1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION  CRIMINAL APPEAL NO. 1265 OF 2017

[Arising out of Special Leave Petition (Crl.) No.2013 of 2017]

Rajesh Sharma & ors. …Appellants Versus

State of U.P. & Anr. …Respondents

J U D G M E N T Adarsh Kumar Goel, J.

1. Leave granted.  

2. The question which has arisen in this appeal is whether any

directions are called for to prevent the misuse of Section 498A, as

acknowledged  in  certain  studies  and  decisions.   The  Court

requested  Shri  A.S.  Nadkarni,  learned  ASG  and  Shri  V.V.  Giri,

learned senior counsel to assist the Court as amicus.  We place on

record our gratitude for the assistance rendered by learned ASG

Shri Nadkarni and learned senior counsel Shri Giri who in turn was

2

ably assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel

and Ms. Svadha Shanker.   

3. Proceedings  have  arisen  from  complaint  dated  2nd

December, 2013 filed by respondent No.2 wife of appellant No.1.

Appellants 2 to 5 are the parents and siblings of appellant No.1.

The complainant alleged that she was married to appellant No.1

on   28th November,  2012.   Her  father  gave  dowry  as  per  his

capacity but the appellants were not happy with the extent of the

dowry.   They  started  abusing  the  complainant.   They  made  a

demand of  dowry  of  Rs.3,00,000/-  and a  car  which  the  family

could  not  arrange.   On   10th November,  2013,  appellant  No.1

dropped  the  complainant  at  her  matrimonial  home.   She  was

pregnant and suffered pain in the process and her pregnancy was

terminated.   On the  said  version,  and further  version that  her

stridhan was  retained,  appellant  No.1  was  summoned  under

Section 498A and Section 323 IPC.  Appellants 2 to 5 were not

summoned.  Order dated 14th July, 2014 read as follows:  

“After  perusal  of  the  file  and  the  document  brought  on record.   It  is  clear that  the husband Shri  Rajesh Sharma demanded car and three lacs rupees and in not meeting the demand.  It appears that he has tortured the complainant.

3

So  far  as  torture  and  retaining  of  the  stri  dhan  and demanding 50,000 and a gold chain and in not meeting the demand  the  torture  is  attributable  against  Shri  Rajesh Sharma.  Rajesh Sharma appears to be main accused.  In the  circumstances,  rest  of  the  accused  Vijay  Sharma, Jaywati  Sharma,  Praveen  Sharma  and  Priyanka  Sharma have  not  committed  any  crime  and  they  have  not participated  in  commission  of  the  crime.   Whereas,  it appears  that  Rajesh  Sharma  has  committed  an  offence under Section 498A, 323 IPC and read with section 3 / 4 DP act appears to have prima facie made out.   Therefore,  a summon be issued against him.”    

4. Against  the  above  order,  respondent  No.2  preferred  a

revision petition and submitted that appellants 2 to 5 should also

have been summoned.  The said petition was accepted by the

Additional Sessions Judge, Jaunpur vide order dated 3rd July, 2015.

The trial court was directed to take a fresh decision in the matter.

Thereafter,  the  trial  court  vide order  dated  18th August,  2015

summoned appellants 2 to 5 also. The appellants approached the

High  Court  under  Section  482  CrPC  against  the  order  of

summoning.  Though the matter was referred to the mediation

centre, the mediation failed. Thereafter, the High Court found no

ground to interfere with the order of summoning and dismissed

the petition. Hence this appeal.  

4

5. Main contention raised in support of this appeal is that there

is need to check the tendency to rope in all family members to

settle  a  matrimonial  dispute.   Omnibus  allegations  against  all

relatives of the husband cannot be taken at face value when in

normal course it may only be the husband or at best his parents

who may be accused of demanding dowry or causing cruelty.  To

check  abuse  of  over  implication,  clear  supporting  material  is

needed to proceed against  other  relatives  of  a  husband.   It  is

stated that respondent No.2 herself  left  the matrimonial home.

Appellant No.2, father of appellant No.1, is a retired government

employee.   Appellant  No.3  is  a  house wife.   Appellant  No.4  is

unmarried brother and appellant No.5 is unmarried sister who is a

government  employee.   Appellants   2  to  5  had  no  interest  in

making any demand of dowry.   

6. Learned  counsel  for  respondent  No.2  supported  the

impugned order and the averments in the complaint.   

