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ETHICAL 6

MULKHRAJ WORLD FOUNDATION

Post Box No. 9306

Delhi 110092 India

498A IPC IS Non-Cognizable for Living Woman (Wife) who may make complaint to allege cruelty u/s. 498A IPC to MAGISTRATE: APP TO SAVE THE INNOCENT HUSBAND SIDE IF 498A IS USED TO COOK UP SUCH COGNIZABLE CASE(F.I.R.) BY BLENDING WITH 498A IPC ON INFORMATION TO POLICE BY LIVING WOMAN U/S. 498A IPC TO ABUSE CRIMINAL PROCESS UNDER SECTION 155(4) of Cr. P. C. . THE WIFE BY NOT FILING HER COMPLAINT TO MAGISTRATE AS PRIVATE COMPLAINT IS ALSO RESPONSIBLE TO ABUSE CRIMINAL PROCESS FOR ULTERIOR MOTIVE FOR PURPOSES OTHER THAN FOR WHICH THE LAW WAS ENACTED BY PARLIAMENT UNDER CRIMINAL(AMENDMENT) ACT No. 46 of 1983 and consented by the President of India on

25 December 1983.

THE ETHICAL DUTY OF JUDGE AS WELL AS ADVOCATES OF BOTH SIDES

INCLUDING ADDITIONAL PUBLIC PROSECUTORS AS BASED UPON

JUDGMENTS OF SUPREME COURT and HIGH COURTS IS AS FOLLOWS: WE QUOTE:

· Late Justice Shiv Dayal during his tenure as Chief Justice of the High Court of Madhya Pradesh brought out Judges’ Diary as an official publication of the High Court. It included Judge’s Prayer running into three stanzas. Invoking the mercy of the Supreme Lord, he described the Judges as -

“Thy servants whom Thou sufferest to sit in earthly seats of judgment to administer Thy justice to Thy people”.

He begs from the infinite mercy of the Supreme LORD SO AS “to direct and dispose my heart that I may this day fulfill all my duty in Thy fear and fall into no error of judgment.” In the third stanza, he says ^___

“Give me grace to hear patiently, to consider diligently, to understand rightly, and to decide justly! Grant me due sense or humility, that I may not be misled by my willfulness, vanity or egotism”. Rightly, the Judges are something special in the democratic form of government governed by a Constitution and, therefore, the most exacting standards can be none too high.

And Advocates’ duty is discussed in following cases decide by Supreme Court and High Courts amongst other the followingl-

- State of < xml="true" ns="urn:schemas-microsoft-com:office:smarttags" prefix="st1" namespace="">Orissa Vs. Chandrika Mohapatra Apex court

(1976) 4 SCC 250 PN Bhagwati 3 Judges bench.

- Thakur Ram & ors. V. Bihar State AIR 1966 SC 91

referred in Judgment of Madras High Court in Crl. Revision No. 820/2004 Crl.M.P. No. 5725 in Rajesh Kumar Bagmar Vs. State of Tamilnadu - Bar Council Maharashtra V. M. V. Dabholkar - AIR 1976 SC 24

- Dattaram Satardekar V. Smt. Rucmini Raghunath on

10/9/2003 by Bombay High Court Goa Bench in WP No. 398/2003.

- D.P.Chadha V. Triyugi Narain MISHRA & Ors. - 2001 AIR SCW 50

- SHIV Kumar V. Hukam Chand 1999 SCC (Cri) 1 277.

