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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL ORIGINAL JURISDICTION  

WRIT PETITION (CIVIL) NO. 73 OF 2015   

Social Action Forum for Manav Adhikar        ...Petitioner(s)  and another     

VERSUS  

Union of India    

Ministry of Law and Justice and others      …Respondent(s)   

WITH  

CRIMINAL APPEAL NO. 1265 OF 2017  

WRIT PETITION (CRIMINAL) NO. 156 of 2017  

J U D G M E N T    

 Dipak Misra, CJI  

Law, especially the criminal law, intends to control, if not altogether  

remove, the malady that gets into the spine of the society and gradually  

corrodes the marrows of the vertebrae of a large section of the society.  A  

situation arises and the legislature, expressing its concern and  

responsibility, adds a new penal provision with the intention to achieve

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the requisite result.  When a sensitive legal provision is brought into the  

statute book, the victims of the crime feel adequately safe, and if the said  

provision pertains to matrimonial sphere, both the parties, namely, wife  

and husband or any one from the side of the husband is booked for the  

offence and both the sides play the victim card.  The accused persons,  

while asserting as victims, exposit grave concern and the situation of  

harassment is built with enormous anxiety and accentuated vigour.  It is  

propounded in a court of law that the penal provision is abused to an  

unimaginable extent, for in a cruel, ruthless and totally revengeful  

manner, the young, old and relatives residing at distant places having no  

involvement with the incident, if any, are roped in.  Thus, the abuse of the  

penal provision has vertically risen.  When the implementation of law is  

abused by the law enforcing agency, the legislature introduces a  

protective provision as regards arrest.  Needless to say, the courts have  

ample power to grant pre-arrest bail or popularly called anticipatory bail  

and even to quash the criminal proceeding totally to stabilize the lawful  

balance because no court of law remotely conceives of a war between  

the two sexes.  The courts remain constantly alive to the situation that  

though no war takes place, yet neither anger nor vendetta of the  

aggrieved section should take an advantage of the legal provision and  

harass the other side with influence or espousing the principle of  

sympathy. The role of the law enforcing agency or the prosecuting

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agency is sometimes coloured with superlative empathy being totally  

oblivious of the sensation to make maladroit efforts to compete with the  

game of super sensitivity. Such a situation brings in a social disaster that  

has the potentiality to vertically divide the society. The sense of sensitivity  

and the study of social phenomenon are required to be understood with  

objectivity.  In such a situation, it is obligatory on the part of the  

legislature to bring in protective adjective law and the duty of the  

constitutional courts to perceive and scrutinize the protective measure so  

that the social menace is curbed.  We are, in the instant matters,  

focussing on Section 498-A of the Indian Penal Code, 1860 (for short,  

„the IPC‟).  

2. Section 498-A was brought into the statute book in the year 1983.   

The objects and reasons for introducing Section 498-A IPC can be  

gathered from the Statement of Objects and Reasons of Criminal Law  

(Second Amendment) Act of 1983 and read as under :-  

"The increasing number of Dowry Deaths is a matter of  

serious concern. The extent of evil has been commented  

upon by the Joint Committee of the Houses constituted  

to examine the working of Dowry Prohibition Act, 1961.  

Cases of cruelty by the husband and the relatives of the  

husband which culminate in suicide by, or murder of the  

hapless woman concerned, constitute only a small  

fraction of the cases involving such cruelty. It is,  

therefore proposed to amend the Indian Penal Code,  

Code of Criminal Procedure and the Indian Evidence Act  

suitably to deal effectively not only with cases of Dowry  

Death but also cruelty to married woman by their in laws.

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2. The following are the changes that are proposed to be  

made:-  

(i) The Indian Penal Code is proposed to be amended to  

make cruelty to a woman by her husband or any relative  

of her husband punishable with an imprisonment for a  

term which may extend to three years and also with fine.  

Willful conduct of such a nature by the husband or any  

other relative of the husband as is likely to drive the  

woman to commit suicide or cause grave physical or  

mental injury to her, and harassment of woman by her  

husband or by any relative of her husband with a view to  

coercing her or any of her relatives to meet any unlawful  

demand for property would be punishable as cruelty, the  

offence will cognizable if information relating to the  

commission of the offence is given to the officer in  

charge of a Police Station by the victim of the offence or  

a relative of the victim of the offence or, in the absence  

of any such relative, by any public servant authorized in  

this behalf by the State Government. It is also being  

provided that no court shall take cognizance of the  

offence except upon a Police Report or complaint made  

by the victim of the offence or by her father, mother,  

brother, sister or by her 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 (vide  

Clauses 2, 5 and 6 of the Bill.)  

