Guidelines and directions in cases registered u/s

498a/406 IPC, in order to salvage and save the

institution of marriage and matrimonial homes of the

couples

IN THE HIGH COURT OF DELHI AT NEW DELHI

Bail Application No. 1627/2008

04.08.2008

Judgment delivered on: 04.8.2008

Chander Bhan and Anr. ...... Petitioners

Through: Mr. Rajesh Khanna Adv.

versus

State ..... Respondent

Through: Mr. Pawan Sharma APP

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J. (Oral)

By way of the present petition the petitioners who are parents-

in-law of the complainant seek grant of anticipatory bail.

Mr. Sharma counsel for the State submits that allegations are

serious in nature against the petitioners, therefore, the petitioners do not

deserve grant of anticipatory bail.

Complainant is present in the court. She states that there is no

possibility of her going back to the matrimonial home. However, the

complainant is not averse to the matter being sent before the mediation cell.

Let the matter be sent to the Mediation Cell, Rohini Court, Delhi for exploring

the possibility of amicable settlement between the parties.

Let the parties appear before the Mediation Cell, Rohini Court,

Delhi on 11.8.2008 at 4.00 P.M.

List the matter before the court on 23.9.2008.

Till then the petitioners shall not be arrested.

Before parting with this case, I deem it expedient and in the

larger interest of saving matrimony of the couples and to restore peace between

the two hostile families of husband and wife who once must have celebrated the

marriage of couple with great zeal, fervor and enthusiasm but when faced with

many facets and stark realities of life entangled themselves to fight a long

drawn legal battle instead of building confidence, trust, understanding, mutual

respect for each other and their respective families.

The offence of cruelty by husband or relatives of husband (Section 498-A)

was added in 1986 to curb the vise of subjecting women to coerce them or their

relatives to meet unlawful demands for dowry.

Since its enactment, this provision has been subjected to systematic and

sustained attack. It has been called unfair and responsible for the

victimisation of husbands by their wives and her relatives. No doubt there may

be many deserving cases where women are being subjected to mental and physical

cruelty at the hands of the avaricious in-laws. But such cases have to be

distinguished from other cases where merely due to trivial fights and ego

clashes the matrimony is facing disaster.

What is not comprehended by young minds while invoking the provisions of

the likes of Section 498-A and 406 of IPC is that these provisions to a large

extent have done incalculable harm in breaking matrimony of the couples. Despite

the western culture influencing the young minds of our country, still it has

been seen that Indian families value their own age old traditions and culture,

where, mutual respect, character and morals are still kept at a very high

pedestal.

It has been noticed in diverse cases, where the brides and their family

members in litigation find the doors of conciliation shut from the side of groom

and his family members only on account of there having suffered the wrath of

Police harassment first at the stage when matter is pending before crime against

women cell and thereafter at the time of seeking grant of anticipatory or

regular bail and then the ordeal of long drawn trial.

Daily, matters come before this court seeking bail and for quashing of

FIR?s registered under Sections 498A/406 of the IPC. This court is of the view

that it is essential to lay down some broad guidelines and to give directions in

such matters in order to salvage and save the institution of marriage and

matrimonial homes of the couples.

Guidelines:

1. Social workers/NGO

There is no iota of doubt that most of the complaints are filed in the

heat of the moment over trifling fights and ego clashes. It is also a matter of

common knowledge that in their tussle and ongoing hostility the hapless children

are the worst victims. Before a wife moves to file a complaint with the Women

Cell, a lot of persuasion and conciliation is required.

(a) The Delhi Legal Service Authority, National Commission for Women, NGO?s and

social worker?s working for upliftment of women should set up a desk in crime

against women cell to provide them with conciliation services, so that before

the State machinery is set in motion, the matter is amicably settled at that

very stage. But, if ultimately even after efforts put by the social workers

reconciliation seems not possible then the matter should be undertaken by the

police officials of Crime against Women cell and there also, serious efforts

should be made to settle the matter amicably.

2. Police Authorities:

(a) Pursuant to directions given by the Apex Court, the Commissioner of Police,

Delhi vide Standing Order No. 330/2007 had already issued guidelines for arrest

in the dowry cases registered under Sections 498-A/406 IPC and the said

guidelines should be followed by the Delhi Police strictly and scrupulously.

(i) No case under Section 498-A/406 IPC should be registered without the prior

approval of DCP/Addl. DCP.

(ii) Arrest of main accused should be made only after thorough investigation has

been conducted and with the prior approval of the ACP/DCP.

(iii) ) Arrest of the collateral accused such as father-in-law, mother-in-law,

brother-in-law or sister-in-law etc should only be made after prior approval of

DCP on file.

(b) Police should also depute a well trained and a well behaved staff in all the

crime against women cells especially the lady officers, all well equipped with

the abilities of perseverance, persuasion, patience and forbearance.

(c) FIR in such cases should not be registered in a routine manner.

(d) The endeavor of the Police should be to scrutinize complaints very carefully

and then register FIR.

(e) The FIR should be registered only against those persons against whom there

are strong allegations of causing any kind of physical or mental cruelty as well

as breach of trust.

(f) All possible efforts should be made, before recommending registration of any

FIR, for reconciliation and in case it is found that there is no possibility of

settlement, then necessary steps in the first instance be taken to ensure return

of stridhan and dowry articles etc. by the accused party to the complainant.

3. Lawyers:

Lawyers also have a great responsibility in this regard.

(a) While drafting pleadings/complaints, the lawyers should not unnecessarily

suggest incorporation of wild allegations, or in character assassination of any

of the parties or their family members whatever the case may be.

(c) Lawyers are also to endeavour to bring about amicable settlement between the

parties as they are expected to discharge sacred duty as social engineers in

such cases instead of making them target for monetary considerations by

multiplying their cases.

4. Courts:

Subordinate courts, be it trying civil or criminal cases concerning bail,

maintenance, custody, divorce or other related matters shall in the first

instance, in every case where it is possible so to do consistently with the

nature and circumstances of the case, to make every endeavour to bring about

reconciliation between the parties.

a) The first endeavor should be for possible reunion and restitution of the

parties and as a last endeavor to bring about peaceful separation.

b) If possible extra time should be devoted to such matters to restore peace in

the lives of rival parties be it by re-uniting them or even in case of their

parting ways.

c) Conciliatory proceedings by the court should preferably be held in camera to

avoid embarrassment.

d) Wherever, the courts are overburdened with the work, necessary assistance of

Mediation and Conciliation cells should be sought.

