“….the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to
approach the Court and he can be summarily thrown out at any stage of the litigation…………”
Pls refer the entire Judgment below
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction Appellate Side
PRESENT:THE HON’BLE MR JUSTICE KALIDAS MUKHERJEE
CRR NO. 999 OF 2006
Md. Ashiruddin & Anr.
State of West Begal & Anr.
For the Petitioner :Mr. Milon Mukherjee, Sr. Adv. Mr. Lutful Haque,Ms. Ameena Kabir
For the State : Mrs. Krishna Ghosh
HEARD ON: 18.03.2008.
KALIDAS MUKHERJEE, J.:
1. This is an application under Section 482 read with Section 300 Cr.P.C. praying for quashing of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat, District – Nadia.
2. The petitioner No. 1 is a retired Sub-Inspector of Police and the petitioner No. 2 is a Constable. The first wife of petitioner No. 1 died and thereafter he again married O.P. No. 2 Rojina Bibi on 25.06.2004 according to Muslim Shariat Laws and both of them were leading conjugal life in village Murcha, P.S. Khargram, District – Murshidabad. O.P. No. 2 was a widow at the time of her marriage with petitioner No. 1 and had a son and two daughters out of her previous marriage. The petitioner No. 1 used to reside in Krishnanagar where he was posted and the O.P. No. 2 was residing in village Morcha. There was difference of opinion between the spouses. O.P. No. 2 filed a case against the petitioner No. 1 under Section 498A/325 I.P.C. being Kotwali P.S. Case No. 95/2005 dated 06.4.2005. Charge sheet was issued on 15.4.2005 being C.S. No. 80/2005 under Section 498A I.P.C. The O.P. No. 2 complained of mental and physical torture. On 11.4.2005 O.P. No. 2 made an affidavit before the learned Sub-Divisional Judicial Magistrate, Krishnanagar stating that she had no complaint against her husband whatsoever. In the affidavit she stated that when she went to Krishnanagar, a person took her signatures on some blank sheets and taking advantage of that filed a case against her husband. She also stated that her husband never committed torture upon her physically or mentally and that they had been leading a happy conjugal life. On 9th June, 2005 the petitioner No. 1 was discharged by the learned S.D.J.M., Krishnanagar on the basis of affidavit made on 11.4.2005. Thereafter the petitioner No. 1 divorced to the O.P. No. 2 on 04.8.2005 and communicated the same by registered post with A.D. dated 13.8.2005 and 18.8.2005, but, the registered letter dated 18.8.2005 came back to the petitioner as ‘refused’ by the O.P. No. 2. O.P. No. 2 filed a case in the Court of Chief Judicial Magistrate, Krishnanagar on 29.8.2005 under Section 498A/34 I.P.C. against the petitioners, but, no effective step was taken thereof. The O.P. No. 2 also filed a case in the Court of Additional Chief Judicial Magistrate, Krishnanagar against the petitioner No. 1 under Section 125 Cr.P.C. being case No. 481 of 2004. The O.P. No. 2 also filed another case under Section 498A/34 I.P.C. (G.R. No. 1343 of 2005) Hnaskhali P.S. Case No. 281 dated 06.12.2005, in the Court of Additional Chief Judicial Magistrate, Ranaghat. The allegations raised against the petitioners are false and concocted. The continuance of proceeding under Section 498A/34 I.P.C. in Hanskhali P.S. Case NO. 281 dated 06.12.2005 is unwarranted and will be the abuse of the process of the Court. In view of the discharge of the petitioner No. 1 from earlier case being Kotwali P.S. Case No. 95 of 2005, the instant case being Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. cannot proceed and the same is not maintainable. Under the circumstances, the petitioner has filed the instant application praying for quashing of the proceeding under Section 482 Cr.P.C.
3. Mr. Mukherjee appearing on behalf of the petitioners submits that the earlier case ended in discharge on 09.6.2005 passed by learned S.D.J.M., Krishnanagar in G.R. Case No. 408 of 2005, Kotwali P.S. Case No. 95 of 2005. Mr. Mukherjee submits that the divorce was effected on 04.8.2005 when the factum of divorce was communicated to O.P. No. 2 herein. Mr. Mukherjee contends that same allegation as made in the earlier complaint was raised against the petitioner No. 1 herein in the subsequent petition of complaint which was sent to P.S. under Section 156(3) Cr.P.C. on 06.12.2005 bearing Hanskhali P.S. Case No. 281 dated 06.12.2005. Mr. Mukherjee contends that there is no allegation under Section 406 I.P.C. in the instant case and, moreover, there is suppression of material facts in the subsequent complaint being Hanskhali P.S. Case No. 281 date 06.12.2005. Mr. Mukherjee contends that when the petitioner No. 1 was discharged in the earlier case which ended in his discharge on 09.6.2005, the subsequent case on the same allegations bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 is not maintainable. Regarding the suppression of material facts viz. discharge of the petitioner No. 1 in the earlier case, Mr. Mukherjee has referred to and relied on the decisions reported in 2005 SCC (Cri)1322 [MCD Vs. State of Delhi and another] para 21 and (2004)7 SCC 166 [S.J.S. Business Enterprises (P) Ltd. V. State of Bihar and others] para 13.