(ii) Provision is being made for inquest by Executive  

Magistrates and for postmortem in all cases where a  

woman has, within seven years of her marriage,  

committed suicide or died in circumstances raising a  

reasonable suspicion that some other person has  

committed an offence. Post-mortem is also being  

provided for in all cases where a married woman has  

died within seven years of her marriage and a relative of  

such woman has made a request in this behalf (vide  

Clauses 3 and 4 of the Bill)  

(iii)The Indian evidence Act, 1872 is being amended to  

provide that where a woman has committed suicide

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within a period of seven years from date of her marriage  

and it is shown that her husband or any relative of her  

husband and subjected her to cruelty, the court may  

presume that such suicide had been abetted by her  

husband or by such relative of her husband (vide Clause  

7 of the Bill)  

3. The Bill seeks to achieve the above objectives."  

3. Regarding the constitutionality of Section 498-A IPC, in Sushil  

Kumar Sharma v. Union of India and others1, it was held by the  

Supreme Court:-  

"Provision of S. 498A of Penal Code is not  unconstitutional and ultra vires. Mere possibility of abuse  of a provision of law does not per se invalidate a  legislation. Hence plea that S. 498A has no legal or  constitutional foundation is not tenable. The object of the  provisions is prevention of the dowry menace. But many  instances have come to light where the complaints are  not bona fide and have been filed with oblique motive. In  such cases acquittal of the accused does not in all cases  wipe out the ignominy suffered during and prior to trial.  Sometimes adverse media coverage adds to the misery.  The question, therefore, is what remedial measures can  be taken to prevent abuse of the well-intentioned  provision. Merely because the provision is constitutional  and intra vires, does not give a licence to unscrupulous  persons to wreck personal vendetta or unleash  harassment. It may, therefore, become necessary for the  legislature to find out ways how the makers of frivolous  complaints or allegations can be appropriately dealt with.  Till then the Courts have to take care of the situation  within the existing frame-work."  

 4. In B.S. Joshi and others v. State of Haryana and another2,  

the Court observed:-  

                                                           1  (2005) 6 SCC 281 : AIR 2005 SC 3100  

2 (2003) 4 SCC 675 : AIR 2003 SC 1386

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"There is no doubt that the object of introducing Chapter  XX-A containing Section 498A in the Indian Penal Code  was to prevent the torture to a woman by her husband or  by relatives of her husband. Section 498A was added with  a view to punishing a husband and his relatives who  harass or torture the wife to coerce her or her relatives to  satisfy unlawful demands of dowry. The hyper-technical  view would be counter productive and would act against  interests of women and against the object for which this  provision was added. There is eveiy likelihood that non- exercise of inherent power to quash the proceedings to  meet the ends of justice would prevent women from  settling earlier. That is not the object of Chapter XXA of  Indian Penal Code."  

 5. In Brij Lal v. Prem Chand  and another3, this Court ruled thus:-    

“It would not be out of place for us to refer here to the  addition of Sections 113-A and 113-B to the Indian  Evidence Act and Sections 498-A and 304-B to the Indian  Penal Code by subsequent amendments. Section 113-A  Evidence Act and 498-A Indian Penal Code have been  introduced in the respective enactments by the Criminal  Law (Second amendment) Act, 1983 (Act 46 of 1983) and  Section 113-B of the Evidence Act and 304-B Indian  Penal Code have been introduced by Act No. 43 of 1986.  The degradation of society due to the pernicious system  of dowry and the unconscionable demands made by  greedy and unscrupulous husbands and their parents and  relatives resulting in an alarming number of suicidal and  dowry deaths by women has shocked the Legislative  conscience to such an extent that the Legislature has  deemed it necessary to provide additional provisions of  law, procedural as well as substantive, to combat the evil  and has consequently introduced Sections 113-A and  113-B in the Indian Evidence Act and Sections 498-A  and 304-B in the Indian Penal Code. By reason of Section  113-A, the Courts can presume that the commission of  suicide by a woman has been abetted by her husband or  relation if two factors are present viz. (1) that the woman  

                                                           3 (1989) 2 SCR 612

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had committed suicide within a period of seven years  from her marriage, and (2) that the husband or relation  had subjected her to cruelty. We are referring to these  provisions only to show that the Legislature has realised  the need to provide for additional provisions in the Indian  Penal Code and the Indian Evidence Act to check the  growing menace of dowry deaths...”  

6. Presently, to the factual score. The instant Petitions have been  

preferred under Article 32 of the Constitution of India seeking directions  

to the respondents to create an enabling environment for married  

women subjected to cruelty to make informed choices and to create a  

uniform system of monitoring and systematically reviewing incidents of  

violence against women under Section 498-A IPC including their  

prevention, investigation, prosecution and rehabilitation of the victims  

and their children at the Central, State and District levels. That apart,  

prayer has been made to issue a writ of mandamus to the respondents  

for a uniform policy of registration of FIR, arrest and bail in cases of  

Section 498-A IPC in consonance with the law of the land, i.e., to  

immediately register FIR on complaint of cruelty and harassment by  

married women as per the IPC.  