Apart from above directions it would not be out of place to ask parties

also to themselves adopt a conciliatory approach without intervention of any

outside agency and unless there are very compelling reasons, steps for launching

prosecution against any spouse or his/her in-laws be not initiated just in a

huff, anger, desperation or frustration.

DASTI. KAILASH GAMBHIR, J

August 04, 2008

?mg?

Bail Application No. 1627/2008

Page 11 of 11

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. - 46

Case :- CRIMINAL MISC. WRIT PETITION No. - 3322 of 2010

Petitioner :- Re: In The Matter Of Matrimonial Disputes

Respondent:- State Of U.P. & Others

Petitioner Counsel :- P.N. Gangwar

Respondent Counsel :- Govt. Advocate,Abhay Raj Singh,Pankaj Naqvi

Hon'ble Amar Saran,J.

Hon'ble Shyam Shankar Tiwari,J.

On 8.8.2011, there was an extensive hearing in this case when Ms. Leena Jauhari, Secretary

(Home), Government of U.P. Lucknow, Smt. Poonam Sikand, Additional L.R and Tanuja

Srivastava, I.G.( Public Grievances), Ms. G. Sridevi, Secretary, U.P. State Legal Services Authority,

Sri Ashok Mehta, Organising Secretary, Allahabad High Court, Mediation and Conciliation

Centre, Sri Pankaj Naqvi, Sister Sheeba Jose Advocates on behalf of the intervenor 'Sahyog,' Sri

D.R. Chaudhary, learned Government Advocate and Sri Bimlendu Tripathi, learned A.G.A

appeare and were heard at length.

An affidavit has also been filed on behalf of the Director General of Police on 10.8.2011.

Another affidavit was also filed on behalf of Special Secretary (Home), U.P. on 12.8.2011. An

application was also moved by the intervenor 'Sahyog.'

This Court appreciates the positive contributions and suggestions of all the aforesaid advocates

and other State officials and that this pro bono litigation is being taken up in the right non-

adversarial spirit, with the aim to ensure that wherever allegations are not very grave, in order

to save families, and children and indeed the institution of marriage, an effort be first made for

reconciling matrimonial disputes by mediation before steps can be taken for prosecuting

offenders, if they are called for. In Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 the

learned members of the bar have been reminded of their noble profession and their noble

tradition and of their responsibility to ensure that the social fibre of family life is preserved by

desisting from over-implicating all in-laws and their relations as accused persons in 498-A IPC

reports, and from filing exaggerated reports. They are also to make an endeavour to bring

about amicable settlements to this essentially human problem. It has also been rightly pointed

out in Sushil Kumar Sharma v Union of India, AIR 2005 SC 3100 (para 18) whilst upholding the

vires of section 498-A IPC, that it should be ensured that complaints are not filed with oblique

motives by unscrupulous litigants so that a "new legal terrorism" is not unleashed, and that the

well-intentioned provision is not misused.

In Kans Raj v State of Punjab, AIR 2000 SC 2324, it has been held that there is a tendency in

cases of 498-A IPC and 304 B IPC to rope in a large number of in-laws of the victim wife, and not

only the husband. In para 5 of the law report it has been observed: "....In their over enthusiasm

and anxiety to seek conviction for maximum people, the parents of the deceased have been

found to be making efforts for involving other relations which ultimately weaken the case of

the prosecution even against the real accused as appears to have happened in the instant

case."

Specifically as a result of the interaction and suggestions which emerged after a dialogue with

the Advocates and officials, this Court requires to formulate its opinion on the following points:

1. Whether registration of an FIR is mandatory once an aggrieved woman or the eligible family

members as specified under section 198A Cr.P.C approaches the police station giving

information that an offence under section 498A IPC or allied provisions such as under section

D.P. Act or under section 406 I.P.C have been committed by the husband or other in-laws

and their relations.

2. Should the concerned police officers immediately proceed to arrest the husband and other

family members of the husband whenever such an FIR is lodged.

3. Can a distinction be made between the cases where arrest is immediately necessary and

other cases where arrest can be deferred and an attempt be first made for bringing about

mediation between the parties.

4. What is the appropriate place where mediation should be conducted.

5. Should a time frame be laid down for concluding the mediation proceedings.

6. Who should be the members of the mediation cell in the district.

7. What is the procedure to be followed by the police when a report of a cognizable offence

under section 498A IPC or allied provisions is disclosed.

8. Is training of mediators desirable and who should conduct the training?

9. Should the offence under Section 498A be made compoundable and what steps the State

Government may take in this direction.

Discussions on the points requiring formulation by the Court:

1. Whether registration of an FIR is mandatory?

Section 154 of the Code of Criminal Procedure mandates that when any information regarding

information of a cognizable offence is given orally to the officer in charge of the Police Station,

he is required to reduce it in writing and to enter it into the general diary. The said provision

gives no option to the concerned Police Officer to refuse to lodge the F.I.R. once information of

a cognizable offence is given to the police officer.

In paragraph No. 30 and 31 in State of Haryana and others Vs. Bhajan Lal, 1992 Cri. L.J. 527, it

has been laid down that section 154 (1) of the Code provides that whenever an information is

given that a cognizable offence has been committed, the Police Officer cannot embark upon an

inquiry to ascertain as to whether the information was reliable or genuine or refuse to register

the case on that ground. The officer in charge of the Police Station is statutorily obliged to

register the case and then to proceed with the investigation, if he even has reason to suspect

the commission of an offence.

(2) Whether arrest of husband and family members mandatory once FIR is lodged .

It is noteworthy that section 154 Cr.P.C. which deals with the powers of investigation and the

necessity of lodging an FIR when a cognizable offence only speaks of "information relating to

the commission of a cognizable offence" given to an officer. No pre-condition, as pointed out

above, is placed under this provision for first examining whether the information is credible or

genuine. In contrast section 41(1)((b) Cr.P.C dealing with the powers of the police to arrest

without a warrant from a Magistrate requires the existence of a "reasonable complaint," or

"credible information" or "reasonable suspicion" of the accused being involved in a cognizable

offence as pre-conditions for effecting his arrest.

The two provisos to section 157 also speak of two exceptions when investigation (and

consequent arrest) may not be necessary. These two situations are:

(a) when information as to the commission of any such offence is given against any person by

name and the case is not of a serious nature, the officer in charge of a police station need not

proceed in person or depute a subordinate officer to make an investigation on the spot;

(b) if it appears to the officer in charge of a police station that there is no sufficient ground for

entering on an investigation, he shall not investigate the case. However in such situations the

police officer is to mention in his report the reasons for not investigating the case. In the second

case, where a police officer is of the opinion that there is no sufficient ground for investigating a

matter, he is to also inform the informant of his decision.

