“Woman lodges a complaint under section 498A, husband and in-laws arrested.”
A newspaper headline such as above is sure to garner sympathy for the victim from the public and the media. But rarely do we ponder over who might be the actual victim here – the wife or the husband? Recently, several cases, where the husband and his family were wrongly accused and trapped under the section 498A of Indian Penal Code, have come into the public eye. Does this mean that section 498A is being misused? Perhaps yes, because there have been horror stories of legal extortions, baseless claims and blackmail by women under this section.
One of these stories is of a Pune based couple, Romesh Marathe and his wife Supriya (names changed), who had married in March 2001. Due to marital disputes with the wife wanting to stay separately, Romesh filed for a divorce in June 2003. But a month later, Romesh along with his mother and three other relatives, were arrested and sent to the custody in a dowry harassment case filed by Supriya. Due to lack of any evidence, Romesh and his near relations were proven innocent by a magistrate’s court. Later, Romesh again made a divorce plea on the grounds of cruelty by the wife. The family court did not grant the divorce, stating that one singular complaint by wife can not be cited as cruelty. Romesh moved to the Bombay High Court, which accepted Romesh’s contention that the false allegations by wife had caused him mental cruelty and entitled him to a divorce.
Like Romesh, there are several other innocent married men who are facing the brunt of abuse of the powers under the section 498A. Primarily, an anti-dowry law formed to protect women, section 498A is now considered a deleterious legal weapon in a woman’s armour. In fact, according to “Crime in India 2012 Statistics” published by the National Crime Records Bureau, section 498A itself accounted for 6% of all arrests, though the conviction rate was merely 15%!
In order to prevent illegal arrests or similar threats of the section 498A accused, the Supreme Court in its latest judgement (2nd July, 2014), has enforced a 9 point checklist for police under section 41 of the Criminal Procedure Code. The checklist prescribes Do’s and Don’t’s, to be referred to by the police before arresting the accused. Further, in case the arrest is made, then the magistrate should allow the detention only if the checklist validates so, or else he can authorize the release of the accused.
This new development in the context of section 498A was long overdue and is a welcome news of relief. We can only hope that there are no further legal loopholes or new judgements to bypass the section 41 and give undue advantage to the section 498A.
Except for the time when a cheque bounces due to lack of funds or due to loss in a lot of cases, it is used by the drawer to escape his debt or liability. In such a situation it is an instrument of deception and should have been made punishable offense; however, even the 1988 amendment in Section 138 of Negotiable Instruments Act does not talk about it. In lack of any provision for this, it has to be seen what are the cases and judgments that deliver some points on how to deal with stopped payments.
A landmark case regarding the stopped cheque came to the Punjab and Haryana High Court in the case of Abdul Samod v. Satya Narayan Mahavir wherein the court analyzed section 138 of the Act. In the case the honorable Mr. Justice A.P. Chowdhury stated that there are 5 ingredients, which must be fulfilled.
According to him,
- Firstly, the cheque is drawn on a bank for the discharge of a legally enforceable debt or other liability;
- Secondly, the cheque has returned by the bank unpaid;
- Thirdly, the cheque is returned unpaid because the amount available in that account is insufficient for making the payment of the cheque;
- Fourthly, the payee gives a notice to the drawer claiming the amount within 15 days of the receipt of the information by the Bank and;
- Finally, the drawer fails to make payment within 15 days of the receipt of notice.
The Punjab and Haryana High Court also gave a landmark judgment in the case of M. M. Malik v. Prem Kumar Goyal wherein it elaborated and analyzed the section 198 of the Negotiable Instrument Act. The honorable court held that the cause of action will be complete when the drawer of the cheque fails to make payment within 15 days of the receipt of the notice contemplated by proviso (b) and that the offence shall be deemed to have been committed only from the date when the notice period expires.
After analyzing the sections 138 and 142, which were introduced by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988), the court had construed the endorsement “refer to drawer” as the bankers inability to honor the cheque for want of funds in the account of the drawer. Moving further the honorable court observed that as far as the jurisdiction was concerned, the principle that the ‘debtor has to find the creditor” would apply and that the court within whose jurisdiction the creditor is located will have jurisdiction to entertain the complaint.