7. It has been averred by the petitioners that hundreds of women are  

being subjected to horrific acts of violence often in the guise of domestic  

abuse or to extract more money from the girl's natal family due to  

absence of any uniform system of monitoring and systematic review of

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incidents of violence against married women which has led to dilution of  

the legislative intent behind Section 498-A IPC. And, in the wake of ever  

increasing crimes leading to unnatural deaths of women in marital  

homes, any dilution of Section 498-A IPC is not warranted.  

8. It has been contended that Section 498-A IPC, since its  

introduction, has increasingly been vilified and associated with the  

perception that it is misused by women who frequently use it as a  

weapon against their in-laws. As per the petitioners, though there is  

general complaint that Section 498-A IPC is subject to gross misuse, yet  

there is no concrete data to indicate how frequently the provision has  

been misused. Further, the Court, by whittling down the stringency of  

Section 498-A IPC, is proceeding on an erroneous premise that there is  

misuse of the said provision, whereas in fact misuse by itself cannot be  

a ground to repeal a penal provision or take away its teeth.  

9. It is set forth in the petition that Section 498-A IPC has been  

specifically enacted to protect the vulnerable sections of the society who  

have been victims of cruelty and harassment. The social purpose behind  

Section 498-A IPC is being lost as the rigour of the said provision has  

been diluted and the offence has practically been made bailable by  

reason of various qualifications and restrictions prescribed by various

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decisions of this Court including Rajesh Sharma and others v. State  

of U.P. and another4, a recent pronouncement.   

10. It has also been submitted by the petitioners that the police is  

hesitant to arrest the accused on complaint of married women and the  

same inaction is justified by quoting various judgments, despite the fact  

that Section 498-A IPC discloses a non-bailable offence and sufficient  

checks and balances have been provided in the law itself under Section  

41 CrPC. To prevent arbitrary and necessary arrest, the statute very  

clearly states that the police shall record reasons for effecting arrest as  

well as for not arresting.  

11. The petitioners have also asseverated that there is lack of  

monitoring mechanism to track cases registered under Section 498-A  

IPC including systematic study of the reason of low convictions and due  

to this absence, penal laws have not been able to secure a safe married  

environment to women. This, as per the petitioners, has also resulted in  

rise in cases under Section 498-A IPC because the deterrent effect of  

the said provision is getting diluted. It is also the case of the petitioners  

that investigation by the police of offence under Section 498-A IPC is  

often unprofessional and callous and the investigating officers  

                                                           4  AIR 2017 SC 3869 : 2017 (8) SCALE 313

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perceptibly get influenced by both the parties which results in  

perpetrators escaping conviction.  

12. It is further contended that in many cases under Section 498-A,  

IPC the Court has not considered mental cruelty caused to the woman  

but has concentrated only on any sign of physical cruelty due to which  

the courts do not look into a case if the evidence does not show that the  

woman was physically harassed. This has led the courts to brand the  

woman on many occasions as hyper-sensitive or of low tolerance level.  

13. It has been further averred that the alleged abuse of the penal  

provision is mostly by well-educated women who know that the offence  

is both cognizable and non-bailable and impromptu works on the  

complaint of the woman by placing the man behind the bars, but this  

cannot be a ground for denying the poor and illiterate women the  

protection that is offered by Section 498-A IPC against cruelty, rather  

there is a need to create awareness specifically in the rural areas about  

the laws for protection of women and consequent available remedies in  

case of breach.  

14. It is also set forth in the petition that despite the Dowry Prohibition  

Act, 1961 being passed, the irony still survives perhaps with more  

oxygen, for the social evil of dowry is on the increase and is openly

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practised with pride. It is put forth that women today are still tortured  

and often the court, despite being the ultimate saviour, does not come  

to the rescue of these women as a consequence of which an  

atmosphere of ambivalence prevails and such societal ambivalence  

creates a situation of war between two classes though in actuality the  

offence is relatable to individuals. A sorry state of affairs is  

pronouncedly asserted.  

15.  On the aforesaid bedrock, a prayer in Writ Petition (Civil) No. 73 of  

2015 has been made to have a uniform policy of registration of FIR,  

arrest and bail in cases of Section 498-A IPC.  It is worthy to note here  

that during the pendency of this Writ Petition, the judgment had been  

pronounced in Rajesh Sharma (supra).  The Court in Rajesh Sharma  

(supra) issued the following guidelines:-  

 “19.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.  (c) The Committee members will not be called as  witnesses.

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(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.   (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  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;

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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;  

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.”   