The proviso (b) to section 157 (1) Cr. P. C. has been discussed in paragraphs No. 53 and 54 in

Bhajan Lal (supra). The law report clarifies that clause (b) of the proviso permits a police officer

to satisfy himself about the sufficiency of the grounds even before entering on an investigation.

However, at that stage, the satisfaction that on the allegations, a cognizable offence warranting

investigation is disclosed, has only to be based on the F.I.R. and other materials appended to it,

which are placed before the Police Officer. Therefore, if it appears to the Police Officer that the

matrimonial dispute between the spouses is either not of a grave nature or is the result of a

conflict of egos or contains an exaggerated version, or where the complainant wife has not

received any injury or has not been medically examined, he may even desist or defer the

investigation in such a case.

Recently by Act No. 5 of 2009, the newly introduced section 41 (1) (b), has been given effect to

from 1.11.2010. This sub-section provides that if some material or credible information exists of

an accused being involved in a cognizable offence punishable with 7 years imprisonment or less

with or without fine, the Police Officer has only to make an arrest, if he is satisfied that such

arrest is necessary (i) to prevent such person from committing any further offence, (ii) for

proper investigation of the offence; (iii) to prevent such person from causing the evidence of

the offence to disappear or tampering with the evidence in any manner; (iv) for preventing such

person from making any inducement, threat or promise to a witness to dissuade him from

disclosing such facts to the Court or the Police Officer (v) or unless such a person is arrested, he

may not appear in the Court when required. This new provision has forestalled any routine

arrests simply because a person is said to be involved in a cognizable offence punishable with

imprisonment up to 7 years. The arrest is only to be effected if any or all of the five conditions

abovementioned are fulfilled. For making or for not making such arrest, the Police Officer has

to record his reasons. In contrast to this provision, under section 41 (1) (ba) such a limitation

has not been provided for those cases, where credible information has been received that a

person has committed an offence punishable with imprisonment of over 7 years.

A new provision, section 41 A Cr.P.C has also been added by Act No. 5 of 2009 (with effect from

1.11.2010) which gives powers to a Police Officer to issue a notice directing the person against

whom a reasonable complainant has been made or credible information or reasonable

suspicion exists to appear before him or at any place that he may specify in the notice where

the police officer is of the opinion that the arrest is not required under the provisions of section

41(1) Cr.P.C. but the accused is to comply with the notice and he would not be arrested, if he

continues to comply with the terms of the notice. However, where the person fails to comply

with the notice, the police has all powers to arrest him, unless there is some order of the Court

granting him bail or staying his arrest.

Now an offence under section 498A IPC is punishable with imprisonment only up to three years

and fine. If there are no injuries on a victim, in our opinion, it constitutes a fit case for the police

officer to exercise powers conferred by the newly introduced section 41(1)(b) read with section

41 (A), where instead of straight away arresting the accused, it would be a better option at the

initial stage for the police officer to require the said person to appear before him or before the

Mediation Centre. As pointed out above section 41 A Cr.P.C. permits calling the person

concerned before the police officer himself or to any specified place. Hence a notice can be

given to the accused to appear before the mediation centre. This restraint on arrest, and

placing of conditions or terms for arrest would also apply a fortiori to the accused family

members of the husband of the aggrieved wife.

It may be pointed out that if the FIR is immediately registered that will placate the concerns of

the aggrieved wife to some extent that action is being taken on her complaint, and it has not

been put on the back burner.

(3) Whether distinction possible between cases necessitating immediate arrest, and cases

where attempt for mediation should first be made.

Arrest may be necessitated, if the husband or other in-laws have given a grave beating to the

wife endangering her life or where the wife has been subjected to repeated violence or there

are any other circumstances of exceptional cruelty against the wife, where future recurrence of

violence or cruelty seems likely, or for preventing the husband and his accused family members

from trying to browbeat witnesses or to tamper with the course of justice, or for ensuring the

presence of the husband or his accused family members at the trial, or for effective

investigation. In all other cases, we are of the opinion that an attempt should be first made for

bringing about reconciliation between the parties by directing the complainant wife and her

natal family members and the husband and other family members to appear before the

Mediation Centre when the wife or other eligible relations under section 198-A Cr.P.C.

approaches the police station for lodging the report.

The advantage of not immediately arresting the accused husband and his family members in a

trivial case where there appear to be no injuries on the aggrieved wife, is that in sudden

matrimonial disputes, because of clash of egos between the wife and her natal family members

and the husband and in-laws, the wife's side at the initial stage usually insists on effecting the

arrests of the husband and other in-laws. Once the husband or his family members are

arrested, and subsequently bailed out, little motivation remains for the parties to try and

resolve their disputes by mediation. This may prove disadvantageous for the wife in the long

run who may not have a source of independent livelihood for running her life in the future.

4. Appropriate place where mediation should be conducted.

The officials as well as the learned Government Advocate and other lawyers present

unanimously recommended that the Mediation Cell should not be at the police station. The I.G.

(Public Grievances) pointed out that the police officer before whom the report is lodged lack

proper training for conducting mediations sessions. Also if the police officer refrains from

arresting the accused persons pursuant to the wife's FIR, by attempting to mediate in the

dispute between the parties, even if it is a case of no injury, and even where he is only acting in

accordance with the general directions of the Court, questions about his integrity are

unnecessarily raised.

Moreover it is pointed out by the Secretary of the Legal Services Authority that now Mediation

or Conciliation Centres have been established in all the District Courts. We, therefore, think that

the mediation proceedings should be carried out in the said Mediation Centre.

5. Need for time frame for concluding the mediation proceedings.

The I.G. (Public Grievances) and others present rightly pointed out that a time frame must be

laid down for concluding the mediation proceedings as when an aggrieved wife approaches the

police for relief, because she has been subjected to cruelty. If the matter is unduly prolonged in

the mediation process, the delay could act as a shield to protect the accused from facing the

penalty of law, causing frustration and bitterness for the aggrieved wife. Notice should as far as

possible be served personally on the accused and the parties should be directed to appear

before the Mediation Centre within a week or 10 days of the lodging of the report by the

aggrieved wife or family members. Thereafter we think, that as far as possible, the mediation

proceedings should be concluded within two months of the first appearance of both the parties

before the Mediation Centre.

