Holding

The Court declared the directions constituting Family Welfare Committees and empowering them to block arrests as impermissible, upheld other procedural directions with modifications, and mandated that settlement matters be dealt with by the High Court under s.482 CrPC.

Summary

The petitioners sought a uniform policy for registration, arrest and bail in cases under Section 498‑A IPC, challenging the directions issued in Rajesh Sharma v. State of U.P. that created Family Welfare Committees, barred arrests before their report, and allowed district courts to dispose of settled cases. The Court examined whether such directions exceeded the limits of the Code of Criminal Procedure and constituted impermissible legislative policy. It held that the constitution of the Committees and the power to prevent arrest were beyond the CrPC and therefore invalid, while directions on bail, red‑corner notices, clubbing of cases and exemption from personal appearance were upheld. The settlement provision was modified to require parties to approach the High Court under s.482 CrPC for quashal. Consequently, the writ petitions and the criminal appeal were disposed of without any order as to costs.

Issues considered

Whether the directions in Rajesh Sharma regarding the constitution of Family Welfare Committees and their powers to prevent arrest are within the statutory framework of the CrPC.
Whether a district court or a designated judicial officer can dispose of a settled case under Section 498‑A IPC, which is non‑compoundable.
Whether directions relating to bail, red‑corner notices, clubbing of cases and exemption from personal appearance are permissible.
Whether the Supreme Court can issue policy‑type directions that encroach upon legislative competence.

Legislation cited

Code of Criminal Procedure, 1973s. 205, s. 317, s. 41, s. 41-A, s. 482
Indian Penal Code, 1860s. 498-A

Subjects

Section 498-A IPCFamily Welfare CommitteeArrest procedureCriminal Procedure CodeSettlement of matrimonial disputesHigh Court quashal under s.482BailRed corner noticeClubbing of casesJudicial directionsLegislative competence

Judgment

[2018] 12 S.C.R. 19 19

SOCIAL ACTION FORUM FOR MANAV A
ADHIKAR AND ANOTHER
v.
UNION OF INDIA MINISTRY OF LAW
AND JUSTICE AND OTHERS
B
(Writ Petition (Civil) No.73 of 2015)
SEPTEMBER 14, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
C
Penal Code, 1860 – s.498-A – Matrimonial disputes –
Directions issued in Rajesh Sharma and Others v. State of U.P. and
Another, [2017] 9 SCR 529 – Modification in – Amicus Curiae
contended that directions issued in the Rajesh Sharma case
pertaining to s.498-A of IPC required reconsideration – Held: 1)
Earlier, the Court had directed constitution of the Family Welfare D
Committees by the District Legal Services Authorities and prescribed
the duties of the Committees – The Committees were empowered to
suggest a report failing which no arrest could be made – Directions
pertaining to constitution of a Committee and conferment of power
on the said Committee is impermissible as power conferred are
E
beyond the Code of Criminal Procedure – 2) The Court had also
issued direction that in cases where settlement is reached, the District
and Sessions Judges were entrusted with power to dispose of the
proceeding – This direction relating to settlement modified to the
extent that if a settlement is arrived at, the parties can approach
High Court u/s.482 of Cr.P.C. – 3) The Court had directed that F
complaints u/s.498-A and other connected offences may be
investigated only by a designated investigating officer of the area
– This direction has to be read in conjunction with the direction
that Director General of Police of each State is to ensure that
investigating officers are imparted training with regard to the
G
principles laid down by Supreme Court relating to arrest – 4) Further,
the Court had left it open to the District Judge or a designated
judicial officer to club all connected cases between the parties and
had also exempted family members, particularly outstation members,
from personal appearance – These directions modified to the extent
H
19
20 SUPREME COURT REPORTS [2018] 12 S.C.R.