16. In the meanwhile, Writ Petition (Criminal) No. 156 of 2017 had  

been filed. A prayer had been made in the said Writ Petition to  

implement the suggestion that out of three members, at least two  

members should be appointed in the Family Welfare Committee.  When  

this Writ Petition was listed on 13.10.2017, the following order came to  

be passed:-

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 “Mr. Alok Singh, learned counsel for the petitioner though  has a different set of prayers in the writ petition, it  fundamentally requires this Court to implement directions  rendered in Criminal Appeal No.1265 of 2017 [Rajesh  Sharma vs. State of U.P. and Another].  Additionally,  learned counsel would submit that certain lady members,  certain organizations and welfare committees are to be  involved.      At this stage, we are obligated to state that we are  not in agreement with the decision rendered in Rajesh  Sharma (supra) because we are disposed to think that it  really curtails the rights of the women who are harassed  under Section 498A of the Indian Penal Code. That apart,  prima facie, we perceive that the guidelines may be in the  legislative sphere.       Issue notice to the respondent Nos.1 to 3. No notice  need be issued to the respondent No.4. Even if the  petitioner does not take steps, the Registry shall see to it  that the respondents are served. Ms. Indu Malhotra and  Mr. V. Shekhar, learned senior counsel are appointed as  Amicus Curiae to assist the Court in the matter.       List the matter on 29th November, 2017.”  

17.  Mr. V. Shekhar, learned senior counsel, was appointed as Amicus  

Curiae to assist the Court in the matter.   

18. It was submitted by the learned Amicus Curiae that the decision in  

Rajesh Sharma (supra) requires reconsideration, for the said judgment  

confers powers on the Family Welfare Committee to be constituted by  

the District Legal Services Authority which is an extra-judicial committee  

of para legal volunteers/social workers/retired persons/wives of working  

officers/other citizens to look into the criminal complaints under Sections

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498-A IPC in the first instance and further, there has been a direction  

that till such time a report of the committee is received, no arrest should  

be made. It is urged that the constitution of FWC to look into the criminal  

complaints under Section 498-A IPC is contrary to the procedure  

prescribed under the Code of Criminal Procedure.  

19. It is further propounded that the directions in certain paragraphs of  

the judgment in Rajesh Sharma (supra) entrusting the power to dispose  

of the proceedings under Section 498-A IPC by the District and  

Sessions Judge or any other senior judicial officer nominated by him in  

the district in cases where there is settlement, are impermissible, for an  

offence under Section 498-A is not compoundable and hence, such a  

power could not have been conferred on any District and Sessions  

Judge or any senior judicial officer nominated by him. Elaborating the  

said submission, it is canvassed that the High Court is empowered  

under Section 482 CrPC to quash the proceeding if there is a settlement  

between the parties. Learned Amicus Curiae further submitted that the  

recovery of disputed dowry items may not itself be a ground for denial of  

bail which is the discretion of the court to decide the application of grant  

of bail in the facts and circumstances of the case and thus, this  

tantamounts to a direction which is not warranted in law. Criticism has

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been advanced with regard to the direction in paragraph 19(v) which  

states that for persons who are ordinarily residing out of India,  

impounding of passports or issuance of Red Corner Notice should not  

be done in a routine manner. It is urged that if an accused does not join  

the investigation relating to matrimonial/family offence, the competent  

court can issue appropriate directions to the concerned authorities to  

issue Red Corner Notice which will depend on the facts of the case.  

20. Learned Amicus Curiae has further put forth that dispensation of  

personal appearance of outstation family members is unwarranted, for in  

a criminal proceeding, the competent court which deals with application  

of exemption should be allowed to exercise the judicial discretion and  

there should not have been a general direction by this Court.  Certain  

suggestions have been given by the learned Amicus Curiae which we  

shall refer to at the relevant stage.  

21. To appreciate the controversy, it is necessary to understand the  

scope of Section 498-A of IPC. It reads thus:-  

“498-A. 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 wilful conduct which is of such a nature as is likely  to drive the woman to commit suicide or to cause grave

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drastic power of arrest has been emphasised time and  again by the 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.”   

23. The Court, thereafter, has drawn a distinction between the power  

to arrest and justification for the exercise of it and analysed Section 41  

CrPC. Section 41 stipulates when police may arrest without warrant.   

The said provision 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) who commits, in the presence of a police officer, a  cognizable offence;  

(b) against whom a reasonable complaint has been  made, or credible information has been received, or a  reasonable suspicion exists that he has committed a  cognizable offence punishable with imprisonment for a  term which may be less than seven years or which may  extend to seven years whether with or without fine, if the  following conditions are satisfied, namely:--  

(i) the police officer has reason to believe on the  basis of such complaint, information, or suspicion  that such person has committed the said offence;  

(ii) the police officer is satisfied that such arrest is  necessary--  

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

(b) for proper investigation of the offence; or

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(c) to prevent such person from causing the  evidence of the offence to disappear or tampering  with such evidence in any manner; or  

(d) to prevent such person from making any  inducement, threat or promise to any person  acquainted with the facts of the case so as to  dissuade him from disclosing such facts to the Court  or to the police officer; or  

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

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

Provided that a police officer shall, in all cases where the  arrest of a person is not required under the provisions of  this sub-section, record the reasons in writing for not  making the arrest.  

(ba) against whom credible information has been  received that he has committed a cognizable offence  punishable with imprisonment for a term which may  extend to more than seven years whether with or without  fine or with death sentence and the police officer has  reason to believe on the basis of that information that  such person has committed the said offence.  

