 lakhs. This turned out to be a mistake.

When the matter was eventually called by the in-charge judge, both the accused husband and complainant wife were present in the court. Their counsels told that the parties wanted to settle the matter by mediation. Hence, the court directed the matter to be listed for mediation on the next Monday, to be reported to the court, latest after another 45 days.

CL told us that even for mediation, it was necessary for the parties to agree on a sum of permanent alimony. The mediators would provide legal frame work for settlement, but would not be in a position to impose any particular figure as permanent alimony on the parties. Therefore, if all of us discussed and agreed on a sum, it was possible for the mediation to be concluded on the very first day. This seemed like quite an optimistic situation.

We, i.e., OL, CL and I along with OL’s wife, found a quite corner in the mediation centre waiting room and discussed how best the matter could be settled. The OL’s wife shocked us by stating that the complainant wife wanted Rs.50 lakhs as permanent alimony and she would not accept even 5 paise less!

For all his reluctance to come to the court, the CL spoke quite skillfully, but for the mistake of straight away offering Rs.15 lakhs as permanent alimony. I thought that he ought to have started with 9 lakhs or 10 lakhs and yielded little by little to lead up to 15 lakh rupees. But, the arrow had been short and could not be retracted now.  CL told the OL “It is not that we are unwilling to pay more. It is simply that your kind of demand is beyond the means available to the husband.”. OL’s wife said, “We know what kind of salary these engineers receive abroad. We believe that he is worth 5 to 6 crore rupees. Therefore our demand is reasonable!”

CL explained to her the impossibility of saving that kind of money within about two years that the husband had spent abroad. The accused husband had prepared a statement of affairs showing total receipts during the two years, his expenses, his savings, investments, and sums paid to and spent for the complainant wife. CL pointed out that even to offer Rs.15 lakhs, the husband would have to borrow another Rs.4 lakhs.

The OL’s wife went way to confer with the complainant wife and her mother. She returned few minutes later and said that the wife was willing to accept Rs.35 lakhs, and not a rupee less! Of course, paying such ransom was out of question for the reason that the husband simply did not have the means to pay. He also did not have any immovable or movable property in his name. Even the house was in his mother’s name. These facts of life were placed before the OL. Thus, more or less, the talk broke down. As we were walking out of the court complex, the OL approached with a last demand of Rs.30 lakhs.  Since even this was unaffordable, we at least agreed that we should not shut out the matter and keep our options till the day of mediation, which was next Monday. On that note, we parted company.

Nuisance of weekly attendance at police station

The bail order of the court required the accused husband to appear before the police inspector and sign attendance every Sunday. CRL told us to purchase a 200 page note book and accompany him on the first Sunday to meet the ACP, which the accused husband did dutifully. By fortuitous coincidence, the ACP was not available. Therefore, both of them met the inspector. The book was given to the police inspector writing down the case number, name of the accused, and date of bail order. Thus, the accused had to purchase his own attendance book. The police department, enjoined with the duty of keeping attendance could not afford to maintain a register in a police station!

The consequence of failure to mark attendance was that the bail order would be cancelled, and the accused sent back to prison and JC. That was a prospect none of us could even dream of facing. Therefore, throughout the period, the accused husband diligently went to the police station every Sunday and marked attendance.

Accused husband’s efforts to save his job

Now, it was clear that there was no way the accused husband could return to his job. With a criminal case hanging over his head like a democlean sword, requiring his presence in the city indefinitely, the option of returning to England was absent. I thought that he could go to England and wind up his affairs and return to fight this matter out. Even to do this, the weekly attendance at the police station came in the way. He could not have travelled to England and returned to India within a span of six days between two Sundays, after concluding his affairs at England.

I spoke to CRL and explained the problem. I asked him to file an application before the magistrate praying for modification of the condition of weekly attendance. Alternatively, dispense with this condition for one week, so that the accused husband could stay in England for two weeks and conclude his affairs, bring back his savings.

CRL’s suggestion was incredible to say the least. He said, “I will take you to the ACP. He will adjust. He will allow the accused to mark attendance for next couple of weeks. During that period, your man can travel and return”. I told him, “look, the passport will have exit and entry date stamps. If he marks attendance for a date on which he is out of the country as per his own passport, he would be caught like a sitting duck!” The CRL’s reply was “who is going to check that? If you want your man to go abroad, you have to take risk!” According to him before efflux of at least four weeks, the court will not consider modification of bail conditions. Period. So much for the wisdom and smartness of a criminal side lawyer who has to defend his client.