- Shri Sudhakar s/o Shankarrao Suradkar, Special Inspector General of Police,

Aurangabad Range, Aurangabad Versus State of Maharashtra. & Ors. -

Judgment of our court by P. V. Kakade J. on 15 January 2002 (Bombay High Court) in CRIMINAL WRIT PETITION NO. 743 OF 2001:

· The Apex Court’s judgment in SHIV KUMAR Vs. HUKAM CHAND (1999 SCC (Cri)1 277) states the high standards of democratic justice in India -

“A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle or conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge”. And I quote:

" The Court in dealing with cases of professional misconduct is not concerned with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of their privileged status, are subject to certain disabilities which do not attach to other men and which do not attach even to them in a non-professional character. A legal practitioner is bound to conduct himself in a manner befitting the high and Honourable profession to whose privileges he has so long been admitted; and if he departs from the high standards which that profession has set for itself and demands of him in professional matters, he is liable to disciplinary action. The fact of there being no specific rules governing the particular situation, is not any reason for accepting a less rigid standard. If any, the absence of rules increases the responsibility of the members of the profession attached to the Supreme Court as to how they should conduct themselves in such situations, having regard to the very high privilege that an Advocate of that Court now enjoys as one entitled, under the law, to practice in all the Courts in India. "

· ThatBombay High Court –Goa bench in WRIT PETITION NO. 398 OF 2003 titled

Shri Ranjit Satardekar, son of Dattaram Satardekar Versus Smt. Rucmini Raghunath Narvekar & Anr. CORAM: R.J. KOCHAR & P.V. HARDAS, JJ. JUDGMENT on 10.9.2003 from which I quote:

“Even a little aberration in his conduct would impair not only his personal or individual status, but would instantaneously reflect on the whole legal fraternity as a community. A lawyer therefore has to be very very careful in his behaviour and conduct not only in the Court of law but also with his clients, with his opponents and with the people at large. He is an ambassador of the legal fraternity and the judicial system. If one nun goes astray the whole nunnery is maligned.” And I quote further -

“Before we part with this judgment, we wish to remind what Justice Krishna Iyer had said in the case of Bar Council Maharashtra v. M.V. Dabholkar, reported in A.I.R. 1976 S.C. 242 which was followed by the Supreme Court in a later judgment reported in 2001 AIR SCW 50 (D.P. Chadha v. Triyugi Narain Mishra and others), I quote as follows: -

" The vital role of the lawyer depends upon his probity and professional lifestyle. The central function of the legal profession is to promote the administration of justice." And further

"The Bar cannot behave with doubtful scruples or strive to thrive on litigation." And further

"Law is no trade, briefs no merchandise."

- UNQUOTE -

AND

ADDITIONALLY:

We quote from Judgment of THE HIGH COURT OF DELHI AT NEW DELHI in Crl.M(M) 3322/2003 delivered on < xml="true" ns="urn:schemas-microsoft-com:office:smarttags" prefix="st1" namespace="">January 13, 2004 concerning Quashing of FIR in

Narendra Kumar & Ors Versus State & ors. delivered byHON'BLE MR. JUSTICE J. D. KAPOOR

We quote from above judgment:

" The liberty of a citizen is highly sacrosanct and at no cost can be allowed to be curtailed or abridged in perpetuity. Even for those offences which are cognizable and non-bailable the Supreme Court has been impressing upon the police and the investigating agencies from time to time not to play with the liberty of citizens and not to arrest any person unless and until his arrest is very much essential and necessary for the purpose of investigation which means custodial investigation or for the purpose of recovering incriminating articles connecting the person with the commission of crime. In this regard I cannot resist the temptation of reproducing the observations made by the Supreme Court in one of such cases namely Joginder Kumar Vs. State of U.P and others 1994 4 SCC 260 which are pithy and have force of law. These are as under:-< xml="true" ns="urn:schemas-microsoft-com:office:office" prefix="o" namespace="">

"The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. 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 for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter." UNQUOTE

And

Additionally

The procedure followed before fabricating cognizable offence for alleged cruelty by registering F.I.R. a preliminary inquiry may be dramatized about which the AIR refers-

"That is probably why the law does not even permit a preliminary enquiry into

the incident before recording an FIR, because it would destroy its value and

pave the way for fabrication of cases (All India Reporter 1961 Kerala 99)."