Stop payment of cheque could be punishable under Section 138 of the Negotiable Instruments Act, 1881
The latest decision from the Bombay High Court’s Aurangabad bench says that even stop payment of cheque could be punishable under Section 138 of the Negotiable Instruments Act, 1881. Thus, it looks the silence that was seen in the section 138 has been given voice as Justice TV Nalawade observed while citing a Supreme Court verdict that if due to stopping of payment a cheque is dishonored, that case is also covered under Section 138 of the Negotiable Instruments Act, if other requirements of that Section are complied with. This according to him is a settled position of law now.
The case was from Hemant Chemicals against Riverside Industries and its four directors wherein petitioner Swapnil Jakhete of Hemant Chemicals had appealed that he was duped by the defendants. He wanted relief under the Negotiable Instruments Act (dishonor of cheque for insufficiency of funds in the accounts) and Section 420 (cheating and dishonestly inducing delivery of property) of IPC.
According to his plea Riverside Industries directors had approached him for supply of goods and issued him a cheque before it was stopped and despite his several requests from the accused directors nothing fruitful came out. However, as has been mentioned above there is no punishment for the willful stopping of the cheque, the lower court held that as payment was stopped and the cheque was not dishonored for insufficiency of funds, the provision of Section 138 of the Act is not attracted.
However, now that the Bombay High Court has turned the case on its head and held that the order made by trial court of setting aside order of issue process in respect of offence punishable under Section 138 of the Act cannot sustain in law, a lot of victims are going to have a relief. In situations you are facing similar issues wherein the drawer of the cheque has stopped the cheque willfully; you can file a case under section 138 of the Negotiable Instruments Act and seek the relief as it is very much a part of the section.
Finally the courts have started to realize that there is tremendous misuse of IPC Section 498A. First it was the Savitri Devi case in 2003, wherein the judge had held that there was growing tendency among wives to come out with inflated and exaggerated allegations roping in each and every relation of the husband. The case had redefined ‘cruelty’ as well. The judge in the case had then opined that if the husband happens to be of higher status or of vulnerable standing, he becomes an easy prey for better bargaining and blackmailing. Continuing the excellent delivery of justice, the recent judgment by Justice CK Prasad in the Arnesh Kumar case has further exposed the grave misuse of Section 498A by scheming women.
Justice CK Prasad in this case reiterated that there is phenomenal increase in matrimonial disputes in recent years and at the bottom of it is Section 498A of the IPC which was though introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives has been misused to great extent.
Police officers must not arrest the accused unnecessarily
The Arnesh Kumar case is a landmark decision as it is going to provide great respite for those who are framed by the scheming wives as in this case Justice CK Prasad held that police officers do need not arrest accused unnecessarily and magistrate do not authorize detention casually and mechanically.
Justice CK Prasad issued several directions for the government agencies and asked all the State Governments to instruct its police officers not to automatically arrest when a case under Section 498A of the IPC is registered. However, he allowed arrest if some set parameters laid down are followed and arrest is necessary under Section 41, Cr.PC.
The justice also instructed that all police officers must be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii) which they will have to follow when they feel the arrest is necessary and that check list must be produced before the Magistrate for further detention.
The judgment further reads that 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.
This judgment has made Section 498A, a cognizable and non-bailable offence, bailable as cops can arrest the accused only when they have followed the guidelines/checklist.
The Criminal Procedure Code, 1973 or Cr.P.C. talks in details about the bail process and how it is obtained. However, it does not define bail. To get a glimpse of the law, we need to go deeper to section 2(a) Cr.P.C. wherein it says that bailable offense means an offense which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offense means any other offense.
Thus, section 2(a) Cr.P.C. talks about schedule which refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories which have been determined according to the nature of the crime. For instance, all serious offenses like offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses, all other offenses have been kept bailable offenses.
Later part of the Cr.P.C. talks about the process of bail under sections 436 to 450 wherein it has the provisions for the grant of bail and bonds in criminal cases and also talks about the amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. However, still a lot of discretionary power has been vested into the court to put a monetary cap on the bond.
Do I have right to bail?
The Supreme Court of India has delivered several cases wherein it has reminded that the basic rule is bail and not jail. One such instance came in State Of Rajasthan, Jaipur vs Balchand @ Baliay case which the apex court decided on 20 September, 1977 and held that the basic rule is bail, not jail, except-where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court.