However, the accused husband was made of stronger stuff. He did not consider the option of losing the job at all. Instead, he wrote to his employer placing all the cards on the table. He explained by e-mail that he had been trapped in a criminal case based on false complaint. He stated that he reasonably expected that further four week’s time would be sufficient for him to conclude both the matrimonial and criminal case and return to this job. He had about three week’s leave to his credit. The fourth week would have been leave without pay.

The firm he worked for was gracious enough to appreciate the tough predicament faced by their employee. Tentatively, they approved his leave absence, subject to final approval by the managing partner.  Thus, the problem of saving the job had been postponed by four weeks. He could concentrate on the cases on hand to liberate himself. Within next few days, his leave of absence was confirmed. That worry was out of the way.

(In the context of false case booked under Section 498A of IPC)

By

B.N.GURURAJ, Advocate

This paper is the sequel to the blog I have written about abuse of Section 498A of IPC, which was originally intended to put the scare of God into the husband and In-laws who harassed the daughters-in-law and their maternal family for dowry and other demands. What this provision has come down to in the hands of unscrupulous married women, wily lawyers and corrupt policemen, I have given a fairly detailed account in that blog. Now, you must know how the matters are complicated by the lawyers who connive with complainant in filing false complaint, not to speak of callous attitude and ineptness of the lawyers who have to defend the accused. I shall give blow by blow account of specific scenes. In this narration,

CL stands for Civil Lawyer of the Accused person.

CRL stands for Criminal side Lawyer of the Accused person.

OL stands for opposite side lawyer.

Day of arrest

Typically, the police sent for the parents of the husband and kept them in the police station. The parents were told to get their son to the police station. The implicit message was that they would not be allowed to go home until the son reported to the station.

As an instinctive reaction, the near relations of the husband and parents contacted the CL for guidance in the matter, a person with over four decades standing in the profession. He said he would send the CRL to the police station, though it would take some time for the CRL to reach.

At around 7.00 pm, the son reached the police station. Even by 7.30 pm CRL did not reach the police station. Frantic relatives contacted CL and asked him where is the CRL. Then the CL casually said that I will call him over the phone!

In the meantime, a plump woman lawyer in mufti, with a mobile phone stuck to her ears was strutting around in the police station. A little later, the complainant wife joined her. They were seated in the chamber of the woman police inspector. Then the parents and husband were summoned. The woman lawyer asked “What is the figure you have in mind?”. The husband was baffled not knowing what figure he should think of. I was summoned into the chamber as the near relative of the accused persons. The lawyer spoke again impatiently, “name a figure, the matter will be settled”. Thereafter, some blame game ensued. Again the woman lawyer spoke “decide quickly. No one has time!” as though she were about to catch a flight. All the time, the police inspector paid little attention to the goings on and went busily about her work. Suddenly she barked: “Are you through or not? If not I will arrest these persons!”. I told the woman lawyer “You cannot use police station to force a settlement. This is a civil matter to be decided by the family court, where the divorce petition is pending.” “That is different, this is different. If he does not agree to settle, he will be arrested.” The husband refused to yield. The woman police inspector asked “Who should I arrest”. The complainant wife magnanimously said “don’t arrest my in-laws, but arrest this husband!”. Within next few minutes, the Police Inspector completed the arrest formalities. An arrest memo was given to me within few minutes informing me that the husband had been arrested under Section 498A (dowry harassment), 506 (criminal intimidation) read with Section 34 (common intention) and Section 4 of Dowry Prohibition Act. For good measure, this memo stated that since it was too late to produce the accused before the magistrate, the accused would be produced in the court next day. That meant that the husband would spend the night in some police station.

At this stage, which was around 8.00 pm, there was commotion outside the police inspector’s chamber. “How can you arrest a person on the basis of bare complaint? What statements have you taken? Where is the investigation?” That was the CRL, a plump middle aged man in late fifties, barged into the Police Inspector’s chamber and questioned how could she arrest the husband without investigation. The police inspector screamed back hysterically “we don’t care! As soon as we receive a complaint, we are bound to take steps to arrest!” CRL shouted back, “I know your Commissioner. I shall report the matter to him by next evening. I have contact with media. I will expose your malpractices. We will tell court how casually you have acted without investigation, based on stale facts. You will be chastasised (sic) by the courts!”