7. Learned ASG submitted that Section 498A was enacted to

check  unconscionable  demands  by  greedy  husbands  and  their

5

families  which  at  times  result  in  cruelty  to  women  and  also

suicides.  He, however, accepted that there is a growing tendency

to abuse the said provision to rope in all the relatives including

parents of advanced age, minor children, siblings, grand-parents

and uncles on the strength of vague and exaggerated allegations

without there being any verifiable evidence of physical or mental

harm or  injury.   At  times,  this  results  in  harassment and even

arrest of innocent family members, including women and senior

citizens.  This may hamper any possible reconciliation and reunion

of a couple.  Reference has been made to the statistics from the

Crime Records Bureau (CRB) as follows:  

“9.  That  according  to  Reports  of  National  Crime Record  Bureau  in  2005,  for  a  total  58,319  cases reported under Section 498A IPC, a total of 1,27,560 people  were  arrested,  and  6,141  cases  were declared false on account of mistake of fact or law. While in 2009 for a total 89,546 cases reported, a total  of  1,74,395  people  were  arrested  and  8,352 cases were declared false on account of mistake of fact or law.   

10. That according to Report of Crime in India, 2012 Statistics, National Crime Records Bureau, Ministry of Home Affairs  showed that  for  the year  of  2012,  a total of 197,762 people all across India were arrested under Section 498A, Indian Penal Code. The Report further shows that approximately a quarter of those arrested were women that is 47,951 of the total were perhaps mother or sisters of the husband.  However

6

most surprisingly the rate of charge-sheet filing for the year  2012,  under Section 498A IPC was at  an exponential height of 93.6% while the conviction rate was at a staggering low at 14.4% only.  The Report stated that as many as 3,72,706 cases were pending trial  of  which  3,17,000  were  projected  to  be acquitted.   

11. That according to Report of Crime in India, 2013, the National Crime Records Bureau further pointed out that of 4,66,079 cases that were pending in the start  of  2013,  only  7,258  were  convicted  while 38,165 were acquitted  and 8,218 were withdrawn. The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%.”   

8. Referring  to  Sushil  Kumar  Sharma  versus  Union  of

India1, Preeti Gupta versus State of Jharkhand2, Ramgopal

versus  State  of  Madhya  Pradesh3,  Savitri  Devi  versus

Ramesh Chand4, it was submitted that misuse of the provision is

judicially acknowledged and there is need to adopt measures to

prevent such misuse.  The Madras High Court in M.P. No.1 of 2008

in  Cr.  O.P.  No.1089  of  2008  dated  4th August,  2008  directed

issuance of following guidelines:

“It  must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition

1  (2005) 6 SCC 281 2  (2010) 7 SCC 667 3  (2010) 13 SCC 540 4  ILR (2003) I Delhi 484

7

Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our  experience  shows  that,  apart  from  the  husband,  all family  members  are  implicated and dragged to  the police stations.   Though  arrest  of  those  persons  is  not  at  all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant.  By suitably dealing with such matters,  the injury to innocents could  be  avoided  to  a  considerable  extent  by  the Magistrates, but, if the Magistrates themselves accede to the bare  requests  of  the  police  without  examining  the  actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever.  The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers.  The  ultimate  object  of  every  legal  system  is  to punish the guilty and protect the innocents.”  

9. Delhi  High  Court  vide order  dated  4th August,  2008  in

Chander Bhan versus State5 in Bail Application No.1627/2008

directed issuance of following guidelines :

“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.  

5  (2008) 151 DLT 691

8

(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  endavour  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.”  

10. In  Arnesh  Kumar  versus  State  of  Bihar6,  this  Court

directed as follows :

“11.1All 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;

11.2 All  police  officers  be  provided  with  a  check  list containing specified sub-clauses under Section 41(1)(b)(ii);

6  (2014) 8 SCC 273

9

11.3 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 detention;

11.4 The  Magistrate  while  authorizing  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 authorize detention;

11.5 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;

11.6 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;

11.7 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.  

11.8 Authorising  detention  without  recording  reasons  as aforesaid by the judicial  Magistrate concerned shall be liable for departmental action by the appropriate High Court.”

10

11. Learned ASG suggested that there must be some preliminary

inquiry  on  the  lines  of  observations  in  Lalita  Kumari  versus

Government of Uttar Pradesh7.  Arrest of a relative other than

husband  could  only  be  after  permission  from  the  concerned

Magistrate.  There should be no arrest of relatives aged above 70

years.   Power  of  the  police  to  straight  away  arrest  must  be

prohibited.  While granting permission, the court must ascertain

that  there  is  prima facie  material  of  the  accused having done

some  overt  and  covert  act.   The  offence  should  be  made

compoundable and bailable.  The role of each accused must be

specified  in  the  complaint  and  the  complaint  must  be

accompanied by a signed affidavit.  The copy of the preliminary

enquiry report should be furnished to the accused.