A that an application has to be filed either u/s.205 Cr.P.C. or s.317
Cr.P.C. depending upon the stage at which exemption is sought – 5)
Nothing erroneous in the earlier directions relating to bail and
impounding of passports or issuance of Red corner notice – Code
of Criminal Procedure, 1973 – ss. 41, 41-A, 205, 317 and 482.
B Disposing of the matters, the Court
HELD: 1. The core issue is whether the Court in Rajesh
Sharma could, by the method of interpretation, have issued such
directions. On a perusal of the directions, it is found that the
Court has directed constitution of the Family Welfare Committees
C by the District Legal Services Authorities and prescribed the
duties of the Committees. The prescription of duties of the
Committees and further action therefor, 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
D has made the offence under Section 498-A Indian Penal Code,
1860 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 are
in consonance with the provisions contained in Section 41 CrPC
E and Section 41-A CrPC. Similarly, the guidelines stated in Joginder
Kumar and D.K. Basu 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. [Para 33] [46-A-D]
F
2. In Rajesh Sharma, 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
G 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.
H [Para 34][46-E-F]
SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI 21
MINISTRY OF LAW AND JUSTICE

3. The directions pertaining to constitution of a A
Committee and conferment of power on the said Committee is
erroneous in light of the statutory provisions and Supreme Court
judgments. 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
B
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. C
Therefore, there is nothing erroneous in directions relating to
application for bail and issuance of Red Corner notice. So far as
directions allowing 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
D
disputes and exemption of family members from personal
appearance is 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. [Para 35] [48-A-C]
4. While declaring the directions pertaining to Family
Welfare Committee and its constitution by the District Legal E
Services Authority and the power conferred on the Committee is
impermissible. Therefore, it is appropriate to direct that the
investigating officers be careful and be guided by the principles
stated in Joginder Kumar , D.K. Basu , Lalita Kumari and Arnesh
Kumar. It will also be appropriate to direct the Director General F
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. Thus,
direction issued in Rajesh Sharma relating to investigating
officers investigating complaints u/s.498-A of IPC shall be read G
in conjunction with the direction given above.
[Paras 38 and 39] [49-D-G]
5. Insofar as direction relating to settlement is concerned,
it is modified to the extent that if a settlement is arrived at, the
H
22 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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, shall dispose of the same.
[Para 40] [50-A]
Joginder Kumar v. State of U.P and Others (1994) 4
B SCC 260 ; D.K. Basu v. State of W.B. (1997) 1 SCC
416 : [1996] 10 Suppl. SCR 284 ; Lalita Kumari v.
Government of Uttar Pradesh and Others (2014) 2
SCC 1 : [2013] 14 SCR 713 ; Arnesh Kumar v. State
of Bihar and Another (2014) 8 SCC 273 : [2014] 8
SCR 128 – relied on.
C Sushil Kumar Sharma v. Union of India and Others
(2005) 6 SCC 281 ; B.S. Joshi and Others v. State of
Haryana and Another (2003) 4 SCC 675 ; Brij Lal v.
Prem Chand and Another [1989] 2 SCR 612 ; Rajesh
Sharma and Others v. State of U.P. and Another
D 2017 (8) SCALE 313 ; [2017] 9 SCR 529 : Nilabati
Behera v. State of Orissa and Others (1993) 2 SCC
746 : [1993] 2 SCR 581; State of M.P. v. Shyamsunder
Trivedi and Others (1995) 4 SCC 262 : [1995] 1 Suppl.
SCR 44 ; Lakshmi Kant Pandey v. Union of India
(1984) 2 SCC 244 : [1984] 2 SCR 795 ; Vishaka and
E Others v. State of Rajasthan and Others (1997) 6 SCC
241 : [1997] 3 Suppl. SCR 404 ; Common Cause (A
Registered Society) v. Union of India and Another
(2018) 5 SCC 1 ; Suresh Seth v. Commissioner, Indore
Municipal Corporation and Others (2005) 13 SCC 287
F ; Census Commissioner and Others v. R. Krishnamurthy
(2015) 2 SCC 796 : [2014] 11 SCR 463 ; N.D. Jayal
and Another v. Union of India and Others (2004) 9
SCC 362 : [2003] 3 Suppl. SCR 152 ; Rustom Cavasjee
Cooper v. Union of India (1970) 1 SCC 248 : [1970] 3
SCR 530 ; Premium Granites and Another v. State of
G T.N. and Others (1994) 2 SCC 691 : [1994] 1 SCR
579 ; M.P. Oil Extraction and Another v. State of M.P.
and Others (1997) 7 SCC 592 : [1997] 1 Suppl. SCR
671 ; State of Madhya Pradesh v. Narmada Bachao
Andolan and Another (2011) 7 SCC 639 : [2011] 6
H
SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI 23
MINISTRY OF LAW AND JUSTICE