Amidst this commotion, I introduced myself to the CRL and told him that I was related to the arrested person and also a practicing lawyer. CRL gave me a cavalier look and told me “you people don’t know law! You should not have come here without a lawyer. Now, see what has happened.” I told him rather humbly, “look, we had called CL. He was supposed to have called you at 6.30 pm. But, he called you only after 7.30. In the meantime, the accused persons had no choice but to come here”. “Oh, that CL! What does he know about criminal law!”  He asked me to join him to go to next building, where the ACP, the boss of this station would sit. Unfortunately, he was not available. CRL called him over phone and told him of the arrest without investigation. The ACP took some to revert back, with the predictable answer that if we had contacted him before arrest, he could have done something. Now, he was helpless.

Since the station was an all women’s police station, keeping a male prisoner would offend the modesty of police women. Hence, the arrested husband was shifted to another nearby police station, who refused to take him in on jurisdictional ground. Finally, he was taken to another police station. The husband was subjected to a thorough search. All the valuables were collected and given back to the parents who had chased him to this destination station. Parents were told that they could supply some food to the accused, who was to spend the night, until taken back to the all women’s police station.

In the meantime, I spoke to CL and told him of what had happened. He took it very casually. “These things will happen. It can’t be helped. What will the police do? They are not going to kill him! Your person has also made mistakes. He should not have come to India. He should have abandoned the divorce petition and stayed abroad!” These were the words from the very lawyer, who wanted the accused husband to present himself before the family court, so that evidence and cross-examination could be completed! He did not think that he as the counsel with four decades of experience, had a duty to anticipate such developments and advise the client suitably. It gradually emerged that the CL was clueless about criminal proceedings. He told me “Let the CRL handle the bail matter tomorrow. Tomorrow morning, go to my office, collect a copy of divorce petition along with enclosures and give it to CRL. He will need it for moving bail application.”  With that piece of advise, all of us, rather dejectedly, retired for the night, leaving the accused husband to brave it out in the police station along with street thugs, and petty thieves. In the meantime, I had called the CRL and requested him to handle the matter of getting bail for the accused husband. He told me to bring copies of house property deed so as to give surety to the accused, as a condition of bail.

Bail application moved

Next morning, after collecting the divorce petition copy from CL’s office, I waited for CRL at the City Civil Court which also houses the Sessions Courts. CRL had given me clear instructions to contact him after 11 O’clock, which I dutifully did. He told me to join him in the court library, where he was doing case law research. In the meantime, I had found Suresh Nanda case, which had held that except the passport authorities, none, including the courts could seize the passport. I was very anxious that under any circumstance, the husband must not be deprived of his passport, which was indeed passport to his job and freedom.  I gave this decision copy to CRL. He was apparently unaware of this decision. He condescended to accept the decision from and told me to locate the citation in the Criminal Law Journal, which I dutifully did. After selecting some decisions, CRL gave it to the library attendant, and told him to get two photocopies each, for which I paid.

We next went to the typing pool. CRL selected a typist with computer and commenced dictation of bail application. The CRL did a fairly articulate and competent job of dictating the bail application, got it printed. I paid the typist. Next we got the application photocopied, for service of one copy to the Assistant Public Prosecutor, without the enclosure of divorce petition. Thereafter, we went out to a lean-to shelter, where a middle aged person sat whose sole job was to stitch the applications, plaints, and petitions for advocates. He expertly did a tidy job and charged a modest sum of Rs.30 for that. Then the CRL asked me whether I would mind walking with him to the magistrates’ court which was about a kilometer away. I did not mind, and we walked together.

In the meantime, the anxious parents, who had spent sleepless night had come to magistrate court complex with photocopies of property documents. The house property was in the mother’s name, who was willing to give surety for bail. In the morning, these people along with their son-in-law had gone to the police station to ensure that the accused husband was provided some breakfast and was reasonably comfortable in the station. By that time, he had been brought back to the all-women’s’ police station.