4. Mrs. Ghosh appearing on behalf of the State submits that the petitioner No. 1 herein was the Sub-Inspector of Police and regarding the alleged torture meted out to O.P. No. 2, there are medical reports and statements of the witnesses recorded under Section 161 Cr.P.C. It is contended that it is not clear whether there was divorce or not by way of Talaknama. As regards the allegation of torture under Section 498A I.P.C. on the same facts in the subsequent case, Mrs. Ghosh contends that the manner of alleged torture upon O.P. No. 2 in the second case was different and there is added period of alleged torture. Mrs. Ghosh contends that O.P. No. 2 was assaulted by the petitioner No. 1 as per allegation and in view of the medical reports and the statements of the witnesses recorded under Section 161 Cr.P.C., there is no ground to quash the proceedings pending in the learned Court below. Mrs. Ghosh contends that the petitioner No. 1 herein can raise such question in the Trial Court at the appropriate stage, but, not in the instant application under Section 482 Cr.P.C.
5. From the F.I.R. of Kotwali P.S. Case No. 95 of 2005 dated 06.4.2005 G.R. No. 408 of 2005 it appears that the occurrence of the alleged offence was after the marriage till the date of lodging the F.I.R. i.e. 06.4.2005. It further appears that the said case bearing No. 408 of 2005 ended in the discharge of the accused under Section 245 Cr.P.C. The learned Magistrate considered the affidavit filed by the defacto-complainant in the said case wherein it was stated that she was leading her conjugal life happily with her husband. On hearing the defacto-complaint and considering the contentions raised in the affidavit, the learned Magistrate recorded the order of discharge under Section 245 Cr.P.C. Subsequently, the instant case bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 was started. The petition of complaint was sent to the P.S. under Section 156(3) Cr.P.C. and the F.I.R. was registered bearing No. 281 dated 06.12.2005. In the said petition of complaint the occurrence of the alleged offence was after marriage extending up to 24.8.2005. It is, therefore, clear that the period of alleged torture as per the subsequent complaint also includes the period of torture as raised in the earlier complaint which ended in discharge of the accused. By filing the affidavit stating that she was living happily with her husband which enabled the Court to record order of discharge, the defacto complainant put an end to the allegation of torture as raised in the earlier petition of complaint and, as such, the same allegation over the same period cannot be reopened.
6. Secondly, in the second petition of complaint there is no whisper about the contention raised in the earlier complaint and the order of discharge made therein. Mr. Mukherjee in this connection has referred to the decision reported in 2005 SCC (Cri) 1322 para 21 (Supra). The observation of the Hon’ble Apex Court made in para 21 of the aforesaid decision is quoted hereunder:-
“This apart, the respondent did not also disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another Criminal Case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to
approach the Court and he can be summarily thrown out at any stage of the litigation…………”
The observation of the Hon’ble Apex Court made in the decision reported in (2004)7 SCC 166 para 13 (Supra) is quoted hereunder:- “As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case…………”
7. Since in the subsequent petition of complaint there is no whisper about the earlier petition of complaint followed by the order of discharge of the accused persons, such non-disclosure amounts to suppression of material facts, inasmuch as, had it not been suppressed, it would have an effect on the merits of the case. Following the ratio of the aforesaid decisions, I find that it is a fit case for quashing of the proceedings in the exercise of the jurisdiction under Section 482 Cr.P.C. The application under Section 482 read with Section 300 Cr.P.C. is allowed. Accordingly, the proceedings of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat stand quashed.
8. Let a copy of this order be sent to the learned Court below immediately.
9. Urgent Xerox certified copy of this order, if applied for, be handed over to the parties as early as possible.
( Kalidas Mukherjee, J. )
Is this site religious?
What does it mean to be (gender) Equality Agnostic?
Gender Equality Agnosticism is a form of Egalitarianism, specifically limited to gender equality. In brief, it is the belief that equality is not a men’s issue, or a women’s issue—it is a human rights issue and therefore needs to be pursued from a standpoint that takes on the position of both sexes.
Equality is defined as: The state or quality of being equal; correspondence in quantity, degree, value, rank, or ability.
Agnostic is defined as: A person who holds neither of two opposing positions on a topic. Socrates was an agnostic on the subject of immortality.