(c) who has been proclaimed as an offender either under  this Code or by order of the State Government; or  

(d) in whose possession anything is found which may  reasonably be suspected to be stolen property and who  may reasonably be suspected of having committed an  offence with reference to such thing; or  

(e) who obstructs a police officer while in the execution  of his duty, or who has escaped, or attempts to escape,  from lawful custody; or  

(f) who is reasonable suspected of being a deserter from  any of the Armed Forces of the Union; or  

(g) who has been concerned in, or against whom a  reasonable complaint has been made, or credible  information has been received, or a reasonable

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suspicion exists, of his having been concerned in, any  act committed at any place out of India which, if  committed in India, would have been punishable as an  offence, and for which he is, under any law relating to  extradition, or otherwise, liable to be apprehended or  detained in custody in India; or  

(h) who, being a released convict, commits a breach of  any rule made under sub-section (5) of section 356; or  

(i) for whose arrest any requisition, whether written or  oral, has been received from another police officer,  provided that the requisition specifies the person to be  arrested and the offence or other cause for which the  arrest is to be made and it appears therefrom that the  person might lawfully be arrested without a warrant by  the officer who issued the requisition.  

(2) Subject to the provisions of section 42, no person  concerned in a non-cognizable offence or against whom  a complaint has been made or credible information has  been received or reasonable suspicion exists of his  having so concerned, shall be arrested except under a  warrant or order of a Magistrate.”  

24.  Scrutinising the said provision, the Court held as under:-  

“7.1. From a plain reading of the aforesaid provision, it is  evident that a person accused of an 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 his  satisfaction that such person had committed the offence  punishable as aforesaid. A 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

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presence in the court whenever required cannot be ensured.  These are the conclusions, which one may reach based on  facts.  

x     x  x  x  x     7.3. In pith and core, the police officer 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 CrPC.”  

25.  The learned Judges, thereafter, referred to Section 41-A CrPC  

which has been inserted by Section 6 of the Code of Criminal Procedure  

(Amendment) Act, 2008 (5 of 2009). The said provision is to the  

following effect:-  

“41-A. Notice of appearance before police officer.—(1)  The police officer shall, in all cases where the arrest of a  person is not required under the provisions of sub-section (1)  of Section 41, issue a notice directing the person against  whom a reasonable complaint has been made, or credible  information has been received, or a reasonable suspicion  exists that he has committed a cognizable offence, to appear  before him or at such other place as may be specified in the  notice.  

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

22    

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.”  

 Explaining the said provision, it has been ruled:-  

“9. …The aforesaid provision makes it clear that in all cases  where the arrest of a person is not required under Section  41(1) CrPC, 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 officer  is of the opinion that the arrest is necessary. At this stage  also, the condition precedent for arrest as envisaged under  Section 41 CrPC has to be complied and shall be subject to  the same scrutiny by the Magistrate as aforesaid.”   

The Court further went on to say that:-  

“10. We are of the opinion that if the provisions of Section 41  CrPC 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 CrPC for effecting arrest be  discouraged and discontinued.”  

The directions issued in the said case are worthy to note:-  

“11. Our endeavour in this judgment is to ensure that police  officers do not arrest the accused unnecessarily and  Magistrate do not authorise detention casually and

23    

mechanically. In order to ensure what we have observed  above, we give the following directions:  

11.1. All the State Governments to instruct its police officers  not to automatically arrest when a case under Section 498-A  IPC is registered but to satisfy themselves about the  necessity for arrest under the parameters laid down above  flowing from Section 41 CrPC;  

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

11.3. The police officer shall forward the check list duly filled  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 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;  

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 41-A CrPC  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 the 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.”   

26.  The aforesaid decision, as is perceptible, is in accord with the  

legislative provision. The directions issued by the Court are in the nature  

of statutory reminder of a constitutional court to the authorities for proper

24    

implementation and not to behave like emperors considering the notion  

that they can do what they please.  In this context, we may refer with  

profit to a passage from Joginder Kumar v. State of U.P and others6:-  

“20. … 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. The  recommendations of the Police Commission merely reflect  the constitutional concomitants of the fundamental right to  personal liberty and freedom. A person is not liable to arrest  merely on the suspicion of complicity in an offence. There  must be some reasonable justification in the opinion of the  officer effecting the arrest that such arrest is necessary and  justified. Except in heinous offences, an arrest must be  avoided if a police officer issues notice to person to attend  the Station House and not to leave the Station without  permission would do.”    

27. Again, the Court in Joginder Kumar (supra), while voicing its  

concern regarding complaints of human rights pre and after arrest,  

observed thus:-   

“9. A realistic approach should be made in this direction. The  law of arrest is one of balancing individual rights, liberties and  privileges, on the one hand, and individual duties, obligations  and responsibilities on the other; of weighing and balancing  the rights, liberties and privileges of the single individual and  those of individuals collectively; of simply deciding what is  wanted and where to put the weight and the emphasis; of  

                                                           6  (1994) 4 SCC 260

25    

deciding which comes first—the criminal or society, the law  violator or the law abider….”  