UNQUOTE

And Additionally

26 September 2007: the Intention of Crl(Amend) Act No. 46 of 1983. Section 1 is its nomenclature.

The Intention of the Parliament is given in Criminal (Amendment) Act No. 46 of 1983

The related section of the Crl. Act No 46 of 1983 corresponding to the

I.P.C., Cr.P.C. and Indian Evidence Act is simulataneoulsy detailed below and quoted

from the said Act of 1983:-

Cognizable offence, in relation to section 498A IPC was created by the mother law, is dowry death for which the other sections of the mother law cannot be separated while putting section 2 of the mother Act operative i.e. 498A IPC that has been created by section 2 of mother Act (Crl. Act No.46 of 1983). The sections 3 to 7 of the Crl. Act No. 46/1983 gives the directions of law pertaining to section 498A IPC to a public servant (e.g. police officer incharge) to obey as to the way in which he has to conduct himself as such public servant.

Ø The qualifying section of the mother law (Crl.Act 46/1983) has to be made fully operative for both alternative "procedures" followed by the police officer and the magistrate to perform their respective duties as laid under the mother law read with Article 141 and 144 of the Constitution. (Ref.: SC Judgment delivered on

26 October 2005 in U.O.I. & Or. Vs. Raja Mohammed – all concerned authoritees to work to not burden court with unnecessary or frivolous cases - 2005 AIR SCW 5303.) < xml="true" ns="urn:schemas-microsoft-com:office:office" prefix="o" namespace="">

Ø 3. As per the mother Act, complaint by living woman is to be made in the court of the Judicial Magistrate First Class / Metropolitan Magistrate because there is no dowry death. The magistrate will issue summons after being satisfied to take cognizance. In summons case u/s. 498A IPC, the magistrate gives the bail in this family matter to save matrimonial home. The woman has to prove cruelty and make complaint supported with accompanying Affidavit. The Section 6 of Crl. Act No.46/1983 (mother law) is the qualifying section that lays two distinct separate criminal procedures for alleged offence under section 2 of Crl. Act 46/1983 (Sec.498A IPC) i.e. 1^st. being cognizable in case of dowry death of woman and 2^nd. being willful cruelty/harassment to the living woman.

Ø As per Supreme Court of India judgment of 19 July 2005 reported in 2005 (6) SCC 281, amongst other rulings the SC has directed to give stringent punishment to persons found to abuse the criminal process for ulterior purposes, and that the both - dowry death and cruelty/harassment alleged crimes, cannot be treated as same through a straitjacket formula.

Ø This first dowry death law was legislated through Crl. Act No. 46 of 1983 by showing concern for growing dowry deaths. Please read sections 2 to 7 of Crl. Act No.46/1983 corresponding to Sections as follows that cannot be isolated as they show intention of the legislation. Thus the civil and judicial authorities are bound by law to retain the intention of legislation: These are showing the intention of the legislation that was dowry death - mainly the concern for legislation to legally deter dowry deaths (cognizable offence) – section 2 to 7 are related to the alleged offences relating to section 2 of the said mother Act i.e. Crl. Act No. 46 of 1983: -

-498 A of Indian Penal Code Reads as follows:

" 498A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation- For the purpose of this section, "cruelty" means-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." (i.e. INSERTED BY sec.2 of Crl. Act No.46 of 1983)

Ø Section 174. Police to inquire and report on suicide, etc. - Sec. 174(3) of Cr.P.C.

( Inserted by SECTION No. 3 of Crl. Act No.46/1983 - for certain words – 174(3) [When - (i) to (v)]), reads as follows:

"[When – (i) the case involves suicide by woman within seven years of her marriage; or

(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or

(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or

(iv) there is any doubt regarding the cause of death; or

(v) the police officer for any other reason considers it expedient so to do, he shall ]+

+ (inserted by sec.3 of Crl. Act No.46 of 1983)

– related sentence maketh as "expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a …….. render such examination useless."