Good Women vs Bad Men—An insight into media gender stereotyping
Any reference to patriarchy in any of our articles is based on the dictionary definition of patriarchy–essentially a societal norm of awarding authority roles to men. EqualityAgnostic.com does not support the second-wave or RadFem definition of patriarchy as a cruel, oppressive male societal construct.
Take a look at the following headline and make your own assumptions. Which gender do you think the teacher is?
‘Sixth-Grade Teacher Charged with Rape of 13 year old boy…’ (actual article here)
At the start of the female revolution, feminists famously led a controversial argument, ‘Maybe god is a woman’. It caused a lot of people to look long and hard at a patriarchal bias to promote power-roles as male, to recognise male achievement and to promote awareness of the male contribution to society. Unfortunately, feminism did not follow that argument through to the next logical conclusion: ‘If god is a woman, then in all likelihood, so is the devil.’
When it comes to societal perception of gender, we are still living with the hangover of this unfortunate norm, a focus on female light and male shadow (—Warren Farrell).
Modern western culture promotes a strong push for the positive recognition of women and a decline in the positive recognition of men. The reasoning behind this is the belief that women need to be empowered to be equal to men and that further positive reinforcement of men as a group only broadens what feminism has defined as a gender power gap. If you’re unsure if this is accurate, type “empowering women” and “empowering men” (use the quote marks for an exact search) into google and see the vast difference in the number of results and the tone of those pages.
Feminism’s push to create choice as to whether women adhere to female gender role (mother/nurterer) combined with a societal norm of continuing to propagate the enforcement of, and obligations attached to, male gender role (protector/provider)—a role that teaches men it is their duty to protect women—creates four powerful media norms in western culture:
- The female good news story.
- The no-gender good news story.
- The male bad news story.
- The no-gender bad news story.
There is an argument that this norm is the failing of the male-gender centricity inherent in all language. There is some merit to this, but take a look at that list again and note the times that gender is deliberately added or omitted. That isn’t just male centric language. This is made worse by the fact that societally we preference bad news over good news, leading to more frequent publicising of bad news stories.
These things combined mean that the headline you are most likely to read when you pick up a paper or search a news site is (see exact search matches at end of article):
‘Gunman slays ten’ 1 rather than ‘Fireman saves ten’.2
On the occasion a good news story appears, you are most likely to see female achievement stories such as ‘First woman arrives at space station.’3
When the story champion is female, we declare sex. When the story perpetrator is male, we declare sex. When the story champion is male, we have a preference of declaring gender neutrality:
‘Firefighter saves ten…’4
When the story perpetrator is female we declare gender neutrality:
‘Teacher rapes student…’5
|Please note that the only reason the female news story is the focus of this image, is that this is the article I clicked on after a google search, a search which displayed title only.|
On the rare occasion that gender neutrality does not occur for the male good news story, we declare an individual, not the male gender:
‘Robert Johnson, the voice for change.’ 6
The outcome of this is a public perception message that ‘a good man’ is the exception and that ‘bad men’ are the norm. Take a look at the statistics at the end of this article and you will get some small insight into why this norm is completely backwards.
This norm influences societal perception of men at the macro and the micro level, and that perception heavily impacts all levels of gender debate and all traction for men’s equality (eg family law) and gender issues. How? Consider some of the following:
- Do you feel the statement “You’re just a girl,” is damaging to women?
- Do you feel the statement, “Be a man,” is damaging to men?
- Do you feel a lack of equal representation in high power jobs is damaging to women?
- Do you feel a lack of equal representation in low power jobs is damaging to men?
- Do you feel female circumcision is damaging to women?
- Do you feel male circumcision is damaging to men?
- Do you feel that 4/5 of rape victims being female, is damaging to women?
- Do you feel that 4/5 of murder victims being male, is damaging to men?
- Do you feel hate crimes like “acid attacks” on women in extremist countries, is damaging to women?
- Do you feel that in those same countries, the fact that sons and fathers are selling their internal organs to fulfil their male gender role of provider, is damaging to men?
Your ability to strongly say ‘yes’ to all of those questions will normally depend on three things: which gender you are, how ingrained you are in gender role and how deeply societal gender perception affects you.
The most common reaction is to have no idea at all of the male counterpart as an issue, and if you do, to assignseverity to those issues and to downplay them, rather than merely accept that the only thing the above list signifies is that both genders experience issues which must be addressed. If you think that last statement might represent you, I’d ask you to take just one of those items—a position that is often deemed to be completely acceptable:
Do you feel male circumcision is damaging to men?
I challenge you to put together any group of uncircumcised men at all, and ask them which of them is in favor of having the end of their penis cut off. See if you can get any takers.
As for severity? I personally don’t debate severity. A debate in severity ends in the emotional validation of one person, and no advancement of anyone’s equality or gender issues.