28.  In D.K. Basu v. State of W.B.7, after referring to the authorities in  

Joginder Kumar (supra), Nilabati Behera v. State of Orissa and  

others8 and State of M.P. v. Shyamsunder Trivedi and others9, the  

Court laid down certain guidelines and we think it appropriate to  

reproduce the same:-    

“(1) The police personnel carrying out the arrest and  handling the interrogation of the arrestee should bear  accurate, visible and clear identification and name tags with  their designations. The particulars of all such police  personnel who handle interrogation of the arrestee must be  recorded in a register.  

(2) That the police officer carrying out the arrest of the  arrestee shall prepare a memo of arrest at the time of arrest  and such memo shall be attested by at least one witness,  who may either be a member of the family of the arrestee or  a respectable person of the locality from where the arrest is  made. It shall also be countersigned by the arrestee and  shall contain the time and date of arrest.  

(3) A person who has been arrested or detained and is  being held in custody in a police station or interrogation  centre or other lock-up, shall be entitled to have one friend or  relative or other person known to him or having interest in  his welfare being informed, as soon as practicable, that he  has been arrested and is being detained at the particular  place, unless the attesting witness of the memo of arrest is  himself such a friend or a relative of the arrestee.  

(4) The time, place of arrest and venue of custody of an  arrestee must be notified by the police where the next friend  or relative of the arrestee lives outside the district or town  through the Legal Aid Organisation in the District and the  

                                                           7  (1997) 1 SCC 416  

8  (1993) 2 SCC 746  

9  (1995) 4 SCC 262

26    

police station of the area concerned telegraphically within a  period of 8 to 12 hours after the arrest.  

(5) The person arrested must be made aware of this right  to have someone informed of his arrest or detention as soon  as he is put under arrest or is detained.  

(6) An entry must be made in the diary at the place of  detention regarding the arrest of the person which shall also  disclose the name of the next friend of the person who has  been informed of the arrest and the names and particulars of  the police officials in whose custody the arrestee is.  

(7) The arrestee should, where he so requests, be also  examined at the time of his arrest and major and minor  injuries, if any, present on his/her body, must be recorded at  that time. The “Inspection Memo” must be signed both by the  arrestee and the police officer effecting the arrest and its  copy provided to the arrestee.  

(8) The arrestee should be subjected to medical  examination by a trained doctor every 48 hours during his  detention in custody by a doctor on the panel of approved  doctors appointed by Director, Health Services of the State  or Union Territory concerned. Director, Health Services  should prepare such a panel for all tehsils and districts as  well.  

(9) Copies of all the documents including the memo of  arrest, referred to above, should be sent to the Illaqa  Magistrate for his record.  

(10) The arrestee may be permitted to meet his lawyer  during interrogation, though not throughout the interrogation.  

(11) A police control room should be provided at all  district and State headquarters, where information regarding  the arrest and the place of custody of the arrestee shall be  communicated by the officer causing the arrest, within 12  hours of effecting the arrest and at the police control room it  should be displayed on a conspicuous notice board.”  

29. In Lalita Kumari v. Government of Uttar Pradesh and others10,  

the Constitution Bench, referring to various provisions of CrPC, adverted  

                                                           10

(2014) 2 SCC 1

27    

to the issue of conducting a preliminary enquiry. Eventually, the Court  

opined that the scope of preliminary enquiry is not to verify the veracity  

or otherwise of the information received but only to ascertain whether  

the information reveals any cognizable offence and, thereafter,  

proceeded to state thus:-  

“120.6. As to what type and in which cases preliminary  inquiry is to be conducted will depend on the facts and  circumstances of each case. The category of cases in which  preliminary inquiry may be made are as under:  

(a) Matrimonial disputes/family disputes  

(b) Commercial offences  

(c) Medical negligence cases  

(d) Corruption cases  

(e) Cases where there is abnormal delay/laches in  initiating criminal prosecution, for example, over 3 months‟  delay in reporting the matter without satisfactorily explaining  the reasons for delay.  

The aforesaid are only illustrations and not exhaustive of  all conditions which may warrant preliminary inquiry.”   

30.  From the aforesaid, it is quite vivid that the Constitution Bench had  

suggested that preliminary enquiry may be held in matrimonial/family  

disputes.  

31. In Rajesh Sharma (supra), as is noticeable, the Court had  

referred to authorities in Arnesh Kumar (supra) and Lalita Kumari  

(supra) and observed that:-  

“16. Function of this Court is not to legislate but only to  interpret the law. No doubt in doing so laying down of norms

28    

is sometimes unavoidable.11 Just and fair procedure being  part of fundamental right to life,12 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 non-compoundable case of private  nature, if continuing the proceedings is found to be  oppressive. 13  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 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.”  