SCR 443 : State of Punjab and Others v. Ram Lubhaya A
Bagga and Others (1998) 4 SCC 117 : [1998] 1 SCR
1120 – referred to.
Case Law Reference
(2005) 6 SCC 281 referred to Para 3
B
(2003) 4 SCC 675 referred to Para 4
[1989] 2 SCR 612 referred to Para 5
[2017] 9 SCR 529 referred to Para 9
C
[2014] 8 SCR 128 relied on Para 22
(1994) 4 SCC 260 relied on Para 26
[1996] 10 Suppl. SCR 284 relied on Para 28
[1993] 2 SCR 581 referred to Para 28 D
[1995] 1 Suppl. SCR 44 referred to Para 28
[2013] 14 SCR 713 relied on Para 29
[1984] 2 SCR 795 referred to Para 35
E
[1997] 3 Suppl. SCR 404 referred to Para 35
(2018) 5 SCC 1 referred to Para 35
(2005) 13 SCC 287 referred to Para 36
[2014] 11 SCR 463 referred to Para 37 F
[2003] 3 Suppl. SCR 152 referred to Para 37
[1970] 3 SCR 530 referred to Para 37
[1994] 1 SCR 579 referred to Para 37
G
[1997] 1 Suppl. SCR 671 referred to Para 37
[2011] 6 SCR 443 referred to Para 37

[1998] 1 SCR 1120 referred to Para 37
H
24 SUPREME COURT REPORTS [2018] 12 S.C.R.

A CIVIL ORIGINAL/APPELLATE JURISDICTION: Writ Petition
(Civil) No.73 of 2015.
Under Article 32 of the Constitution of India
WITH
B Criminal Appeal No. 1265 of 2017
Writ Petition (Criminal) No. 156 of 2017.
P. S. Narsimha, ASG, K. Radhakrishnan, Ms. Indira Jaising,
Sr. Advs., Ms. Indu Malhotra, V. Shekhar, Sr. Advs(ACs), Shivang Dubey,
Ms.Tanvi R. Nayar, Prashant Singh, Gaurav Aggarwal, Ms. Deepti
C Gupta, Advs(ACs.), Ms. Charu Walikhanna, Dharmender Pal Singh,
Mrs. Vipin Gupta, Mahesh Srivastava, P. N. Puri, Vaibhav Manu
Srivastava, Pankaj Srivastava, Alok Singh, Ms. Surabhi Lata, Abhishek
Singh, Sandeep S. Deshmukh, Ms. Manju Jetley, Raghavendra Tripathi,
Mukul Singh, Ms. Arunima Dwivedi, R. R. Rajesh, Gautam Sharma,
Ms. Sunita Sharma, Balram Das, B. Krishna Prasad, M. K. Maroria,
D Shadan Farasat, Ms. Aanchal Singh, Ms. Rudrakshi Deo, Pramod Dayal,
Rajesh Kumar, Roopenshu Pratap Singh, Dr. Alok Sharma, Naresh
Kumar, Gurmeet Singh Makker, Gaurav Agrawal, Shashank Shekhar,
Umang Shankar, Namit Saxsena, Ms. Sindhu T. P., R. Beniwal, Bineesh
K., Arushi Singh, P. V. Dinesh, Ms. Kirti Singh, Ms. Pallavi Langar,
E Ms. Nupur Agrawal, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DIPAK MISRA, CJI. 1. 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
F 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 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
G
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
H
SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI 25
MINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]

totally revengeful manner, the young, old and relatives residing at distant A
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
B
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 C
sympathy. The role of the law enforcing agency or the prosecuting 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
D
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’). E
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 F
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 G
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.
H
26 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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
B 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
C 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
D 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.)
E
(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
F 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 within a period of
G 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)
H 3. The Bill seeks to achieve the above objectives.”
SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI 27
MINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]

3. Regarding the constitutionality of Section 498-A IPC, in Sushil A
Kumar Sharma v. Union of India and others 1, 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 B
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 C
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 D
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, E
the Court observed:-
“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 F
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 G
ends of justice would prevent women from settling earlier. That is
not the object of Chapter XXA of Indian Penal Code.”
1
(2005) 6 SCC 281 : AIR 2005 SC 3100
2
(2003) 4 SCC 675 : AIR 2003 SC 1386
H
28 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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
B 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
C 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
D 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
E viz. (1) that the woman 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
F 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
G 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
3
H (1989) 2 SCR 612
SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI 29
MINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]

been made to issue a writ of mandamus to the respondents for a uniform A
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 B
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 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 C
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 D
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 E
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 F
has been diluted and the offence has practically been made bailable by
reason of various qualifications and restrictions prescribed by various
decisions of this Court including Rajesh Sharma and others v. State
of U.P. and another 4, a recent pronouncement.
10. It has also been submitted by the petitioners that the police is G
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
4
AIR 2017 SC 3869 : 2017 (8) SCALE 313 H
30 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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
B 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
C often unprofessional and callous and the investigating officers 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
D 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.
E 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
F 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
G more oxygen, for the social evil of dowry is on the increase and is openly
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
H to individuals. A sorry state of affairs is pronouncedly asserted.
SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI 31
MINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]