6. Who should be the members of the mediation cell in the district?

The Mediation Cell in the district should be headed by the Secretary of the Legal Services

Authority in the district, (at present, the Civil Judge, Senior Division has been made the

Secretary), other panel or retainer lawyers appointed by the District Legal Services Authority,

other lawyers, who volunteer for giving free services before the Mediation centre, especially

female lawyers should also be made members of the Mediation Cell. It is also desirable to have

three or four social workers (especially female) in the Cell. A female police officer of the rank of

Dy. S.P. may also be appointed an ex-officio member of the Mediation Cell.

7. Procedure to be followed by the police when a report of a cognizable offence under section

498A IPC or allied provisions is reported.

The report regarding commission of cognizable offence under section 498A IPC or other allied

sections may be lodged at the concerned police station where the incident takes place or at the

'Mahila Thana' especially created in the district for investigation of such cases. The police

officer concerned will get the aggrieved woman medically examined for injuries if the same are

present. If the report has been lodged at some police station other than the Mahila Thana, the

injury report and relevant police papers shall be forwarded to the Mahila Thana for

investigation of the case, and in appropriate cases the investigating police officer at the Mahila

Thana may refer the matter to the mediation centre in the Civil Court, and direct the

complainant to be present at the mediation centre on a fixed date 7 to 10 days thereafter. The

accused should as far as possible also be personally given notice to appear before the

mediation centre on the date fixed. We would also like the presence of trained social workers

(especially female) or legal aid panel lawyers to be present at the Mahila Thana for counselling

the aggrieved woman and her family members for first trying to solve their dispute by

mediation, when the case is registered at the mahila thana. The notice to the husband and

other family members should mention that in cases the husband or the family members of the

aggrieved wife fail to appear on the date fixed or on future dates, as directed by the Mediation

Centre or fail to comply with any condition that may be imposed by the police officer or

Mediation Centre, steps shall be taken for arresting the accused. The accused husband or other

in-laws should be directed to report before the police officer on a date two months after the

date of first appearance before the Mediation Centre and inform the Police Officer about the

progress in the mediation. The in-charge of the mediation proceeding may also direct the

husband or other family members to appear before the Police Officer at an earlier date fixed in

case mediation has failed or it has been successfully concluded and the parties concerned shall

appear before the Police Officer on the said date. It would also be open to the complainant wife

to inform the police officer about the progress (or lack of it) of the mediation process. The

notice should also clarify that in case mediation is pronounced as unsuccessful at an earlier

date, and information is given by either party or the Mediation centre to the Police Officer, he

may require the presence of the accused husband or his relations at an earlier date. If

mediation has been successfully concluded, it will be open to the Police Officer to submit a final

report in the matter. In cases, where it has not been successfully concluded and the Police

Officer is of the view that arrest may not be necessary in a particular case, he may direct the

accused persons to obtain bail from the Competent Court. In case, he is of the opinion that the

arrest is necessitated at a subsequent stage, it will be open to the Police Officer to take such

accused persons in custody. He should of course record his reason for making the said arrest as

provided under section 41 (1) (b) (ii).

8. Necessity of training to mediators.

We endorse the opinion of the intervening lawyers, the learned Government Advocate, Sri

Ashok Mehta, Organizing Secretary of the Mediation Centre of the Allahabad High Court and

the Government officials present, including the Secretary of the Legal Services Authority, that

training for mediators is a sine qua non for effective mediation. The Organizing Secretary of the

Allahabad High Court Mediation Centre (AHMC) and Secretary of the U.P. Legal Services

Authority (UPLSA) stated that the centre and authority are prepared to impart training to the

mediators. We welcome this offer and direct that there should be co-ordination between the

AHMC and UPLSA for giving effect to this offer. By and by as the State Government is able to

create a cadre of trainers for mediation, their services may also be utilised for training

mediators in the districts.

We think training is necessary because the responses to our queries from the subordinate

district courts reveal the poor success rate in the cases referred by the High Court or where the

concerned subordinate court has itself initiated the process of mediation. By contrast the

success rate at the Mediation Centre in the Allahabad High Court, which has independent

trained mediators (usually lawyers) is much higher. The first requirement for successful

mediation is the patience on the part of the mediator, and his willingness to give sufficient time

to the contesting parties and especially to the wife to express her bottled up grievances.

Thereafter, in a disinterested manner, the mediator should encourage the parties to come up

with solutions, giving useful suggestions for bringing about reconciliation, as the mediator

cannot impose his solution on the parties.

The guidelines hereinabove have been spelt out by the Court because of the specific request of

the officials and lawyers present to spell out the terms of the same, as guidance for the State

government (esp. the home department), the Legal Services Authority and the police for issuing

appropriate circulars or government orders.

(9) Should offences under section 498-A IPC be made compoundable?

We have received considerable feedback from subordinate judicial authorities that unless the

offence under section 498-A IPC is made compoundable, much benefit cannot be derived by

trying to bring about mediation between the parties. A dilemma then arises before the

concerned Court, (which cannot close the trial because the spouses have compromised their

dispute) or even before the aggrieved wife, if she decides to settle her dispute with her spouse

and in-laws either by agreeing to stay with them or to part amicably, usually after receiving

some compensation.

Even if she is no more interested in repeatedly visiting the court for prosecuting the accused, in

the absence of provisions for compounding the offence, she has willy nilly to perjure by making

a false statement that her initial report was untrue or lodged under influence of X or Y. If on the

basis of this statement the trial Court acquits the husband and his family members, and the

aggrieved wife returns to her matrimonial home, in the cases where she is again maltreated, if

she lodges a fresh report, its reliability will be open to question.

The Apex Court in Ramgopal v. State of M.P., 2010 SCALE 711 observed that an offence under

section 498-A IPC is essentially private in nature, and it should be made compoundable if the

parties are willing to amicably settle their dispute. Directions were given to the Law

Commission of India to consider the matter and to make appropriate recommendations to the

Government to bring about suitable amendments in the statute.

In Rajeev Verma v. State of U.P., 2004 Cri.L.J. 2956, which was a decision given by a bench in

which one of us (Amar Saran J) was a member, a similar suggestion was made to the Law

Commission of U.P. to recommend to the State government to make the offence under section

498-A IPC compoundable with the permission of the Court under section 320 Cr.P.C.