 32. After so stating, the directions have been issued which we have  

reproduced in paragraph 15 hereinabove.  

33. On a perusal of the aforesaid paragraphs, we find that the Court  

has taken recourse to fair procedure and workability of a provision so  

                                                           11

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 v. Raghubir Singh (d) by Lrs. : (1989)  2 SCC 754, Para 7;  Dayaram v. Sudhir Batham : (2012) 1 SCC 333  12

State of Punjab v. Dalbir Singh : (2012) 3 SCC 346, Paras 46, 52 & 85  13

Gian Singh v. State of Punjab : (2012) 10 SCC 303, Para 61

29    

that there will be no unfairness and unreasonableness in implementation  

and for the said purpose, it has taken recourse to the path of  

interpretation. The core issue is whether the Court in Rajesh Sharma  

(supra) could, by the method of interpretation, have issued such  

directions. On a perusal of the directions, we find that the Court has  

directed constitution of the Family Welfare Committees by the District  

Legal Services Authorities and prescribed the duties of the Committees.  

The prescription of duties of the Committees and further action therefor,  

as we find, are beyond the Code and the same does not really flow from  

any provision of the Code.  There can be no denial that there has to be  

just, fair and reasonable working of a provision. The legislature in its  

wisdom has made the offence under Section 498-A IPC cognizable and  

non-bailable. The fault lies with the investigating agency which  

sometimes jumps into action without application of mind. The directions  

issued in Arnesh Kumar (supra) are in consonance with the provisions  

contained in Section 41 CrPC and Section 41-A CrPC. Similarly, the  

guidelines stated in Joginder Kumar (supra) and  D.K. Basu (supra)  

are within the framework of the Code and the power of superintendence  

of the authorities in the hierarchical system of the investigating agency.  

The purpose has been to see that the investigating agency does not  

abuse the power and arrest people at its whim and fancy.  

30    

34. In  Rajesh Sharma (supra), there is introduction of a third agency  

which has nothing to do with the Code and that apart, the Committees  

have been empowered to suggest a report failing which no arrest can be  

made. The directions to settle a case after it is registered is not a correct  

expression of law.  A criminal proceeding which is not compundable can  

be quashed by the High Court under Section 482 CrPC. When  

settlement takes place, then both the parties can file a petition under  

Section 482 CrPC and the High Court, considering the bonafide of the  

petition, may quash the same. The power rests with the High Court. In  

this regard, we may reproduce a passage from a three-Judge Bench in  

Gian Singh (supra). In the said case, it has been held that:-    

“61. … Inherent power is of wide plenitude with no statutory  limitation but it has to be exercised in accord with the  guideline engrafted in such power viz.: (i) to secure the ends  of justice, or (ii) to prevent abuse of the process of any court.  In what cases power to quash the criminal proceeding or  complaint or FIR may be exercised where the offender and  the victim have settled their dispute would depend on the  facts and circumstances of each case and no category can  be prescribed. However, before exercise of such power, the  High Court must have due regard to the nature and gravity of  the crime. Heinous and serious offences of mental depravity  or offences like murder, rape, dacoity, etc. cannot be fittingly  quashed even though the victim or victim‟s family and the  offender have settled the dispute. Such offences are not  private in nature and have a serious impact on society.  Similarly, any compromise between the victim and the  offender in relation to the offences under special statutes like  the Prevention of Corruption Act or the offences committed  by public servants while working in that capacity, etc.; cannot  provide for any basis for quashing criminal proceedings  involving such offences. But the criminal cases having

31    

overwhelmingly and predominatingly civil flavour stand on a  different footing for the purposes of quashing, particularly the  offences arising from commercial, financial, mercantile, civil,  partnership or such like transactions or the offences arising  out of matrimony relating to dowry, etc. or the family disputes  where the wrong is basically private or personal in nature  and the parties have resolved their entire dispute. In this  category of cases, the High Court may quash the criminal  proceedings if in its view, because of the compromise  between the offender and the victim, the possibility of  conviction is remote and bleak and continuation of the  criminal case would put the accused to great oppression and  prejudice and extreme injustice would be caused to him by  not quashing the criminal case despite full and complete  settlement and compromise with the victim.”  

  35. Though Rajesh Sharma (supra) takes note of Gian Singh (supra),  

yet it seems to have it applied in a different manner.  The seminal issue  

is whether these directions could have been issued by the process of  

interpretation. This Court, in furtherance of a fundamental right, has  

issued directions in the absence of law in certain cases, namely,  

Lakshmi Kant Pandey v. Union of India14, Vishaka and others v.  