Now, the CRL saw the photocopies of property documents and asked “where are the originals?” Of course, he hadn’t told that originals were required and these had not been brought. The father rushed back to his house to fetch these originals. The CRL went to the typing pool again and dictated a surety affidavit on behalf of mother declaring willingness to stand as surety for the accused husband. By this time, it was 1.00 p.m., and the father returned with original documents. We got these photocopies, and got the copies and affidavit notarized and were now ready to file the bail application in the court as soon as the accused husband was produced in before the magistrate.  But, there was another important detail to be attended. That was about the Assistant Public Prosecutor.

In any criminal proceeding where the State is the complainant, it is represented by the public prosecutor, or assistant public prosecutor. In matters where the offences are bailable, bail is granted as a matter of routine subject to the accused giving personal bond and surety, or security. In non-bailable offences, such as the one under Section 498A, section 437 of the Cr.P.C provides that no court shall grant bail unless the PP has the opportunity to oppose the bail application. Therefore, we had to request the APP in this court to file his objections on the same day, so that the magistrate could consider the objections and release the accused husband on bail. We went to the APP’s office, armed with couple of notes of one thousand.

When the CRL asked the APP for this favour, he, an aging, balding and slimy character proclaimed his uncompromising sterling character: “I have never done it for any one, nor will I do it now!” The persistent requests from me and CRL fell on deaf ears. “How can I do that now, when I have not filed objections on the same day for any other case?” He added, “I don’t want money. My children are earning well. You come and sit in PP’s chair for a day. You will know the heat!”

We came out of his office. The CRL asked some court staff for solution. He was advised: go to so and so, who is an office bearer of advocates’ association. If he puts in a word, APP will definitely agree.  The CRL and I went in search of this office bearer. After searching through dozen court halls and the association lounge, we located him. He was of course willing to help and accompanied us to the APP’s office. He told the APP, “Look, two senior counsels are here with a request for small favour. You need not do anything out of the way. Just file the objections today itself”. The APP objected, “you should know, in your own case where a CA was the accused, I did not do it, he went to Judicial Custody for a day. How can you ask me to do it now?”. The office bearer said, “That’s alright. What you did to me is different. Now oblige them!”. He discreetly told us to slip the APP three thousand rupee notes. The APP vehemently protested, but nevertheless accepted the money!

This done, the CRL and I went to the court’s bench clerk though whom the bail application and surety affidavit would be placed before the court. We tipped him suitably and told him of our anxiety to obtain bail on the same day. He rather airily replied, “Don’t you know the practice of this magistrate? None is granted bail on the same day in non-bailable offences. At least for one day, the accused will be sent to JC (judicial custody). Even if the APP files objections, this magistrate won’t consider it the same day.  Cases under Section 498A are explosive. If the court hastily grants bail, even the court fears that it might be accused of leaning in favour of the accused!”  With that, my heart sank. The accused husband was destined to spend a night and next day in the hell called Parappana Agrahara Central Jail. I gave the bad news to the parents and the accused, who had, by now been brought to the court. I think, I merely added to their misery by announcing this.

In the meantime, CRL was searching in the court’s Pending Branch for the copy of the First Information Report. After a short while, we rushed to me in near panic and told me, “come and see the FIR and complaint! That woman has said all sorts of things against the husband and in-laws.” I read the FIR and complaint which was with the Section head of the Pending Branch. The in-laws and husband had been accused of harassing her for dowry of Rs.2 lakhs to buy immovable property  (I wonder where would one get immovable property for this princely sum in Bangalore?), treated her like animal, did not care whether she had food or not, that they physically and mentally tortured her. That they were influential people and could harm her including threat to her life and they had to be proceeded against in accordance with law. In the complaint and FIR, even the parents had been named as accused persons.

The vehemence of language in the complaint and the string of lies shocked me. I knew from personal knowledge that her mother-in-law would deliver food plate to wherever the complainant sat, when she returned home from work. I also knew that the complainant would leave the food standing for long time, thereafter reject it as cold or stale. But that was besides the point. The immediate concern were two fold: one, being accused, the mother could no longer stand as surety for the accused; two, being the accused, the parents ran the risk of being sent to JC, if the court noticed their presence in the court hall. CRL told them, “Go downstairs, and go away wherever you like, until I obtain anticipatory bail for you”. The panicked parents dashed out of the court complex, not to be seen or heard for next two weeks.

Since there was no question of obtaining bail on the same day, I agreed to be the surety for obtaining the bail. I did not have to rush to get the documents, as my surety affidavit would be moved only next morning supported by my property documents.