12. Shri V. Giri, learned senior counsel assisted by advocates Ms.

Uttara  Babbar,  Ms.  Pragya  Baghel  and  Ms.  Svadha  Shanker

submitted that arrest in an offence under Section 498A should be

only  after  recording  reasons  and  express  approval  from  the

Superintendent  of  Police.   In  respect  of  relatives  who  are

ordinarily residing outside India, the matter should proceed only if

7  (2014) 2 SCC 1

11

the IO is convinced that arrest is necessary for fair investigation.

In such cases impounding of passport or issuance of red corner

notice should be avoided. Procedure under Section 14 of the

Protection  of  Women  from  Domestic  Violence  Act,  2005,  of

counseling should  be made mandatory  before  registration of  a

case under Section 498A.

13. We have given serious consideration to the rival submissions

as  well  as  suggestions  made by learned ASG and Shri  V.  Giri,

Senior  Advocate assisted by Advocates  Ms.  Uttara  Babbar,  Ms.

Pragya Baghel and Ms. Svadha Shanker.  We  have  also

perused  243rd Law  Commission  Report  (August,  2012),  140th

Report  of  the  Rajya  Sabha Committee  on  Petition  (September,

2011) as well as several decisions to which our attention has been

invited.

14. Section 498A was inserted in the statute with the laudable

object  of  punishing  cruelty  at  the  hands  of  husband  or  his

relatives  against  a  wife  particularly  when  such  cruelty  had

potential to result in suicide or murder of a woman as mentioned

in the Statement of Objects and Reasons of the Act 46 of 1983.

12

The expression ‘cruelty’  in  Section 498A covers  conduct  which

may drive the women to commit suicide or cause grave injury

(mental or physical) or danger to life or harassment with a view to

coerce her to meet unlawful demand.8  It is a matter of serious

concern that large number of cases  continue to be filed under

Section 498A alleging harassment of married women.  We have

already referred to some of the statistics from the Crime Records

Bureau.  This Court had earlier noticed the fact that most of such

complaints are filed in the heat of the moment over trivial issues.

Many of such complaints are not bona fide. At the time of filing of

the complaint, implications and consequences are not visualized.

At times such complaints lead to uncalled for harassment not only

to the accused but also to the complainant. Uncalled for arrest

may  ruin  the  chances  of  settlement.   This  Court  had  earlier

observed that a serious review of the provision was warranted9.

The matter  also  appears  to  have been considered by the Law

Commission,  the  Malimath  Committee,  the  Committee  on

Petitions in the Rajya Sabha, the Home Ministry, which have been

referred to in the earlier part of the Judgment.  The abuse of the

8  Explanation to Section 498A 9  Preeti Gupta (supra)

13

provision was also noted in the judgments of this Court referred to

earlier.  Some High Courts have issued directions to check such

abuse.  In  Arnesh Kumar (supra) this Court gave directions to

safeguard uncalled for arrests.  Recommendation has also been

made  by  the  Law  Commission  to  make  the  offence

compoundable.  15. Following  areas  appear  to  require  remedial

steps :-

i) Uncalled  for  implication  of  husband  and  his  relatives and arrest.

ii) Continuation  of  proceedings  in  spite  of  settlement between  the  parties  since  the  offence  is non-compoundable and uncalled for hardship to parties on that account.

16. Function of this Court is not to legislate but only to interpret

the law.  No doubt in doing so laying down of norms is sometimes

unavoidable.10  Just and fair procedure being part of fundamental

right to life,11  interpretation is required to be placed on a penal

provision so that its working is not unjust, unfair or unreasonable.

The  court  has  incidental  power  to  quash  even  a

10  Sahara India Real Estate Corporation Limited v. Securities and Exchange  Board of India (2012) 10 SCC 603- para 52, SCBA v. Union of India (1998) 4 SCC 409- para  47, Union of India vs. Raghubir Singh (d) by Lrs. (1989) 2 SCC 754- para 7, Dayaram vs.  Sudhir Batham (2012) 1 SCC 333 11  State of Punjab vs. Dalbir Singh (2012) 3 SCC 346- para 46,52 & 85, (2014) 4  SCC 453- para-21

14

non-compoundable  case  of  private  nature,  if  continuing  the

proceedings  is  found  to  be  oppressive.12   While  stifling  a

legitimate prosecution is against public policy, if the proceedings

in an offence of private nature are found to be oppressive, power

of quashing is exercised.   

17. We have considered the background of the issue and also

taken into account the 243rd Report of the Law Commission dated

30th August, 2012, 140th Report of the Rajya Sabha Committee on

Petitions (September, 2011) and earlier  decisions of this Court.

We  are  conscious  of  the  object  for  which  the  provision  was

brought into the statute.  At the same time, violation of human

rights of innocent cannot be brushed aside.  Certain safeguards

against uncalled for arrest or insensitive investigation have been

addressed by this Court.  Still, the problem continues to a great

extent.