The bench of Krishnaiyer, V.R. had observed that when considering the question of bail, the gravity of the offence involved and the heinousness of the crime which are likely to induce the petitioner to avoid the course of justice must weigh with the court. Taking into consideration the facts of the case the apex court held that the circumstances and the social milieu do not militate against the petitioner being granted bail.
What is the process of bail?
When you are an accused of some crime and arrested to record your statement and take information like the name, residence address, birth place, charge filed against you, etc. The police officer may also check back the criminal record if any in the police station and ask for finger prints to files a case against you. The crimes that are bailable and simple, you will be allowed to apply for bail immediately.
However, if the crime is a little bit complex and non-bailable, you may wait for 48 hours to claim your right to bail in the court wherein you are given a hearing. Depending upon the facts of the case, the judge decides whether you should get bail or not. Also, in situation you are given bail you are asked to deposit money with the court. Generally, in certain smaller crime cases, a standard amount is asked to be deposited for awarding the bail.
What are the usual bail conditions?
There are some conditions put under section 437 of the Cr.P.C. wherein you can ask for bail even if you committed non-bailable offense. In non-bailable cases, bail is not the right but the discretion of the judge if regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. Section S. 437 (3) elaborates the conditions set by the law to get bail in non-bailable offenses.
The sub-section says that when a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1). However, for that the Court has power to impose any condition which it considers necessary.
Some conditions that the court may place while granting bail are as follows:
- In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
- In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
- Otherwise in the interests of Justice.
The specific law ‘the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’ to provide ample protection to women in India was passed by the parliament of India in 2013. The law aims to protect women from sexual harassment at their place of work and has provisions of strict punishment for violators.
Though there were provisions in the form of the Vishaka Guidelines promulgated by the Indian Supreme Court in 1997, the requirement for a separate law to provide protection to women at work place was felt and by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, it has been fulfilled.
Some major features in the new law
The Definition of Work Place: The new law redefined the term “workplace” which had limited definition in the Vishaka Guidelines wherein it was confined to the traditional office set-up where there is a clear employer-employee relationship. Here in the new law, the Act goes much further and takes organizations, department, office, branch unit, etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation, etc. in to its ambit.
Aggrieved Woman: Apart from defining ‘work place’ the law also defines who the aggrieved woman is wherein it says that any woman facing sexual harassment at the work place defined as above is aggrieved woman and creates a mechanism for redressal of complaints. The law also has provision to provide protection against false or malicious charges. The law has expanded the definition of aggrieved woman to provide protection under the Act as it covers almost all women, irrespective of her age or employment status.
Forming a committee to look after sexual harassment cases
The law asks the organized or unorganized sectors, public or private organizations to form a committee complete the inquiry within a time period of 90 days. Once the inquiry is complete, the report has to be sent to the employer or the District Officer, as the case may be who after receiving the report must take action within 60 days. Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’ has provision that the District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level. The law vests the powers of civil courts for gathering evidence to the Complaints Committees which are required to provide for conciliation before initiating an inquiry, if requested by the complainant. In situations the employers do not comply with the provisions of the Act they are subject to punishment with a fine of up to INR 50,000 and the repeated violations may lead to higher penalties and cancellation of license or registration to conduct business as well.
How to file sexual harassment case?
When you are going to file sexual harassment case against someone at workplace, it’s important for you to keep a written record of the time and date of the incident as well as the individual or individuals involved. Also, note down the place the harassment occurred, and other details that pertain to the incident as these will be inquired when you are asked to tell your version of the incident. Therefore, keeping accurate, detailed records of what actually happened to you will help your supervise conduct an investigation of the incident and also help the Sexual Harassment Complaint Committee see through the facts.
You must file the claim as soon as possible
Delay is not condoned; therefore, file the harassment claim as soon as possible i.e. as soon as the incident occurs, you should file the claim with the Complaint Committee. You can file the claim by mail, and in person, by providing your name, address, telephone number, and detailed information about your workplace and your employer. Giving as much detail as possible will help you and the committee as well to see through the facts and dispose of the justice as early as possible.
The identity of the aggrieved woman, respondent, witnesses as well as other details of the complaint will be kept confidential, cannot be published or disclosed to the public or media. The law says that the committee shall look into the truth of the allegations contained in the complaint and give ample opportunity for the parties to tell their versions and come up with the witness and evidence.