The reasons for the suggestion were that such FIRs are often lodged in the heat of the moment,

without reflection after a sudden quarrel, and sometimes as a result of wrong advice or

influences. But the complaining wife, who usually has no source of independent livelihood (as a

key problem in our society is the lack of economic and social empowerment of women) and is

unable to provide for herself in the future, may have to suffer later if the relationship with her

husband is irrevocably ruptured due to the hasty filing of the criminal case, particularly in view

of the fact that the offence is non-compoundable.

To meet this situation B.S. Joshi v State of Haryana, AIR 2003 SC 1386, Manoj Sharma v State,

2008 SC(Suppl) 1171, and Madan Mohan Abbot v State of Punjab, AIR 2008 SC 1969

recommended quashing of the complaint in proceedings under section 482 Cr.P.C or in the writ

jurisdiction where the aggrieved wife compounded the offence. In the latter case it was

observed that where the dispute is purely personal in nature, (i.e. the element of the offence

being a crime against society is secondary), and the wife decides to compound the offence, as

there would be little likelihood of conviction, quashing of the offence should not be refused on

the hyper-technical view that the offence was non-compoundable "as keeping the matter alive

with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly

overburdened as they are, cannot afford and that the time so saved can be utilized in deciding

more effective and meaningful litigation"

The following passage in paragraph 12 in G.V. Rao v L.H.V. Prasad, AIR 2000 SC 2474 has been

cited with approval in B.S. Joshi:

"There has been an outburst of matrimonial disputes in recent times. The marriage is a sacred

ceremony, the main purpose of which is to enable the young couple to settle down in life and

live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious

proportions resulting in commission of heinous crimes in which elders of the family are also

involved with the result that those who could have counseled and brought about

rapprochement are rendered helpless on their being arrayed as accused in the criminal case.

There are many other reasons which need not be mentioned here for not encouraging

matrimonial litigation so that the parties may ponder over their defaults and terminate their

disputes amicably by mutual agreement instead of fighting it out in a Court of law where it

takes years and years to conclude and in that process the parties lose their "young" days in

chasing their "cases" in different Courts."

In Rajeev Verma however relying on B.S. Joshi it was mentioned that whilst the trial could be

quashed in an application under section 482 Cr.P.C or under Article 226, being a fruitless

prosecution where there was little likelihood of conviction as the parties had settled their

dispute, but the proper forum for deciding the matter whether the compromise application was

voluntary and bona fide or whether it was coerced was the lower court which could decide

whether it was a fit case for granting permission to the wife to compound the offence under

section 320(2) Cr.P.C. This was only possible if the offence under s. 498-A IPC was made

compoundable with the permission of the Court.

A good option for providing recompense to the maltreated woman is "The Protection of

Women from Domestic Violence Act, 2005" which provides for a gamut of civil rights for the

aggrieved woman who has entered into a domestic relationship with a man, with or without

marriage. Such civil rights include "Protection orders" (section 18) prohibiting the respondent

from committing any act of violence, visiting the place of work, operating the common bank

locker, making telephonic contact etc. "Residence orders" (section 19), which restrain the

respondent from dispossessing a woman from the shared household, or from alienating or

renouncing his rights to the property or by directing him to remove himself, or by providing

alternate accommodation to the aggrieved woman at the existing level.

By providing "monetary reliefs" (sections 20 and 22) by paying for loss of earnings or medical

expenses, or loss due to destruction of property by domestic violence, or for maintenance of

the woman and her dependent children, or by payment of compensation for causing injuries

(including mental torture). "Custody orders" (section 21) for custody of the child to the woman

(including visiting rights) for the respondent. Criminal proceedings under this Act have been

allowed only as a last resort, under section 31 when the respondent commits a breach of a

protection order, or where at the stage of framing charges for breach of the protection order

he finds that an offence under section 498-A IPC has also been committed by the respondent.

The Act also provides under section 14 for the Magistrate to send a matter for "counselling"

before a registered "service provider," who is qualified to provide counselling in such matters to

the contesting parties or to provide shelter etc. to the aggrieved woman.

In the counter-affidavit dated 12.8.11 filed on behalf of the Home Secretary, U.P., it has

specifically been mentioned that the State government has given its consent to the Union of

India to make offences under section 498-A IPC compoundable, and the letter of the Home

(Police) Section-9 to the Union Home Ministry dated 4.2.10 has been annexed.

Whereas we appreciate this positive attitude of the State government in not objecting to

section 498-A IPC being made a compoundable offence. However we find that Andhra Pradesh,

by Act 11 of 2003 (w.e.f 1.8.03) has added section 498 A (wrongly described as 494 A) after

section 494 in the table in section 320(2) Cr.P.C. and has permitted the woman subjected to

cruelty to compound the offence with the permission of the Court, but added a proviso that a

minimum period of three months be allowed to elapse from the date of application for

compromise before a Court can accept the request, provided any of the parties do not

withdraw in the intervening period. The U.P. government may consider bringing out a similar

amendment, as it has already expressed its opinion that the offence under section 498-A IPC be

made compoundable.

Before parting we must clarify that the Court is of the firm view that acts of cruelty or violence

against women have neither ceased, nor have they been reduced, and the special provision for

meeting this problem must be retained in the statute book. We quote with approval the view

expressed in paragraph 11 of the recent Law Commission of India, Consultation Paper-cum-

Questionnaire regarding section 498-A of Indian Penal Code:

"While the Commission is appreciative of the need to discourage unjustified and frivolous

complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the

efficacy of s. 498-A to the extent of defeating its purpose especially having regard to the fact

that atrocities against women are on the increase. A balanced and holistic view has to be taken

on weighing the pros and cons. There is no doubt a need to address the misuse situations and

arrive at a rational solution - legislative or otherwise."