A fight for female equal rights and the removal of female gender role was only the first step towards gender equality. Until concerted effort is made to end the enforcement of both gender roles, to create equal rights for both genders, to remove both male and female privilege, and to end the negative societal perceptions attached to gender—gender equality will remain an unachievable reality.
Food for thought:
- As of 2007, there were 1,148,500 firefighters in the United States (not including firefighters who work for the state or federal governments or in private fire departments). Of these, 28% are career and 72% are volunteer. This is a career group made up almost 100% by men, with female employee’s primarily filling ‘safe’ support roles.In 2013 America had six mass shootings by six individuals, each spoken of in media as a ‘gunman’.
Compare the number of stories on each, see below:
1 Google search on ‘gunman’ news articles: 47,000 results
2 Google search for ‘fireman saves’ news articles: 331 results
3 Google search on ‘woman achieve’ news articles: 41,800 results
4 Google search for ‘firefighter saves’ = 5,610 results
5 ‘Teacher rapes’ articles: there are over 4000 results for this, but whether they are about a female teacher raping someone you can only tell by going through each article, one at a time. Regardless, the heading gives no indication of gender, the outcome is when a man rapes we name men and ‘men’ are seen as perpetrators, when we neutralise female gender bad news stories the assumption is men are responsible for those acts too because women don’t commit rape. Take a look at the picture of the included article that has the aforementioned ‘teacher rapes story,’ notice the column on the right?…
6 Individual good male articles: Basically impossible to show numbers on as it requires searching one individual male at a time and even then the credit goes to ‘a man’ not to ‘men’.
Courtesy:- Daniel Kroker
Shrimati Maneka Gandhi,
Hon’ble Minister of Women and Child Development,
New Delhi, India.
Young love often reported as rape in our ‘cruel society’ – The Hindu
“I lay the blame for a lot of this at the door of Parliament,” lawyer and leading women’s rights activist Vrinda Grover said.
In January 2013, Seema (name changed), who had moved to Delhi from rural Bihar with her brother went to the Hanuman temple on Delhi’s Panchkuian Road with 19-year-old Sameer (name changed). He put vermilion on her forehead, the couple embraced and now married in their own eyes, they ran away to Sameer’s native village in Samastipur. By May, Seema, now pregnant, was in a court-mandated shelter home for young women visited only by Sameer when he got bail, accused of kidnapping and raping his young love.
The content of 600 court judgements analysed by The Hindu and interviews with complainants, judges and police officers illuminate for this first time the real stories behind the headlines on the national capitals rape statistics.
As Part 1 of the series showed, one-fifth of the trials ended because the complainant did not appear or turned hostile.
Of the cases fully tried, over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape. Another 25% dealt with “breach of promise to marry”. Of the 162 remaining cases, men preying on young children in slums was the most common type of offence.
These numbers too do not on their own illuminate the stories behind these numbers; for this, The Hindu interviewed judges, prosecutors, police officers, complainants, accused, lawyers and activists most of them under condition of anonymity because they were not free to publicly discuss confidential rape trials. What emerged were heart-rending stories and the role of the police and judiciary.
‘Teenage love drama’
Of the 460 cases dealing with sexual assault in Delhi’s district courts in 2013 that went to a full trial, 174 involved or seemed to involve runaway young couples like Seema and Sameer, The Hindu found. This was especially true for inter-caste and inter-religious couples.
Across the system, there was some amount of concern and sympathy for these consenting couples, especially among judges. Ruling on Seema and Sameer’s case in October 2013, Additional Sessions Judge Dharmesh Sharma said, “The instant case racks [sic] up a perennial problem being faced by all of us on the judicial side: what should be the judicial response to elopement cases like the instant one… This life drama is enacted, played and repeated everyday in the Police Stations and Courts…” Of the case before him, Judge Sharma noted, “This case is a teenage love drama where our dysfunctional cruel society and the justice system have separated the two love birds and have taught them a bitter lesson.”
“We get innumerable such cases in Lucknow too,” Seema Mishra, lawyer and women’s rights activists with Association for Advocacy and Legal Initiatives (AALI), said. AALI has been at the forefront of the pushing for women’s right to choose sexual relationships, which is at the heart of the 174 cases The Hindu looked at. In case after case, as well as in interviews with The Hindu, the behaviour of the girls’ parents was shocking: they arrive at the hotel the couple has eloped to and drag them home, they beat and even injure the couple (in one case breaking the girl’s spine), they threaten her even with acid, they force her to submit to invasive medical tests and in many cases, even to an abortion.