18. To remedy the situation, we are of the view that involvement

of civil society in the aid of administration of justice can be one of

the steps,  apart from the investigating officers and the concerned

12  Gian Singh vs. State of Punjab (2012) 10 SCC 303- para-61, (2014) 5 SCC  364- para -14

15

trial  courts  being  sensitized.  It  is  also  necessary  to  facilitate

closure  of  proceedings  where  a  genuine  settlement  has  been

reached instead of parties being required to move High Court only

for that purpose.

19. Thus,  after  careful  consideration  of  the  whole  issue,  we

consider it fit to give following directions :-

i) (a) In every district one or more Family Welfare

Committees  be  constituted  by  the  District  Legal

Services Authorities preferably comprising of three

members.  The constitution and working of such

committees may be reviewed from time to time

and at  least  once in  a  year  by  the  District  and

Sessions  Judge  of  the  district  who  is  also  the

Chairman of the District Legal Services Authority.  

(b)  The  Committees  may  be  constituted  out  of

para  legal  volunteers/social  workers/retired

persons/wives  of  working  officers/other  citizens

who may be found suitable and willing.

16

(c) The Committee members will not be called as

witnesses.

(d)  Every   complaint   under   Section   498A

received  by  the  police  or  the  Magistrate  be

referred  to  and  looked  into  by  such  committee.

Such  committee  may  have  interaction  with  the

parties personally  or  by means of   telephone or

any  other  mode  of  communication  including

electronic communication.   

(e)  Report  of  such  committee  be  given  to  the

Authority by whom the complaint is referred to it

latest within one month from the date of receipt of

complaint.  

(f) The committee may give its brief report about

the factual aspects and its opinion in the matter.   

(g)  Till  report  of  the  committee  is  received,  no

arrest should normally be effected.

17

(h)  The  report  may  be  then  considered  by  the

Investigating Officer or the Magistrate on its own

merit.   

(i) Members of the committee may be given such

basic  minimum  training  as  may  be  considered

necessary  by  the  Legal  Services  Authority  from

time to time.   

(j) The Members of the committee may be given

such honorarium as may be considered viable.   

(k)  It  will  be  open  to  the  District  and  Sessions

Judge to utilize the cost fund wherever considered

necessary and proper.   

ii) Complaints  under  Section  498A  and  other

connected offences may be investigated only by a

designated Investigating Officer of the area.  Such

designations may be made within one month from

today.  Such designated officer may be required to

undergo training for such duration (not less than

one week) as may be considered appropriate.  The

18

training  may  be  completed  within  four  months

from today;

iii) In cases where a settlement is reached, it will be

open  to  the  District  and  Sessions  Judge  or  any

other senior Judicial Officer nominated by him in

the district to dispose of the proceedings including

closing  of  the  criminal  case  if  dispute  primarily

relates to matrimonial discord;

iv) If a bail application is filed with at least one clear

day’s notice to the Public Prosecutor/complainant,

the same may be decided as far as possible on the

same day.  Recovery of disputed dowry items may

not  by  itself   be  a  ground  for  denial  of  bail  if

maintenance or other rights of wife/minor children

can otherwise be protected.  Needless to say that

in dealing with bail matters, individual roles, prima

facie  truth  of  the  allegations,  requirement  of

further arrest/ custody and interest of justice must

be carefully weighed;

19

v) In  respect  of  persons  ordinarily  residing  out  of

India impounding of passports or issuance of Red

Corner Notice should not be a routine;

vi) It will be open to the District Judge or a designated

senior  judicial  officer  nominated  by  the  District

Judge  to  club  all  connected  cases  between  the

parties arising out of matrimonial disputes so that

a holistic view is taken by the Court to whom all

such cases are entrusted; and  

vii) Personal  appearance  of  all  family  members  and

particularly  outstation  members  may  not  be

required  and  the  trial  court  ought  to  grant

exemption  from  personal  appearance  or  permit

appearance  by  video  conferencing  without

adversely affecting progress of the trial.    

viii)   These directions will  not apply to the offences

involving tangible physical injuries or death.  

20. After seeing the working of the above arrangement for six

months  but  latest  by  March  31,  2018,  National  Legal  Services

20

Authority may give a report about need for any change in above

directions or for any further directions.  The matter may be listed

for consideration by the Court in April, 2018.

21. Copies  of  this  order  be  sent  to  National  Legal  Services

Authority,  Director  General  of  Police  of  all  the  States  and  the

Registrars of all the High Courts for further appropriate action.   

22. It will be open to the parties in the present case to approach

the concerned trial or other court for further orders in the light of

the above directions.

…………………………………….J. (Adarsh Kumar Goel)

…………………………………….J. (Uday Umesh Lalit)

New Delhi; 27th July, 2017.