List this case on 8.11.2011 before the regular bench to be headed by one of us (Hon'ble Amar

Saran J)

The State government through the Chief Secretary, U.P., the Principal Secretary, (Home), U.P.,

Secretary Law/ L.R. U.P., Director General Police U.P., and Member-Secretary, U.P. Legal

Services Authority may issue appropriate guidelines or circulars for laying down a system for

proceeding in matters where reports are lodged of commission of offences under section 498 A

IPC where immediate arrests may not be necessary, for laying down the appropriate criteria in

this regard, and for sending the matters for mediation before the mediation cells in the Civil

Courts, in accordance with the aforesaid directions of this Court. The Principal Secretary,

(Finance), U.P. may apprise the Court as to the provision for finance for appointing social

workers/panel lawyers at the Mahila Thanas, for ensuring that appropriate training is given to

the social workers, legal aid lawyers, and concerned police officers for facilitating the mediation

process, for making available adequate infrastructure/ manpower at the mediation cells in the

Civil Courts, and for meeting expenses on other contingencies. Let the aforesaid authorities

submit their compliance reports within 4 weeks. We would also like reports from all the

Secretaries of the District Legal Services Authorities to submit their compliance reports

(through the District Judges) for getting the aforementioned minor matters relating to offences

under section 498 A IPC settled through mediation and the difficulties they encounter or forsee

in complying with the directions of this Court by the next listing. The State government is also

directed to submit its report on the next listing on the suggestion of the Court to take steps for

making the offence under section 498-A IPC compoundable with the permission of Court by

amending section 320 Cr.P.C in U.P. as has been done in the case of Andhra Pradesh. Registrar-

General is directed to forward copies of this order within a week to the Chief Secretary,

Principal Secretary, (Home), Law Secretary/LR, U.P., Principal Secretary (Finance), U.P., D.G.P.,

U.P., Member-Secretary, U.P., Legal Services Authority, U.P., Secretaries/ Civil Judges (Senior

Division) through District Judges in all districts in U.P., Sri Ashok Mehta, Organizing Secretary,

Allahabad High Court, Mediation Centre, Sri Pankaj Naqvi, and Sister Sheeba Jose, Advocates

for the intervenors, Government Advocate, U.P. and other advocates and officials present in

the hearing on 8.8.11 for information and compliance.

Order Date:- 30.9.2011 HSM.

ALLAHABAD HC_ Direction given to police & Magistrates on manner of remanding accused in

offences punishable upto 7 years in accordance with newly introduced section

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 46

Case: Criminal Misc. Writ Petition No. 17410 of 2011

Petitioner: Shaukin

Respondent: State of UP and others

Petitioner counsel: Mrs. Tabassum Hashimi, Ashwani Kumar Srivastava

Respondent counsel: Government Advocate

Hon'ble Amar Saran, J.

Hon'ble Kalimullah Khan, J.

1.A personal affidavit of the DGP, U.P. dated 11.10.11 has been filed and this Court is pleased to

note that in compliance of our earlier order dated 15.9.11. the DGP, U.P. has issued a circular

dated 3.10.11 addressed to all the regional IGs/ DIGs/ SSPs/SPs in-charge of all districts and

departmental heads of other police units to strictly enforce the newly introduced amendments,

viz. sub-section 41(1)(b) and section 41 A Cr.P.C and the directions contained in the order of

this Court dated 15.9.11 in Cr. Misc Writ Petiton No. 17410 of 2011, Shaukeen v State and order

dated 23.9.11 in Cr. Misc. Writ Petition No. 18661/ 2011, Ram Abhilash and others v State.

2. It was also pointed out in the circular that the investigating officers who file counter-

affidavits before the High Court do not have any knowledge about these provisions and how

they are to be applied.

3. The following observations in the order dated 15.9.11 have been quoted in the DGP's

circular: "Let a copy of this order be forwarded to the DGP, U.P. within one week by the

registry. The DGP may circulate this order to all police stations and investigating officers in U.P.

with directions to ensure strict and honest compliance with the provisions of sections 41(1)(b)

and 41 A Cr.P.C and to refrain from routinely arresting persons wanted in cases punishable by

imprisonment up to 7 years, unless in particular cases the exceptional circumstances

enumerated in section 41(1)(b) Cr.P.C. exist, after recording his reasons for arrest. Let the DGP

submit his compliance report of this direction within three weeks."

4. Annexure 2 to the DGP's affidavit in compliance of our dated 15.9.11 also contains the

following endorsement from all 72 districts in U.P.: " /

"

5. The directions were issued by the DGP's circular dated 3.10.11 to the subordinate police

officials to clarify that ordinarily the police shall not immediately arrest accused persons

wanted in matters punishable with imprisonment upto 7 years. This limitation was subject to

the exceptions mentioned in the aforesaid amended sections.

6. By the present order we proceed to explain the import and meaning of the amended

provisions 41(1)(b) and 41 A Cr.P.C, and to give some illustrations where accused could be

arrested straightaway on the lodging of the FIR, and other illustrations where immediate arrests

may not be needed, because we think that in many cases the police is still routinely proceeding

to arrest accused persons even if they are involved in offences punishable with up to 7 years

imprisonment, in contravention of the express terms of sections 41(1)(b) or 41 A Cr.P.C.

7. It would be useful to extract the material provisions, sections 41(1)(b) and 41 A, which have

been introduced by Act No. 5 of 2009, with effect from 1.11.2010 and also section 170(1) of the

Code of Criminal Procedure, here :

41. When police may arrest without warrant. -- (1) Any police officer may without an order

from a Magistrate and without a warrant, arrest any person

(a)------------------

(b) against whom a reasonable complaint has been made, or credible information has been

received, or a reasonable suspicion exists that he has committed a cognizable offence

punishable with imprisonment for a term which may be less than seven years or which may

extend to seven years whether with or without fine, if the following conditions are satisfied,

namely:-

(i) the police office has reason to believe on the basis of such complaint, information, or

suspicion that such person has committed the said offence;

(ii) the police office is satisfied that such arrest is necessary

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(C) to prevent such person from causing the evidence of the offence to disappear or tampering

with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person

acquainted with the facts of the case so as to dissuade him from disclosing such facts to the

Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be

ensured,

and the police officer shall record while making such arrest, his reasons in writing.

Provided that a police officer shall, in all cases where the arrest of a person is not required

under the provisions of this sub-section, record the reasons in writing for not making the arrest.

41 A. Notice of appearance before police officer- (1) The police officer shall in all cases, where

the arrest of a person is not required under the provisions of sub-section(1) of section 41, issue

a notice directing the person against whom a reasonable complaint has been made, or credible

information has been received,or a reasonable suspicion exists that he has committed a

cognizable offence, to appear before him or at such other place as may be specified in the

notice.

(2) Where such a notice is issued to any person, it shall be the duty of the person to comply

with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be

arrested in respect of the offence referred to in the notice unless, for reasons to be recorded,

the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling

to identify himself, the police officer may, subject to such orders as may have been passed by a

competent court in this behalf, arrest him for the offence mentioned in the notice.