While waiting for our matter to be called, we were entertained by a cross examination by a counsel speaking Kannada with heavy Tamil accent. The issue was same, under section 498A. The complainant wife was in the witness box. The counsel grilled her, a person qualified in law and working for a leading law book publishing house, to expose that though she was earning Rs.40,000 a month, she took Rs.3000 as monthly maintenance allowance from a husband, whose reported annual income was Rs.1.03 lakhs! Eventually, at about 4.50 pm, our matter was called. CRL told the court that he was moving bail application, and submitted the copies of decisions he was relying on for supporting the grant of bail. The APP, for all that Rs.3000 was worth told the court that the accused person’s passport should be seized! There was no question of his obliging us by filing objections then and there. The magistrate routinely asked the accused whether the police had treated him badly. He replied in the negative. Equally routinely, ignoring the CRL’s pleas to grant bail, the magistrate remanded the accused to JC for the day, and posted the matter for next day to consider APP’s objections. The CRL gravely approached the accused husband and told him “tomorrow we will definitely get you out on bail. Be brave and put up with this for a day!”

The police approached me and asked to provide transport to take the accused husband to Parappana Agrahara Central Jail, failing which, he would be taken there along with criminals. Horrified at that prospect, the brother in law of the accused lent his service by agreeing to take the police and the accused in his car. Couple of more cops also joined the trip. All were amply fed on the way including the accused, as we did not want him to eat jail food at least for that night.

Dejected, and feeling depressed, all of us returned home, thinking of the accused husband, who was destined to spend time on hard cold floor with other under trials, while we were going to sleep in the comfort of warm bed.

By

B.N.Gururaj, Advocate.

At present, at least in India, the answer seems to be in the affirmative, especially for young husband and his parents. Here is the background.

Life before Section 498A of IPC

There was a time, in none too distant past, when the newspapers reported almost on routine basis, cases of bride-burning. The ostensible motive was the demand of dowry, failure of the daughter-in-law and her parents to meet the demands and consequent criminal acts by the parents of the bride groom.  These sickening episodes were reported with alarming regularity. The names bandied about sometimes, included powerful people in the society, politics, business. That was a time, when trial by media had not yet caught on. Matters were merely reported and not speculated upon. So much so that eventually, the Central Government moved out of its slumber and sometime in early nineties inserted Section 498A in the Indian Penal Code, 1860, so that in a case of cruelty to girls in the marital homes, not only the husband, but also near relatives of the husband could be arrayed as accused. The offence was punishable with seven yeas imprisonment.

Correspondingly, in the Code of Criminal Procedure 1973 also, the Schedule was amended to treat the offence under Section 498A of the IPC as cognizable and non-bailable offence. That is, being a cognizable offence, upon receipt of a complaint from a harassed girl or her family or even a near relative the police were empowered to arrest the accused persons named in the complaint, which would usually include the husband, parents-in-law, sisters-in-law. Being a non-bailable offence, under Section 437 of the Cr.PC, no magistrate could grant bail to the accused persons unless the public prosecutor was heard. In practice, this meant that time should be given to the public prosecutor to file written objections, thereafter hear the accused and then decide on granting the bail.

Use and abuse of new provision

Gradually the complaints from harassed daughters-in-law started trickling into the police stations and courts. The society generally cheered such events as it conferred on hapless girls who were going through hell in their marital home, suffering ignominy, mental agony, often physical injuries, not to speak of agony for her maternal home.

In the criminal law, the burden of proof is on the prosecution to prove the case beyond reasonable doubt. Hence, success rate in prosecution cases is quite low. Few years later, the courts, especially the superior courts such as the High Courts and the Supreme Court noted with concern that vast number of cases were getting dismissed at trial itself. In such of those cases, which came before the superior courts in criminal appeals or revision petitions, evidence was found to be wanting. Many cases were bereft of facts. Investigation by the police was either absent or very sketchy. The courts noted with concern that the police were more or less trigger-happy when it came to acting on complaints under Section 498A. The courts advised and directed that the police should be careful before exercising the power of arrest pursuant to a complaint filed under Section 498A. Of course, needless to add that as long as the statutory provision remains on the book, the police are bound by it and are entitled to act on that basis.