The Act provides the option of a settlement between the aggrieved woman and the responded through conciliation but only on the request of the woman. The Section 13 (3) (2) has a provision which gives power to the Internal Committee or Local Committee to determine the quantum of compensation considering several factors.
No, the constitution of India in Article 20(2) has the principles of “autrefois convict” or Double jeopardy which means that person must not be punished twice for the offence. Thus, you cannot be tried and punished for the same crime twice. The law of the land is that there cannot be second trial for punishing an offence for which he or she has already been prosecuted or convicted earlier.
The word Jeopardy refers to the “danger” of conviction that an accused person is subjected to when one trial for a criminal offence. However, if it happens twice, it becomes double jeopardy and that is what is unconstitutional i.e. if a person is prosecuted or convicted ones cannot be punished again for that criminal act. The person gets the defense of Double Jeopardy if he is tried for the same offence in the court.
Provisions regarding double jeopardy in India
Even before the constitution of India was framed and passed after independence, the Double Jeopardy principle existed in the country in the form of section 26 which states that provision as to offences punishable under two or more enactments where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted or punished under either or any of those enactments. However, the law clarified that he shall not be liable to be punished twice for the same offence.
Later on the Constitution of India also incorporated the maxim of Double Jeopardy under Article 20(2) and considered it as one of fundamental rights. As most of the fundamental rights have been borrowed from the US Constitution, the concept of Double Jeopardy also came from them. In the US Constitution the principle of Double Jeopardy was brought in by the Fifth Amendment, which says that “no person shall be twice put in Jeopardy of life or limb.” In similar language, the article 20(2) says that “no person shall be prosecuted or punished for the same offence more than once.”
Case laws on double jeopardy
The first case involving the issue came in 1954 wherein the Supreme Court of India hearing the S.A. Venkataraman vs The Union Of India And Another observed that the scope and meaning of the guarantee implied in Article 20(2) of the Constitution has been indicated with sufficient fullness in the pronouncement of this court in Maqbool Hussain vs the State of Bombay. The judges observed that the roots of the principle, which this clause enacts, are to be found in the well established rule of English law which finds expression in the maxim “Nemo debet bis vexari”-a man must not be put twice in peril for the same offence.
The court cited various cases and laws in practice in the US and the UK to give weight to the provision in India.
Interestingly, in Leo Roy v. Superintendent District Jail the Supreme Court of India held that it has to be marked that the defense of Double Jeopardy under Article 20 (2) will applicable only where punishment is for the same offence and if the offences are distinct the rule of Double Jeopardy will not apply. The court had observed that where a person was prosecuted and punished under sea customs act, but, later on prosecuted under the Indian Penal Code for criminal conspiracy, the second prosecution was not barred by the principle of Double Jeopardy. It was alright for the court to try the accused for the offense as it was not the same offense.
No one may be put in peril twice for the same offence
From the above cases, it is pretty clear that the rule against Double Jeopardy is that no one may be put in peril twice for the same offence. The principle emanates from Natural Justice System for the protection of integrity of the Criminal Justice System wherein the maxim audi altermn partum rule i.e. a person cannot be punished twice for the same offence is kept at higher pedestal. However, there are some restrictions too in the Indian laws related to Double Jeopardy which must be kept in mind.
For instance, in the State of Bombay v. S.L. Apte and another Constitution Bench of the Supreme Court while dealing with the issue of double jeopardy under Article 20(2), had held that to operate as a bar the second prosecution and the consequential punishment there under, must be for “the same offence”. The bench made it clear that the crucial requirement therefore for attracting the Article was that the offences are the same i.e. they should be identical. In situation the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked.
Before 2012, there was no specific law to provide protect to children from sexual offenses as this was the year when the parliament of the country passed The Protection of Children from Sexual Offences Act, 2012. The new law provides protection to children from a variety of offenses and has provision for heavy punishment for the perpetrator.
In its press release the government of India said that the Protection of Children from Sexual Offences Act, 2012 or POCSO Act in short has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. Though various sections of Indian penal code like 375- Rape, 354- Outraging the modesty of a woman, 377- Unnatural offences, and 511- Attempt, etc. Are there, the new law will provide extra relief.
The Parliament of India said that for the first time, a special law has been passed to address the issue of sexual offences against children as the IPC does not provide for all types of sexual offences against children. A major problem has been that there was no distinction between adult and child victims.