170. Cases to be sent to Magistrate when evidence is sufficient. -(1) If, upon an investigation

under this Chapter, it appears to the officer in charge of the police station that there is

sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused

under custody to a Magistrate empowered to take cognizance of the offence upon a police

report and to try the accused or commit him for trial, or if the offence is bailable and the

accused is able to give security, shall take security from him for his appearance before such

Magistrate on a day fixed and for his attendance from day to day before such Magistrate until

otherwise directed.

8. The import of the said provisions is that normally where an accused has been named in the

FIR, and the offence is punishable with upto 7 years imprisonment, the arrest of the accused

may not be necessary at the initial stage and his attendance may be secured by issuing a notice

to him to appear before the police officer under section 41 A Cr.P.C. In such cases it would be

advisable to arrest the accused only after sufficient evidence of his involvement in the crime

has been collected and the charge sheet needs to be submitted. Under section 170(1) Cr.P.C. it

has been provided that on completion of investigation if sufficient evidence has been collected

the accused shall be forwarded in custody to the Magistrate concerned, unless he has been

released on bail (if the offence was bailable), in which event security may be taken for his

appearance before the Magistrate. This practice of not arresting the accused straightaway and

arresting them only after sufficient evidence has been collected is normally followed by the CBI,

and CB (CID) in their investigations.

9. Where however the accused has not been named in the FIR, or at the time when the co-

accused have been picked up, for example in a case of vehicle theft or recovery of other stolen

goods, or where the co-accused has been arrested while committing a crime, and he names

another accused as also having participated in the crime, whose custodial interrogation may be

necessary and the police officer is of the opinion that the disclosure furnishes credible

information or gives rise to reasonable suspicion for inferring that this accused whose arrest is

sought could also be involved, or there are chances that such an accused would abscond or not

respond to a notice under section 41A to appear, looking to the nature of the crime and the

background of the particular accused, these maybe appropriate cases where immediate arrests

may be needed. Likewise where the accused whose arrest is sought appears to be habitually

engaged in committing crimes or appears to be

participating in some organized crimes, and there is probability of the accused repeating the

offence, these would also be circumstances where it may be necessary to arrest such accused

without delay.

10. However in a case under section 498 A IPC where the wife subject to violence has gone

back to her "maika" following the violence, it may not be necessary in a particular case to

immediately arrest the husband and other family members who have been made accused in

the FIR until adequate evidence has been collected, as she is unlikely to encounter violence

when she is away from her "sasural." In E.C. Act offences again where the licences of a ration

card dealer named in the FIR has been suspended, he may not have any opportunity to again

indulge in blackmarketing or to commit a new offence under the E.C. Act. Here too arrests can

be deferred until sufficient evidence to submit a charge sheet has been collected, when he

needs to be produced before the trial court. But where the dealer is trying to obtain affidavits

from ration card holders and it appears that he is trying to win over witnesses, then it may be

open to the police to arrest him straight away. We have mentioned these examples as

illustrations for situations where arrests may or not be immediately needed and they are by no

means exhaustive.

11. It is with the objective of striking a balance on the need to provide the Constitutional

protection from arbitrary arrest guaranteed under Article 21 and the restraint on arrests for

offences punishable with imprisonment up to 7 years, subject to certain exceptions as provided

for under section 41(1)(b) Cr.P.C. and the need of the police to carry out its investigation

without interference, that we have refrained from passing blanket orders staying the arrests of

the accused in all such cases.

12. But we do expect the police officer to record reasons in a bona fide and honest manner,

why it has become necessary to arrest the accused in a particular case punishable with

imprisonment with upto 7 years. The police officer should not mechanically and routinely write

down in the case diary that there is likelihood of the accused running away, or presume that the

accused would not respond to the notice to appear under section 41 A Cr.P.C, or that he would

tamper with the evidence, unless there are strong reasons with concrete material for taking

such a view, and this satisfaction along with the concrete reasons for taking the view need to be

spelt out clearly in the case diary before the accused is arrested.

13. Thus strong reasons are needed for arresting an accused with respectable antecedents, who

is an income tax payee with roots in the community, and a permanent abode, no history of

earlier abscondance or non-cooperation with the police and who is not likely to tamper with

the evidence or to again commit a crime unless he is immediately arrested.

14. The propriety, honesty and genuiness of the reasons given for arrests in particular cases

punishable with imprisonment up to seven years and whether they conform to the

requirements of sections 41(1)(b) and 41 A Cr.P.C. therefore need to be strictly monitored by

the superior officers, i.e. C.O.s/ S.P.s/SSPs or DIGs in the districts, as has been emphasized in

the DGP's circular dated 3.10.11. We make it clear that in the event that this Court finds that

the accused who are wanted in cases punishable with up to 7 years imprisonment are being

arrested in a routine and mechanical matter, without the existence of the conditions necessary

for arresting them as mentioned in sections 41(1)(b) and 41 A Cr.P.C. this Court will have no

hesitation in summoning the concerned police officers or even the superior police officers and

they may even have to face contempt charges. For persistent unwarranted arrests in such

matters in violation of the provisions of sections 41(1)(b) and 41 A and the DGP's circular dated

3.10.11. we may even recommend disciplinary action against such errant police officers to the

DGP, U.P.

15. Section 167(1) of the Code of Criminal Procedure also requires production of the case diary

before the Magistrate before whom the accused is produced for remand.

16.Section 167(1) reads thus:

167. Procedure when investigation cannot be completed in twenty-four hours. ----(1) Whenever

any person is arrested and detained in custody, and it appears that the investigation cannot be

completed within the period of twenty-four hours fixed by section 57, and there are grounds

for believing that the accusation or information is well-founded, the officer in charge of the

police station or the police officer making the investigation, if he is not below the rank of sub-

inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the

diary hereinafter prescribed relating to the case, and shall at the same time forward the

accused to such Magistrate.

17. As rightly pointed out in Bir Bhadra Pratap Singh v D.M., Azamgarh, 1959 Cri.L.J 685 the

forwarding of case diary entries under section 167(1) Cr.P.C. is not an empty formality, and

the Magistrate is not simply to "rubber stamp" the prayer of the police officer seeking

remand of the accused, but he is to apply his judicial mind to satisfy himself that the

requirements of law are met when the police produces an accused for remand. At the time of

granting the remand we expect the Magistrate to examine the case diary for satisfying himself

whether the police officer's reasons for immediate arrest in the cases punishable with

imprisonment upto 7 years was held by him in a bona fide manner and whether the reasons for

remand are restricted to the pre-conditions for arrest mentioned in the newly introduced

sections 41(1)(b) and 41 A Cr.P.C. The Magistrate needs to closely examine as to how the police

officer could reach a conclusion that unless the accused

was arrested he would repeat the offence, or why without arrest the investigation could not

proceed, or whether the particular accused was as a matter of fact likely to cause the

evidence to disappear, or would tamper with the evidence, or the accused would try and

influence witnesses, or without arrest the particular accused would not appear in Court.