State of Rajasthan and others15 and Common Cause  (A Registered  

Society)  v. Union of India and another16  and some others. In the  

obtaining factual matrix, there are statutory provisions and judgments in  

the field and, therefore, the directions pertaining to constitution of a  

Committee and conferment of power on the said Committee is  

14  (1984) 2 SCC 244  

15  (1997) 6 SCC 241  

16  (2018)  5 SCC 1

32    

erroneous. However, the directions pertaining to Red Corner Notice,   

clubbing of cases and postulating that recovery of disputed dowry items  

may not by itself be a ground for denial of bail would stand on a different  

footing. They are protective in nature and do not sound a discordant  

note with the Code. When an application for bail is entertained, proper  

conditions have to be imposed but recovery of disputed dowry items may  

not by itself be a ground while rejecting an application for grant of bail  

under Section 498-A IPC. That cannot be considered at that stage.   

Therefore, we do not find anything erroneous in direction Nos. 19(iv) and  

(v). So far as direction No. 19(vi) and 19(vii) are concerned, an  

application has to be filed either under Section 205 CrPC or Section 317  

CrPC depending upon the stage at which the exemption is sought.  

36. We have earlier stated that some of the directions issued in  

Rajesh Sharma (supra) have the potential to enter into the legislative  

field. A three-Judge Bench in Suresh Seth v. Commissioner, Indore  

Municipal Corporation and others17 ruled thus:-    

“5. … In our opinion, this is a matter of policy for the elected  representatives of people to decide and no direction in this  regard can be issued by the Court. That apart this Court  cannot issue any direction to the legislature to make any  particular kind of enactment. Under our constitutional  scheme Parliament and Legislative Assemblies exercise  sovereign power to enact laws and no outside power or  authority can issue a direction to enact a particular piece of  legislation. In Supreme Court Employees’ Welfare Assn. v.  

                                                           17

(2005) 13 SCC 287

33    

Union of India18 (SCC para 51) it has been held that no court  can direct a legislature to enact a particular law. Similarly,  when an executive authority exercises a legislative power by  way of a subordinate legislation pursuant to the delegated  authority of a legislature, such executive authority cannot be  asked to enact a law which it has been empowered to do  under the delegated legislative authority. …”  

37.   Another three-Judge Bench in Census Commissioner and  

others v. R. Krishnamurthy 19 , after referring to N.D. Jayal and  

another v. Union of India and others20, Rustom Cavasjee Cooper v.  

Union of India21, Premium Granites  and another v. State of T.N. and  

others 22 , M.P. Oil Extraction and another v. State of M.P. and  

others23, State of Madhya Pradesh v. Narmada Bachao Andolan and  

another24 and State of Punjab and others v. Ram Lubhaya Bagga  

and others25,  opined:-    

“33. From the aforesaid pronouncement of law, it is clear as  noon day that it is not within the domain of the courts to  embark upon an enquiry as to whether a particular public  policy is wise and acceptable or whether a better policy  could be evolved. The court can only interfere if the policy  framed is absolutely capricious or not informed by reasons  or totally arbitrary and founded ipse dixit offending the basic  requirement of Article 14 of the Constitution. In certain  matters, as often said, there can be opinions and opinions  but the court is not expected to sit as an appellate authority  on an opinion.”  

                                                           18

(1989) 4 SCC 187  19

(2015) 2 SCC 796  20

(2004) 9 SCC 362  21

(1970) 1 SCC 248  22

(1994) 2 SCC 691  23

(1997) 7 SCC 592  24

(2011) 7 SCC 639  25

(1998) 4 SCC 117  

34    

38. In the aforesaid analysis, while declaring the directions pertaining  

to Family Welfare Committee and its constitution by the District Legal  

Services Authority and the power conferred on the Committee is  

impermissible. Therefore, we think it appropriate to direct that the  

investigating officers be careful and be guided by the principles stated in  

Joginder Kumar (supra), D.K. Basu (supra),  Lalita Kumari (supra)  

and Arnesh Kumar (supra). It will also be appropriate to direct the  

Director General of Police of each State to ensure that investigating  

officers who are in charge of investigation of cases of offences under  

Section 498-A IPC should be imparted rigorous training with regard to  

the principles stated by this Court relating to arrest.    

39. In view of the aforesaid premises, the direction contained in  

paragraph 19(i) as a whole is not in accord with the statutory framework  

and the direction issued in paragraph 19(ii) shall be read in conjunction  

with the direction given hereinabove.    

40. Direction No. 19(iii) is modified to the extent that if a settlement is  

arrived at, the parties can approach the High Court under Section 482 of  

the Code of Criminal Procedure and the High Court, keeping in view the  

law laid down in Gian Singh (supra), shall dispose of the same.  

41. As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are  

concerned, they shall be governed by what we have stated in paragraph  

35.

35    

42. With the aforesaid modifications in the directions issued in Rajesh  

Sharma (supra), the writ petitions and criminal appeal stand disposed  

of.  There shall be no order as to costs.  

                                                                   …..………………………..,CJI  

(Dipak Misra)     

                                                                 …..…………………………..,J  

(A.M. Khanwilkar)    

                                                                ..………………………….….,J  

(Dr. D.Y. Chandrachud)   

New Delhi;  September  14 , 2018.