In Judge Sharma’s case, he was able to acquit Sameer since Seema was over the age of consent for sex at the time – 16 years. However now that the Criminal Law Amendment Act (2013) is in force, the age of consent now stands at 18. “I lay the blame for a lot of this at the door of Parliament,” lawyer and leading women’s rights activist Vrinda Grover said. “By raising the age of consent, they have ensured such cases of consensual sex being called ‘rape’ are just going to multiply.”
Promise of marriage
Judges, prosecutors and police officers tended to be far less sympathetic towards the other major area of concern – the 109 cases which deal with “breach of promise to marry”. The argument used by prosecutors in these cases is that if a woman had sexual relations with a man only under a false promise of marriage by him, her consent was not free as it was obtained through deceit. However in most such cases, showing that the accused never intended to marry the complainant becomes hard to prove, unless he is already married to someone else and hiding it.
“You might say it is wrong, but when the girl’s father comes to the police station and says she has been ruined, a policeman will tend to take the father’s side,” one senior Delhi police explained. More often than not, he said, the FIR was a way to force a man attempting to call off a marriage into going through with it; in a third of such cases The Hindu looked at, the woman deposed in court that they were now married and hence she no longer accused him of rape.
“Your family discovers you have been having relations with a man for five years and now he has called it off because of pressure from his family,” one complainant who lost her case explained. “Before you know what is happening, your father and uncle have gone to the police station and you are forced into this. Everyone tells you that if you do not go along with it, you will never get married,” she said.
“Frankly I think this shouldn’t be counted as rape. It comes from a patriarchal context, from the premium placed on a woman’s chastity. But if we want to talk of women’s agency, we cannot have it both ways,” Ms. Grover said, a sentiment shared by several other feminist lawyers.
Rape as we know it
The 161 remaining cases look a lot closer to what is conventionally referred to as rape. Nearly half of these involved an adult neighbour preying on a minor child of a neighbour or a vulnerable woman sleeping outdoors or alone at home, most took place in slums, and had a conviction rate of over 75%. “Mothers like me have to work all day and are not able to keep an eye on our children,” one mother who secured a conviction in the rape of her three-year-old by a neighbour, said in tears. The medical investigation and courtroom terrified her, the woman said, but her family supported her.
In such cases, the consistent testimony of the complainant played the most important role. Judges were usually willing to convict in the absence of medical evidence, and in one case, Additional Sessions Judge Renu Bhatnagar convicted a man of raping a mentally challenged minor girl even though she was unable to depose in court apart from nodding. However in at least two cases where the complainant admitted that she met the accused alone voluntarily but did not consent to sex, judges disbelieved the woman’s testimony.
The judgement in the December 16 gang-rape formed part of The Hindu’s study and was notable in its length, detail and unprecedented extent of medical evidence. It was one of only 12 rapes heard in 2013 that were alleged to have been perpetrated by strangers, and all of the others pre-dated it.
The stories behind Delhi’s sexual assault statistics indicate that the image created by police statistics alone might be a misleading one.
(This is part two of a three-part series. Part 3 appears tomorrow: The Journey from FIR to Judgement)
More than Society, we all must give a Big Thanks to radical Women activist like #RajKumari, #ShibitaKrishan and all Mombatiwala, who advocated such Unfair, Biased LAW to promote the #Fake Cases, where any girls or Women can term any Men a Rapist only by her Verbal allegations, without any Medical Evidence with out any restrictions of time limit.
Men’s Rights Association and their associated NGO recommended Gender Natural ( replace men/women to person) , Evidence based Criminal law along with a strong Misuse Clause like Lokpal Act to the Government, but all gone in deaf ears till date.
If you make any criminal law Non-bailble , where the FIR can be registered only by Verbal allegations , such LAW will only promote the #Fakecases and#LegalTerrorism, as no one Born in Raja Harish Chandra Family , that they will never lie.
More disturbing our WCD minister without going to details of cases and find the way to protect our Child from wrongly termed rapist , propose to treat the Boys below 18 years old as adult .
Wonder if, our WCD and Government can’t reform a Child, how they will reform a country?
We once again send our proposal to WCD and request to amend the Rape law on Top Priority along with Caution, which we had bring to your notice earlier also.
If you really want the IPC376, #IPC354 should not be misused left, right and center, like the way in 498A/DV act the word “Relative” misused, amend the law as per our suggestion.
Be ready the Rape statistics will be double in next two years and it will became another extortion, blackmailing and easy money earning business for all Advocate, Police and greedy people.
Summary of our Recommendations and Request to meet your MP/MLA/Ministers and demand:
1) Make Rape Law Gender Neutral as in other countries of the globe
2) Relationship cheating cases should not be allowed to be converted into rape cases which suck the scare resources from genuine rape cases.
3) False complaints of Rape cases should be punished severely, so that genuine cases like ‘Nirbhaya’, gets justice.
4) Introduce the much required police reforms and use Technology to increase conviction rates of rape cases and punish those file false cases.