These opinions of the police officer are to be based on concrete material and cannot be the

mere ipse dixit of the officer. If he finds that no genuine reasons which accord with the

requirements of sections 41(1)(b) and 41 A exist the Magistrate may even refuse to grant

remand to the accused, and allow the accused to be released on a personal bond with a

direction to appear before the competent court or before the police when called upon to do so,

with or without security.

18. There would be no impediment in the Magistrate remanding the accused to judicial custody

at later stages as authorized under section 41(1)(b)(ii)(e) and section 170(1) Cr.P.C. when the

accused is produced before the Magistrate and the case diary shows that sufficient evidence for

submitting a charge sheet has been collected. Needless to mention that in case the accused has

already secured bail, then the police officer would be disentitled to arrest an accused person

for seeking his remand because the charge sheet is to be submitted. The accused could then be

summoned to appear by the Magistrate taking cognizance of the offence in exercise of powers

under section 204 Cr.P.C.

19. If accused who are required in cases punishable with upto 7 years sentence are not

routinely arrested by the police, or are granted bail by the lower court itself, without any undue

delay in disposing of their bail applications, and in appropriate cases the facility of releasing the

accused on interim bails on personal bonds pending consideration of their regular bails with or

without security with a direction to appear when required is also extended to them, as has

been laid down in the Apex Court Court in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4

SCC 437, the Full Bench in Amaravati and another v State of U.P., 2005 Cri.L.J. 755, and the

Division Bench in Sheoraj Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781,

considerable time of the High Court could be spent more productively in hearing single judge

and two judge appeals, or bails in grave matters. At present we find that most of the High Court

single and division benches on the criminal side are engaged in considering an inordinately

large number of applications for bail, applications under section 482 Cr.P.C., and Division Bench

criminal writ petitions in such matters punishable with imprisonment up to 7 years, which could

easily be dealt with by the Magistrates and Sessions Courts.

DIRECTIONS:

20. We therefore direct the Magistrates that when accused punishable with upto 7 years

imprisonment are produced before them remands may be granted to accused only after the

Magistrates satisfy themselves that the application for remand by the police officer has been

made in a bona fide manner and the reasons for seeking remand mentioned in the case diary

are in accordance with the requirements of sections 41(1)(b) and 41 A Cr.P.C. and there is

concrete material in existence to substantiate the ground mentioned for seeking remand. Even

where the accused himself surrenders or where investigation has been completed and the

Magistrate needs to take the accused in judicial custody as provided under section 170(1) and

section 41(1)(b)(ii)(e) Cr.P.C, prolonged imprisonment at this initial stage, when the accused has

not been adjudged guilty may not be called for, and the Magistrates and Sessions Courts are to

consider the bails expeditiously and not to

mechanically refuse the same, especially in short sentence cases punishable with upto 7 years

imprisonment unless the allegations are grave and there is any legal impediment in allowing the

bail, as laid down in Lal Kamlendra Pratap Singh V State of U.P., (2009) 4 SCC 437, and Sheoraj

Singh @ Chuttan v State of U.P. and others, 2009(65) ACC 781. The facility of releasing the

accused on interim bail pending consideration of their regular bails may also be accorded by the

Magistrates and Sessions Judges in appropriate cases.

21. The Magistrate may also furnish information to the Registrar of the High Court through the

District Judge, in case he is satisfied that a particular police officer has been persistently

arresting accused in cases punishable with upto 7 year terms, in a mechanical or mala fide and

dishonest manner, in contravention of the requirements of sections 41(1)(b) and 41 A, and

thereafter the matter may be placed by the Registrar in this case, so that appropriate

directions may be issued to the DGP to take action against such errant police officer for his

persistent default or this Court may initiate contempt proceedings against the defaulting

police officer.

22. The District Judges should also be directed to impress upon the remand Magistrates not to

routinely grant remands to police officers seeking remand for accused if the pre-conditions for

granting the remands mentioned in sections 41(1)(b) and 41 A Cr.P.C. are not disclosed in cases

punishable with 7 year terms, or where the police officer appears to be seeking remand for an

accused in a mala fide manner in the absence of concrete material. The issue of compliance

with sections 41(1)(b) and 41 A Cr.P.C and the directions of this Court in this regard may also be

discussed in the monthly meetings of the District Judges with the administration and the

superior police officials.

23. We are also of the view that the Registrar General may issue a circular within a period of

one month with directions to the Sessions Courts and Magistrates to monitor and oversee the

applications for remand sought by the arresting police officers and to comply with the other

directions mentioned herein above.

24. The DGP, U.P. is directed to send a status report with better particulars by the next listing

as to the extent to which arrests are only being effected in cases punishable with upto 7 years

imprisonment strictly in accordance with the conditions mentioned in sections 41(1)(b) and 41

A Cr.P.C. We are not satisfied by the mechanical incantation of the words by the police of 72

U.P. districts: " / ."

25.As already indicated above we are of the view that by routinely mentioning in the case diary

that a particular condition referred to in sections 41(1)(b) or 41 A Cr.P.C. has been met for

seeking police remand, would not provide adequate reason for effecting the arrest. The DGP is

also directed to circulate the present order to all subordinate police officers.

26. We are also of the view that the UP Legal Services Authority be directed to bring out

pamphlets for distribution in the legal literacy camps etc., or even issue news paper

announcement with headings such as " ,"

informing the public that henceforth accused wanted in cases punishable with upto 7 years

imprisonment would get relief and not be routinely arrested because of the recent amendment

to the Code of Criminal Procedure, which has been enforced from 1.11.2010.

27. Let a copy of this order be sent to the DGP, U.P., Member Secretary, U.P. SLSA and District

Judges in all districts of U.P. for compliance and communication to all the concerned judicial

magistrates before whom the accused are produced for remand by the police officers within

ten days.

28. Let a copy of this order be also furnished to the learned Government Advocate forthwith.

29. Let a compliance report be submitted by the DGP, U.P., Member Secretary, U.P. SLSA and

District Judges by the next listing. The said authorities may also indicate the difficulties if any,

faced in complying with the aforesaid directions.

List on 14.12.2011.

Dated: 11.10.2011