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The Proof and Practice U/Sec. 498-A IPC

THE PROOF AND PRACTICE U/SEC. 498-A IPC

Where any person is an accused for taking or abetting the taking of dowry or the demanding dowry, the onus of proving that he has not committed an offence shall be on him. (One of the principles of the Indian Criminal Law is that a person is innocent until proven guilty and the onus of proving the guilt is on the complainant / prosecutor. This onus has been shifted in certain specific offences such as Dowry, Rape, etc.).

Although the Legislature has introduced sec. 113-A and 113-B in the Indian Evidence Act that in certain cases of death of a married woman, the Court will presume the certain amount of culpability on the part of the accused husband and his relatives yet it is a well founded principle of law that all good presumptions of fact are rebuttable. So far as the proof and practice U/Sec. 498-A IPC is concerned the requirement of the “Proof beyond reasonable doubt” has not been diluted, which is one of the basic principles of the Indian Criminal Jurisprudence.

In (AIR 1994 SC 1418) State of W.B. v. Orilal Jaiswal it was observed by the Supreme Court:
“We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceeding. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of S. 498A, I.P.C and S. 113A of Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater, (1950) 2 All ER 458 at p. 459 has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter.”


Nevertheless in the State of Delhi special Courts have been constituted by the Delhi High Court in the year 1994 to try, inquire or otherwise deal with the matters pertaining to Sec. 498-A IPC (including other offences related to women). These Courts are called Mahila Courts. Here, to make the woman complainant feel at ease, the Judge, the Court staff members and the public prosecutors etc. are all women.


THE ROLE OF THE POLICE:

As the offence under Sec. 498-A IPC is a cognizable offence; it is investigated into by the police upon receiving complaints from the complainants. For this reason, the police assume a very crucial role in the use, misuse or abuse of this provision of law. After the arrest of the accused and at the time of hearing for their bail applications the Investigating Officers of the police are heard and they, through their case diaries (U/Sec. 172 CrPC) sometimes become one of the decisive factors in the grant or refusal of bail / anticipatory bail to the accused. In Delhi a special cell was constituted to enquire or otherwise deal with the complaints under Sec. 498-A IPC. This cell is known as the Crime against Women Cell or CAW Cell.


While describing their role in the investigation / enquiry related to the offences U/Sec. 498-A IPC, the DCP CAW Cell Nanak Pura filed an affidavit before the Court of a Metropolitan Magistrate in a case (FIR no. 443/04, U/Sec. 498-A, 406 IPC, PS Seelam Pur) Rehana Parveen Vs state. [We had successfully made this order of the Court available for the visitors. Please see this case with the same name] As per that affidavit there had been a sharp increase in the cases of demand of Dowry, bride burning, homicide, suicide on account of cruel treatment meted to the brides at the hands of in-laws. This necessitated the establishment of a special cell to enquire into and investigate such incidents.


As per that affidavit, The Commissioner of Delhi Police being empowered U/Sec. 10 Delhi Police Act, vide S.O. No. 281 /1989 and S.O. No. 99/1994 constituted a cell known as Crime Against Women Cell (popularly known as CAW Cell).


As per the aforesaid affidavit, the proceedings of CAW Cell are in the nature of ‘Enquiry’ to find out truth regarding the allegations made in the complaint before registering the case and also to reconcile the matter if possible. In case, the allegations made against the husband are not found to be true or covered U/Sec. 498-A IPC, the complaint is closed.

 


As per that affidavit, the DCP aforesaid stated that the help of NGOs and eminent psychiatrists was also taken to counsel the couple. The following data was placed on record to show the achievement of the CAW Cells in Delhi.


Complaints 2000 2001 2002 2003 2004 2005
Received 7356 7215 8349 8166 8533 3498
Filed 3282 3129 3238 3163 3287 618
Compromised 1706 1807 2393 2575 2530 308
Stridhan restored 663 708 1001 1029 908 108
Case recommended 1068 1001 1227 1063 1046 186
Sent to other Distt. 637 570 490 335 666 245
Total disposal 7356 7215 8349 8165 8437 1435
Pending Enquiry 0 0 0 1 96 2063

.