Ugly side of complaint under Section 498A

The flip side of this provision was that it became a milch cow for the police. For acting on the complaint from the daughter-in-law or her family, they would take money. They would also make money from the husband’s side by threats of arrest. With it, another new and fertile field of police-station lawyering also grew. A tribe of lawyers who became adept and experts at helping the girl’s side in filing complaints, frequently false complaints. Where the ingredients were not available or the complaint did not know better, there was always a helpful police-station lawyer willing to fill in the blanks so that the complaint fitted within the scope of Section 498A.

Complainant aided by unscrupulous lawyers and corrupt police

Soon this provision became a tool for extortion, with the help of a Inspector or PSI always willing to help for a consideration from the girl’s side. The police could not case less what the demand was as long as the complainant was pleased. If the complainant was displeased, in compliance with the complaint and consideration received from the girl’s side, the Inspector or the PSI would arrest the named accused.

Arrests are done with great alacrity, in all case with almost no investigation, as though the accused might disappear like a whiff of smoke. Arrests are deliberately done at such timing, that the person has to spend at least one night in the police lock up, usually at around eight O’clock in the evening or thereabouts. The arresting officer would truthfully record that since it was too late to produce before a learned magistrate, the accused would be produced in the court the next day.

Another routine case for the trial court

At the court, it will be one more case of arrest produced before the magistrate. After asking the routine question whether police caused any inconvenience to the accused, the magistrate would send the accused to the Judicial Custody. That is, the accused will spend the night along with criminals and under trials. After spending the night as a State Guest and suffering the ill-treatment at the hands of the jail wardens, the accused would be ready to do anything in the world to get out of that hell called Jail. Bail granted would have humiliating condition of regularly marking attendance at the police station. Even marking of this attendance if not free of corruption.

Prosecution itself can be a punishment

Thereafter, the police have sixty days time to file the charge sheet. The trial may go on endlessly for years together. Few if any, accused can lead normal life of working and earning a living during the period, what with frequent appearances in the court, the ignominy faced at the work place and expenses towards legal defense. If the accused is working abroad, the position will be worse, as failure to return in time would mean loss of job abroad. Therefore, usually, the accused is forced to strike a deal with the complainant, pay a king’s ransom and see that the complaint is withdrawn or quashed.

Criminal proceedings used for circumventing civil proceedings

The police and lawyers have no respect for courts and their proceedings. Even when civil proceedings are pending for divorce, the complainant used Section 498A as a tool of extortion to demand huge permanent alimony, a sum far higher than any family court would award in a civil proceeding.

This is how, Section 498A of the IPC, a salutary provision meant for protecting daughters-in-law harassed for dowry is working. It has become a tool of extortion. A tool used with the willing aid of the police and unscrupulous lawyers. Section 498A has become a Democlean sword hanging over the heads of the husband and in-laws of the girl. At any time, the girl can demand ransom and demand that her wish be met. The demand could be money, or getting rid of husband’s parents, or making separate home. If the husband fails to meet the demand, she can walk into a station aided by a lawyer to file complaint against her husband and in-laws. What follows thereafter has been narrated elaborately.

What is needed to be done?

This does not mean that the law has to be changed to its original position. In fact, IPC need not be amended at all. It is necessary to make the offence under Section 498A a non-cognizable offence and a bailable one. This would mean that the complainant has to file a complaint before the magistrate under Section 200 of Cr.PC. When the court issues summonses to the accused persons after obtaining the sworn statement of the complainant, the accused would appear before the court and obtain bail. The disruption of the life of the accused would be minimal.  Most importantly, the proceeding under Section 498A, which is now under the control of the Police would come under judicial control.

It is an urgent requirement of society to ensure that law is not misused by the greedy girls, their families, the corrupt police and unscrupulous lawyers to harass guiltless people.

More about lawyers’ ugly role in the matter

There is an ugly side to the court proceeding and the conduct of lawyers, ignorance of lawyers which results in needless agony and expenditure for the accused. That will be the subject matter of another paper.

 By

B.N.GURURAJ, Advocate.

Whenever matriculation results and PU results are announced, parents have every reason to be alarmed about their wards, especially if they have not done well in the exams, or have failed. Young lives have become the cheapest objects to be thrown away on the slightest excuse, bad performance in the examination being one of the major excuses.