Ø Sec.176 (1) of Cr.P.C. concerning death in relation to sec. 174(3)((i)(ii) of Cr.P.C . reads as follows:

176. Inquiry by Magistrate into cause of death. - (1) "When any person dies while in the custody of the police or when the case is of the nature referred to in clause (i) or clause (ii) of sub-section 3 of section 174" (vide Sec.4 of Crl. Act No.46 of 1983)

- the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of section 174,

Ø Sec.198A Cr.P.C. reads as follows:

"Section 198A: 198A. Prosecution of offences under section 498A of the Indian Penal Code . -

No Court shall take cognizance of an offence punishable under section 498A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence OR upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by father's or mother's brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption." (Ref.: SECTION. 5 of Crl. Act No.46 of 1983)

Ø Column 4 (i.e. Sub-Section 4) of The First Schedule for Classification of Offences of the Criminal Procedure Code concerning section 498A IPC containing the qualifying section i.e. a Qualifying clause that shows the existence of two alternative kinds of criminal processes to be conducted – one being for dowry death and the other being for cruelty / harassment which is interpreted from the qualifying clause.

The qualifying clause in column 4 of the First Schedule –Classification of Offences in the Criminal Procedure Code with its reference contains - Explanatory note in 2(ii)]clearly mention the condition that qualify for arrest without warrant (in cognizable offence allegation) or no arrest without warrant of magistrate (in non-cognizable offence allegation) reads as follows:

(NB: 498A IPC is a basically apparently a non-cognizable offence as can be seen from column 4

below which puts the condition in which 498A IPC can be USED as cognizable Offence )

Cognizable Offence in respect of 498A IPC is suicide (dowry death) within seven years.

[ THE FIRST SCHEDULE AT THE END OF THE CODE FOR CRIMINAL PROCEDURES 1973 (Cr.P.C.) states as follows:

THE FIRST SCHEDULE

CLASSIFICATION OF OFFENCES

Explanatory Note: (1). In regard to offences under the Indian Penal Code, the enteries to the second and third columns against

a section the number of which is given in the first column are not intended as the definition of, and the

punishment prescribed for, the offence in the Indian Penal Code, but merely as indication of the substance

of the section.

(2). In this Schedule, (i) the expression "Magistrate of the First Class" and "Any Magistrate" include

Metropolitan Magistrates but not Executive Magistrate; (ii) the word "cognizable" stands for

"a police officer may arrest without warrant"; and (iii) the word "non-cognizable" stands

for "a police officer shall not arrest without warrant."]

1. OFFENCES UNDER THE INDIAN PENAL CODE

________________________________________________________________________

1 | 2 | 3 | 4. | 5 | 6.___________

| | | belonging to such class | |

--------------------------------------------------------------------------------------------------------------------------

(See above chart in First Schedule of Cr.P.C. - INSERTED vide SECTION 6 Crl. Act No.46 of 1983).

NB: COLUMN 4 above is also called as qualifying clause to Section 498A IPC.

The said 498A IPC is having in its fold both non-cognizable and cognizable offences classified as per

circumstances of the cruelty i.e. cruelty

and dowry death as per circumstances.

Ø Sec. 113-A of the Indian Evidence Act 1872 reads as :-

" 113A. Presumption as to abetment of suicide by a married woman. - When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation. – For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)." ( INSERTED BY Sec.7 of Crl. Act No.46 of 1983).

UNQUOTE.

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Vol. 1: Basics + SC on 498A IPC http://mulakhrajworldfoundation.googlepages.com/home < xml="true" ns="urn:schemas-microsoft-com:office:office" prefix="o" namespace="">

Vol. 2: Basics of Dual Alternate procedure for living woman and dead woman explained as per crl. Act

No. 46 of 1983. http://mrwfoundationindia.googlepages.com/benign498aipc2

Vol. 3. Why Need of Golden Rule’s application i.e. to implement the intention of Parliament in their

legislation named Criminal (Amendment) Act No. 498A IPC –

http://mrwfoundationindia.googlepages.com/home

Ethical 1: (Ethical duty of legal fraternity, Crl.(Amendment Act No.46/1983) –

http://mrwfoundationindia.googlepages.com/mulkhrajworldfoundation

Vol. F1: (Legal References before Check List) -

http://mrwfoundationindia.googlepages.com/checklist

ETHICAL 1 SAVE MATRIMONIAL HOMES 25 / 26 SEPTEMBER 2007