· All references to “Man” or “Woman” must be replaced with the word “Person” or “Whosoever”
· All references to “His” or “Her” to be must be replaced with the word “His or Her”
· All references to “He” or “She” must be replaced with the word “He or She”
· All references to the word ‘Husband” or “Wife” must be replaced with the word “Spouse”
MRA Amol Kurhe
Mens Rights Association
CALCUTTA HC- The future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.
In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
The Hon’ble Justice Ashim Kumar Roy
C.R.R. NO. 399 of 2007
Pranati Mukherjee & Anr.
For Petitioners : Mr. Jayanta Nath Saha For O.P. No. 1 : Mr. Subhasish Chakraborty Ms. Shreyashi Biswas
Mr. Soumya Chakraborty
Ms. Sasita Halder
Heard On : August 26th, 2008.
Judgment On : 12-11-2008.
In connection with a maintenance proceeding under Section 125 of the code of Criminal Procedure, the present petitioner was directed to pay a sum of Rs. 2,000/- per month to his wife, the opposite party herein as her monthly maintenance. Since the petitioner allegedly made no payment the wife/opposite party moved an application under Section 125 (3) of the Code of Criminal Procedure before the court concerned for enforcement of the said order and for realization and recovery of the amount due i.e. a sum of Rs. 22,000/- relating to the period from February 2005 to December 2005, which give rise to Misc. Case No. 50 of 2006 and the Learned Additional Presiding Judge, Family Court, Calcutta made an order directing that a sum of Rs. 1,000/- per month be deducted from the pension account of the petitioner and be credited to the savings account of the wife/opposite party on and from January, 2007 during the coming 22 months towards the recovery of arrear maintenance in addition to Rs. 2,000/- per month which has already been directed to be deducted from the pension account of the petitioner towards the payment of future maintenance. The petitioner challenged the said order on the ground in default of payment of maintenance allowance and for recovery of the same the future pension cannot beattached.
2. Heard the learned advocates appearing on behalf of the parties. Perused the impugned order as well as other materials on record. Considered their respective submissions.
3. In the case of Md. Jahangir Khan Vs. Mst. Manoara Bibi, reported in 1992 Cri L.J. 83, a Division Bench of our High Court held that the future salary not being a tangible corporeal property the same cannot be attached for recovery of the arrear maintenance.
4. It may be noted that the Learned Judge also in her order observed that no future income can be attached as she was of the view since same was not salary but was pension to which the petitioner is entitled during her lifetime the same can be attached. In this regard the observations made by the Division Bench of our High Court in the aforesaid case of Md. Jahangir Khan Vs. Mst. Manoara Bibi (supra) would be very relevant and is quoted below; Para 13. “A single Judge of Orissa High Court relying on a Karnataka decision in Rudraiah V. Muddagangamma, 1985 Cri LJ 707 sought to make a synthesis in Surekha V. Ramahari, 1990 Cri LJ 639. His Lordship while agreeing that only tangible corporeal property could be attached held that salary when becomes due was liable to attachment. According to the learned Judge, writ of attachment should remain dormant and would revive at the end of the month. With deep respect to the learned Judge, wecannot accept his view for the foregoing reasons. On similar reasons, we are unable to agree with the finding of the referring Judge.”
5. Thus, the future pension of the petitioner not being tangible and still not been earned by him same cannot be attached.
6. The impugned order is thus set aside and accordingly the criminal revision is allowed.
The Learned Judge is directed to proceed with the matter against the petitioner who is in alleged default of making payment of maintenance allowance and to enforce the order of maintenance in accordance with the provisions of Section 125 (3) of the Code of Criminal Procedure. Both the parties are directed to appear before the court concerned within fortnight from this date and the Learned Magistrate is directed to take necessary steps immediately thereafter. In view of the disposal of the main criminal revision C.R.R. No. 399 of 2007, the application for modification and/or variation of the order dated February 2007 passed by the Hon’ble Mr. Justice P.N. Sinha being CRAN No. 1800 of 2007 stands disposed of.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.
( Ashim Kumar Roy, J. )
On the 2nd of July 2014, the Honorable Supreme Court of India gave a landmark judgment while granting interim bail to an accused under Section 498A of the IPC popularly known as the Dowry Law.
Watch Amol kurhe on abp news- Is the dowry law being misused in the country?: http://t.co/WkE27MmpyT
SC: SC: dowry law the most misused, abused law in India. Police shld follow 9 point checklist as per 41 crpc
The Supreme Court on Wednesday said women were increasingly using the anti-dowry law to harass in-laws and restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code.
Citing very low conviction rate in such cases, it directed the state governments to instruct police “not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of Criminal Procedure Code“.