Earlier, I had an occasion to write about how youngsters committed suicide for not being allowed to watch TV, being scolded for not studying properly, and worst when the mother refused to prepare and serve akki rotti (Roti made out of rice flour) to a teenager. On the other hand, there was also a news item on 13^th May about a father killing his son for watching IPL matches on the TV.

Repeatedly wise men, social scientists, and education experts have been pointing out that excellence in academics is not a necessary concomitant for success in life. Though many people who are successful in life may have had academic excellence, not all persons successful in life were academically excellent. Mediocrity in academics did not come in the way of success in life. It may be rather simplistic to say that there is too much focus on securing high marks and distinction in academic pursuit, as though that would be the passport for the rest of the life. There is failure to realize that good education is only one of the aspects of life and not the life. Embarrassment resulting from failure in an exam may last for a short period. None of the peers or neighbours are going to remember it for every. Everyone has a life to lead. None can keep tabs on others’ achievements and failure endlessly. Teasers, and wagging tongues will quite down after a few days.

Even more important is that most of us do not realize how fortunate we are, to be born as human beings. We are intelligent, we can build houses for ourselves, we make our own food, we can discover and invent, we can swat a fly that sits on our body, we can dry ourselves clean when we are drenched in rain, we can take medicine to cure our sickness. One can go on endlessly about the traits and achievements of human beings, which make us vastly superior to even the most intelligent amongst animals. Instead of counting our blessings, we tend to count our curses.

In Shanti Parvan of Maha Bharata, there is an instructive story which runs thus:

“A Brahmin scholar and a Kshatriya, both youths, were traveling together in a chariot. An altercation developed between them. The Kshatriya being spirited person, threw the Brahmin out of the chariot much to the ignominy of the latter and went away. The Brahmin, feeling humiliated readied to commit suicide then and there, cursing the fate of Brahmins for being weak and unable to retaliate to stronger oppressors.

“At that stage, Indra the Lord of Heaven appeared before the Brahmin youth in the form of a jackal and spoke to him to dissuade him from committing suicide. Indra tells him, “We animals are utterly helpless. We cannot make our own food. Every day we have to search for food. If we get drenched in the rain, we cannot even wipe ourselves, we have to wait for the sun to dry us out, and shiver in cold till then. When we fall sick, none treats us with medicine. If the hunter attacks, there is little we can do except take to flight. If insects sit on our body and bite us, we cannot even readily chase them away.” Indra goes on in this vain and points out the advantages that human beings enjoy on every count.

Finally, the Brahmin youth is persuaded to give up the idea of committing suicide and returns to his place to get on with his life.

Indeed, in order to know how fortunate the humans are, all that we need to do is to compare ourselves to animals around us.

Preaching Morals and Corruption

Dear Mr.Balram Singh,

(balram.singh@timesgroup.com)

This is about the “Parting Shot” in your column “To the Point”, in STOI, dated 1.2.2009 (Bangalore edition). You have rhetorically asked whether corruption is not a worse problem than Pub Culture? You have referred to BJP MLA caught in the act of taking bribe, and equally rhetorically asked how can our youth draw inspiration from “such leaders”, and whether such netas have the right to peach about “Indian Culture”.

I am writing this letter not by holding any brief for one side or the other, but to point out your logical flaw.

To the best of my knowledge, Sampangi, the tainted MLA has not preached on “Indian Culture” or against pub culture, nor has he positioned himself as a model leader to be emulated by the youth. Neither Mr. B.S.Yadiyurappa nor Dr.V.S.Acharya have been caught in the acts of corruption, though they have preached on pub culture. Therefore, your question about the netas’ right to preach while being corrupt is illogical and not based on facts. Leaders who have preached have not been caught in the corrupt acts, nor the person caught in the act, preached morals. You seem to attribute the act of one person, and the views of several persons to some hypothetical or non-existing “neta”.

Coming to the question “why isn’t political class doing anything about corruption”, you must know as a journalist that the political class, irrespective of their flag is the cause of corruption (suitably aided by equally corrupt bureaucracy), and also holds the key to fight corruption.

Thus, Indian public is in a position of a householder who has appointed the thief as the watchman. You are expecting the thief to catch himself!

Before concluding, may I request you to spare a thought to the parents of the girls who frequent the pubs. Would they want their daughters to cultivate the habit of drinking, and go prancing around with perfect strangers?

Yours sincerely,

B.N.Gururaj,

Advocate,

Bangalore.