Understanding the aggravated problem, the parliament passed the POCSO Act which defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography.
Punishment for the Violation of the POCSO Act
The law clearly defines the offenses and provides for stringent punishments, which have been graded as per the gravity of the offence e.g. simple to rigorous imprisonment of varying periods, fine. Anyone who is in a position of trust or authority of child such as a member of security forces, police officer, public servant, etcetera commits crime will be treated as “aggravated.”
- Section 9 and 10 provide not less than five years which may extend to seven years, and fine for punishment for ‘Aggravated Sexual Assault’.
- The punishment goes higher for ‘Penetrative Sexual Assault’ punishable under Section 3 and 4. Here the accused gets not less than seven years which may extend to imprisonment for life, and fine.
- Accused of ‘Aggravated Penetrative Sexual Assault’ gets not less than ten years which may extend to imprisonment for life, and fine under Section 5 and 6.
- Sections 7 and 8 have provision of not less than three years which may extend to five years, and fine for Sexual Assault.
- The accused will get three years and fine under Section 11 and 12 for Sexual Harassment of the Child.
In Deepak Gulati vs State Of Haryana case in 2013, the Supreme Court of India held that sex based on the false promise of marriage can be rape in certain situations. The apex court observed that there is a clear distinction between rape and consensual sex and the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives.
If the accused had made a false promise to only to satisfy his lust, it will fall within the ambit of cheating or deception and there is a distinction between the mere breach of a promise, and not fulfilling a false promise. The court further said that it must be examined whether promise was made at an early stage and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence.
However, the court clarified that in some situations the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, the situation does not necessarily lead to rape and the court must consider other evidence as well for support.
Similarly, where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so, the case should be treated differently and cannot be considered rape if the other available evidence do not prove otherwise.
The fundamental principle behind the consent
The last year, the Delhi High Court held that a sexual relationship with a woman after making her a false promise of marriage amounts to rape. The conclusion was based on the logic that the so-called consent under a false promise of marriage is no consent. It further observed that a man receiving consent to sexual relations under false pretext does not amount to legal or valid consent and saving him from being accused and punished for rape.
Widening the ambit of the law, the Delhi Court held that even if the woman is assumed to be a willing participant in their physical union, the fact that the man had no intention of marrying her would make it an instance where consent was given under a misconception, nullifying the efficacy of approval.
The India’s constitution guarantees its citizens fundamental rights including of freedom; however, this right is curtailed when the citizen, even non-citizen commits some crime that asks the law enforcement bodies to detain, arrest or take the person to custody. Also, thanks to a lot of incidence of violence and torture in custody, the violation of fundamental rights also visible.
The first landmark decision about the guidelines on arresting a person came from the Supreme Court of India in D.K. Basu vs. State case. Here the Apex court laid down some specific requirements to be followed by the police for arrest, detention and interrogation of any person, purportedly to obviate the possibility of torture in custody.
However, there were different circumstances for women in India which were going through a lot of issues when they were being arrested or detained. A lot of cases of sexual harassment cases forced the Apex court and consequently the legislators to come up with the arrest guidelines specific for women.
Following are The Guidelines to be followed by Cops While Arresting Women
First, the police officer is duty bond while making arrest to see that arrested females are segregated from men and kept in female lock-up in the police station. He/she must also make sure that if there is no separate lockup; women are kept in a separate room. Also, women police officers should be associated where females are being arrested.
Second, the cops arresting women must avoid the time between sunset and sunrise; this guideline was issued after several instances of sexual and physical exploitation in police stations by the cops themselves.
Third, according to the guideline women and girls should not be called to the police station or to any place other than their place of residence for questioning. Also, while the inquiry is being done, the time must be chosen the arrestee is not embarrassed.
Fourth, in cases where medical examination of the arrestee or any other women has to be done, it should be carried out only under the supervision of female medical practitioners. Also, arrestee should be given all necessary pre-natal and post-natal care.
Fifth, the cops must avoid arresting pregnant women and choose the option only if there is no other option as it’s not just the matter of the arrested woman but also the safety of the fetus which could get damaged in hustle-bustle. Also, laboring women must never be restrained.
Least but not the last, girls and women should be guarded by female constables/police officers and if any questioning is done, it must done in presence of female cops.