Section 41 lays down a nine-point check list police to weigh the need to arrest after examining the conduct of the accused, in cluding possibility of his absconding.
If police arrested the accused, “the magistrate, while authorizing detention of the accused shall peruse the report furnished by the police officer in terms of Section 41 and only after recording its satisfaction…will authorize detention,“ the bench bench of Justices C K Prasad and P C Ghose said. It also said that this checklist for arrest and detention would apply to all offences, which are punished with a prison term less than 7 years. Punishment under Section 498A is a maximum of three years but it had been made a cognizable and nonbailable offence, which made grant of bail to the accused a rarity in courts.
But the court singled out the dowry harassment cases as the most abused and misused provision, though the legislature had enacted it with the laudable object to prevent harassment of women in matrimonial homes.
Writing the judgment for the bench, Justice Prasad said there had been a phenomenal increase in dowry harass
ment cases in India in the last few years. “The fact that Section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives,” he said.
“The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grandmothers of the husbands, their sisters living abroad for decades are arrested,” he said.
or long now, concerns have been expressed about stringent anti-dowry laws being misused by some women to harass or blackmail their in-laws. These apprehensions have not only been expressed by courts, women’s activists too have acknowledged that such misuse is not unknown. It was, therefore, necessary for the law to take this reality into account.
The apex court’s order does just that. Automatic arrest was one of the provisions that lent itself most to abuse and making it mandatory for a magistrate to sanction arrest should help curb this abuse of law. Beyond that, there’s a lesson for all of us – social ills can’t be eliminated just by enacting laws, as India tends to do. Society as a whole needs to join the movement against them.
Pls find the judgment below:-
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)
ARNESH KUMAR ….. APPELLANT
STATE OF BIHAR & ANR. …. RESPONDENTS
J U D G M E N T
Chandramauli Kr. Prasad
The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and with fine.
Petitioner happens to be the husband of respondent no.2 Sweta Kiran. The marriage between them was solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked the door of this Court by way of this Special Leave Petition.
In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight lacs, a maruti car, an
air-conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the appellant’s notice, he supported his mother and threatened to marry another woman. It has been alleged that she was driven out of the matrimonial home due to non- fulfilment of the demand of dowry.
Denying these allegations, the appellant preferred an application for anticipatory bail which was earlier rejected by the learned Sessions Judge and thereafter by the High Court.
There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.
Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.
Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so.
As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section
41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we
are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows:
“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)x x x x x x
(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,
(i) x x x x x
(ii) the police officer is satisfied that such arrest is necessary –
to prevent such person from committing any further offence; or
for proper investigation of the offence; or
to prevent such person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner; or
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
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
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.
X x x x x x
From a plain reading of the aforesaid provision, it is evident that a
person accused of offence punishable with imprisonment for a term which may
be less than seven years or which may extend to seven years with or without
fine, cannot be arrested by the police officer only on its satisfaction
that such person had committed the offence punishable as aforesaid. Police
officer before arrest, in such cases has to be further satisfied that such
arrest is necessary to prevent such person from committing any further
offence; or for proper investigation of the case; or to prevent the accused
from causing the evidence of the offence to disappear; or tampering with
such evidence in any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the Court or the police officer; or unless such
accused person is arrested, his presence in the court whenever required
cannot be ensured. These are the conclusions, which one may reach based on
facts. Law mandates the police officer to state the facts and record the
reasons in writing which led him to come to a conclusion covered by any of
the provisions aforesaid, while making such arrest. Law further requires
the police officers to record the reasons in writing for not making the
arrest. In pith and core, the police office before arrest must put a
question to himself, why arrest? Is it really required? What purpose it
will serve? What object it will achieve? It is only after these questions
are addressed and one or the other conditions as enumerated above is
satisfied, the power of arrest needs to be exercised. In fine, before
arrest first the police officers should have reason to believe on the basis
of information and material that the accused has committed the offence.
Apart from this, the police officer has to be satisfied further that the
arrest is necessary for one or the more purposes envisaged by sub-clauses
(a) to (e) of clause (1) of Section 41 of Cr.PC.
An accused arrested without warrant by the police has the
constitutional right under Article 22(2) of the Constitution of India and
Section 57, Cr.PC to be produced before the Magistrate without unnecessary
delay and in no circumstances beyond 24 hours excluding the time necessary
for the journey. During the course of investigation of a case, an accused
can be kept in detention beyond a period of 24 hours only when it is
authorised by the Magistrate in exercise of power under Section 167 Cr.PC.