In the aforesaid affidavit the working of the CAW Cells in Delhi was also explained. An information brochure was produced by them which laid down the “Purpose of Enquiry” by the CAW Cell in the offences under Sec. 498-A & 406 IPC. It reads as follows:

1. To examine in detail the  Commission of offences against  women
2. To provide assistance in case the complainant wants re-conciliation
3. To pin point the guilty persons
4. To collect evidence for prosecution during the course of enquiry
5. To prevent miscarriage of justice

Further, guidelines for the ‘PROCEDURE’ to be followed by the Enquiry Officers from C.A.W. Cell during their ‘Enquiries’ are given as follows:

1. Complete understanding of the complaint to identify the nature of offence committed
2. To make points for enquiry
3. Collection of evidence required for each point, list of witnesses to be examined, evidence to be elicited from each witness
4. Independent evidence
5. Examination of witnesses
6. Conducting local enquiry if considered necessary

These excerpts, from the documents of Delhi Police as placed in a Court of law, show that conceptually there is nothing new in the efforts of Delhi police. Delhi Police shows its overall failure to appreciate the anguish and anxiety of the Legislature for enacting Sec. 498-A IPC. They viz. police wale appear to be applying the age old Polisia Tareeqe to cope up with the newly emerging socio-legal changes in the society. This needs as Jayna Kothari feels, an ‘innovative policing guidelines and a social service network’ for the effective implementation of laws. She contends that this non-interventionist attitude and policy imposes a secondary victimisation on the woman by trivialising the harm done to her, and offering little symbolic support in the form of severe penalties for offenders.

Several allegations have been leveled against the working of the CAW Cells e.g.

• their working is not as per law; particularly in view of sec. 4 CrPC
• they are found encouraging complainants to add dowry demands as the main cause for cruelty,
• they extort money from both the parties and their outcomes are generally leaned in favour of the resourceful party;
• they are instrumental in distorting the relations between the parties;
• they have failed to evolve something, as Jayna Kothari calls - a Victim Empowerment Model

In his article Bikram Jeet Batra, Legal Officer at Amnesty International India in November 2000, writes that there was a storm of protest from women’s organizations after the legal adviser to the Delhi Commissioner of Police prepared a report, which made sweeping statements about the misuse by married women of section 498A. This report argued that "[t]he reasons for disharmony between the wife and the husband arise only when either the wife is reluctant/refuses to adjust herself in the family circumstances or if the husband feels reluctant to accommodate his wife either on account of unnecessary interference by the parents of the wife or non-cooperative attitude of the wife." Later reports follow a similar trend.

 

Apart from these allegations from the activists, there are some working problems. Section 498A does not address the different forms of violence specifically, and addresses “cruelty” very generally, as any act that is likely to drive the woman to commit suicide or to cause grave injury or danger to life, as mentioned earlier. As a result, it often, is at the discretion of the police officer to assess whether the sexual abuse or verbal and psychological abuse faced by a woman from her husband or in-laws would qualify as cruelty under Sec 498A or not.

Many a leading personalities say that much of the misuse or abuse of Sec. 498-A IPC is not due to its stringency but due to its being entrusted in ruthless hands of the police. Madhu Kishwar says that all these amendments placed draconian powers in the hands of the police without adequate safeguards against the irresponsibility of the enforcement machinery. The truth is that there were adequate provisions in the IPC Sections 323, 324, 325 and 326 for use against anyone who assaults a woman or causes her injury. But the police would in most cases not register a complaint against a husband under these sections, even where there was clear evidence that the wife’s life was in grave danger. This was partly because, as habitual users of violence, policemen, more than any other section of our population, find it easy to condone beatings and even murder of wives by husbands. Given their track record in routinely brutalising people who fall into their clutches, it is reasonable to assume that the propensity of our policemen to beat up their wives would be much higher than that of the average citizen. Add to this their entrenched habit of patronising criminals as a way of garnering extra income and it would be, indeed, naive to presume that they would turn into compassionate rescuers of women in distress, simply because more stringent laws had been put at their disposal.

Madhu felt aggrieved that no new principles of accountability were added to the Police Act. The only new innovation we witnessed was that special Crimes Against Women Cells were created in select police stations to handle women’s complaints. And, in some places, Family Courts were put into operation.

 

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