The power to authorise detention is a very solemn function. It affects the
liberty and freedom of citizens and needs to be exercised with great care
and caution. Our experience tells us that it is not exercised with the
seriousness it deserves. In many of the cases, detention is authorised in a
routine, casual and cavalier manner. Before a Magistrate authorises
detention under Section 167, Cr.PC, he has to be first satisfied that the
arrest made is legal and in accordance with law and all the constitutional
rights of the person arrested is satisfied. If the arrest effected by the
police officer does not satisfy the requirements of Section 41 of the Code,
Magistrate is duty bound not to authorise his further detention and release
the accused. In other words, when an accused is produced before the
Magistrate, the police officer effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its conclusions for arrest and
the Magistrate in turn is to be satisfied that condition precedent for
arrest under Section 41 Cr.PC has been satisfied and it is only thereafter
that he will authorise the detention of an accused. The Magistrate before
authorising detention will record its own satisfaction, may be in brief but
the said satisfaction must reflect from its order. It shall never be
based upon the ipse dixit of the police officer, for example, in case the
police officer considers the arrest necessary to prevent such person from
committing any further offence or for proper investigation of the case or
for preventing an accused from tampering with evidence or making inducement
etc., the police officer shall furnish to the Magistrate the facts, the
reasons and materials on the basis of which the police officer had reached
its conclusion. Those shall be perused by the Magistrate while authorising
the detention and only after recording its satisfaction in writing that the
Magistrate will authorise the detention of the accused. In fine, when a
suspect is arrested and produced before a Magistrate for authorising
detention, the Magistrate has to address the question whether specific
reasons have been recorded for arrest and if so, prima facie those reasons
are relevant and secondly a reasonable conclusion could at all be reached
by the police officer that one or the other conditions stated above are
attracted. To this limited extent the Magistrate will make judicial
Another provision i.e. Section 41A Cr.PC aimed to avoid
unnecessary arrest or threat of arrest looming large on accused requires to
be vitalised. Section 41A as inserted by Section 6 of the Code of
Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant
in the context reads as follows:
“41A. 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
that 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.”
Aforesaid provision makes it clear that in all cases where the
arrest of a person is not required under Section 41(1), Cr.PC, the police
officer is required to issue notice directing the accused to appear before
him at a specified place and time. Law obliges such an accused to appear
before the police officer and it further mandates that if such an accused
complies with the terms of notice he shall not be arrested, unless for
reasons to be recorded, the police office is of the opinion that the arrest
is necessary. At this stage also, the condition precedent for arrest as
envisaged under Section 41 Cr.PC has to be complied and shall be subject to
the same scrutiny by the Magistrate as aforesaid.
We are of the opinion that if the provisions of Section 41,
Cr.PC which authorises the police officer to arrest an accused without an
order from a Magistrate and without a warrant are scrupulously enforced,
the wrong committed by the police officers intentionally or unwittingly
would be reversed and the number of cases which come to the Court for grant
of anticipatory bail will substantially reduce. We would like to emphasise
that the practice of mechanically reproducing in the case diary all or most
of the reasons contained in Section 41 Cr.PC for effecting arrest be
discouraged and discontinued.
Our endeavour in this judgment is to ensure that police officers do not
arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed above,
we give the following direction:
All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPC is
registered but to satisfy themselves about the necessity for arrest under
the parameters laid down above flowing from Section 41, Cr.PC;
All police officers be provided with a check list containing specified sub-
clauses under Section 41(1)(b)(ii);
The police officer shall forward the check list duly filed and furnish the
reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
The Magistrate while authorising detention of the accused shall peruse the
report furnished by the police officer in terms aforesaid and only after
recording its satisfaction, the Magistrate will authorise detention;
The decision not to arrest an accused, be forwarded to the Magistrate
within two weeks from the date of the institution of the case with a copy
to the Magistrate which may be extended by the Superintendent of police of
the district for the reasons to be recorded in writing;
Notice of appearance in terms of Section 41A of Cr.PC be served on the
accused within two weeks from the date of institution of the case, which
may be extended by the Superintendent of Police of the District for the
reasons to be recorded in writing;
Failure to comply with the directions aforesaid shall apart from rendering
the police officers concerned liable for departmental action, they shall
also be liable to be punished for contempt of court to be instituted before
High Court having territorial jurisdiction.
Authorising detention without recording reasons as aforesaid by the
judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the
cases under Section 498-A of the I.P.C. or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such cases where offence is
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.
We direct that a copy of this judgment be forwarded to the Chief
Secretaries as also the Director Generals of Police of all the State
Governments and the Union Territories and the Registrar General of all the
High Courts for onward transmission and ensuring its compliance.
By order dated 31st of October, 2013, this Court had granted
provisional bail to the appellant on certain conditions. We make this order
In the result, we allow this appeal, making our aforesaid order dated 31st
October, 2013 absolute; with the directions aforesaid.
(CHANDRAMAULI KR. PRASAD)
(PINAKI CHANDRA GHOSE)
July 2, 2014.