15. On the aforesaid bedrock, a prayer in Writ Petition (Civil) No. A
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:-
B
“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. C

(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. D
(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
(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. F
(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.
G
(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. H
32 SUPREME COURT REPORTS [2018] 12 S.C.R.

A (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
B 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
C District and Sessions Judge or any other senior Judicial Officer
nominated by him in the district to dispose of the proceedings
including closing of the criminal case if dispute primarily relates to
matrimonial discord;
iv) If a bail application is filed with at least one clear day’s notice
D 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/
E 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;

F 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
G
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.

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viii) These directions will not apply to the offences involving A
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 B
Petition was listed on 13.10.2017, the following order came to be passed:-
“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]. C
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) D
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 E
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.
F
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 G
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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34 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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.
B 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
C 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
D 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 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
E 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.
F 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
G 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:-

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“498-A. Husband or relative of husband of a woman A
subjecting her to cruelty.—Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to cruelty
shall be pun-ished 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—
B
(a) any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of the
woman; or
(b) harassment of the woman where such harassment is with a C
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet
such demand.”
22. The said offence is a cognizable and non-bailable offence. D
This Court in Arnesh Kumar v. State of Bihar and another5 has
observed that the said offence which is a cognizable and non-bailable
offence has lent it a dubious place of pride amongst the provisions that
are used as weapons rather than shield by disgruntled wives. The simplest
way to harass is to get the husband and his relatives arrested under this
provision. The Court has taken note of the statistics under “Crime in E
India 2012 Statistics” published by the National Crime Records Bureau,
Ministry of Home Affairs which shows arrest of 1,97,762 persons all
over India during the year 2012 for the offence under Section 498-A.
Showing concern, the Court held that arrest brings humiliation, curtails
freedom and casts scars forever and the police had not learnt its lesson F
which is implicit and embodied in the Criminal Procedure Code.
Commenting on the police, the Court said:-
“It has not come out of its colonial image despite six decades of
Independence, it is largely considered as a tool of harassment,
oppression and surely not considered a friend of public. The need G
for caution in exercising the 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
5
(2014) 8 SCC 273 H
36 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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
B 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
C 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
D 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
E 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
F
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the
offence to disappear or tampering with such evidence in any
manner; or
G (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

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(e) as unless such person is arrested, his presence in the Court A
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, B
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 C
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
(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
E
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 F
complaint has been made, or credible information has been
received, or a reasonable 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; G
or
(h) who, being a released convict, commits a breach of any rule
made under sub-section (5) of section 356; or

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38 SUPREME COURT REPORTS [2018] 12 S.C.R.

A (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.
B
(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.”
C
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
D 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
E 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
F person is arrested, his 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
G 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
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SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI 39
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that the accused has committed the offence. Apart from this, the A
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 B
(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, C
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.
D
(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 offence
referred to in the notice unless, for reasons to be recorded, the E
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 F
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 G
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
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40 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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
B 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
C 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:-
D “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 mechanically. In order to
ensure what we have observed above, we give the following
directions:
E 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;
F 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
G 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;
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SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI 41
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11.5. The decision not to arrest an accused, be forwarded to the A
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 B
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 C
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 D
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
implementation and not to behave like emperors considering the notion E
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 F
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 G
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
6
(1994) 4 SCC 260 H
42 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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.”
B 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,
C 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 deciding which
comes first—the criminal or society, the law violator or the law
D 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
E 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
F 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
G 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.
7
(1997) 1 SCC 416
8
(1993) 2 SCC 746
9
H (1995) 4 SCC 262
SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI 43
MINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]

(3) A person who has been arrested or detained and is being held A
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
B
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 police station of the area
concerned telegraphically within a period of 8 to 12 hours after C
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.
D
(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.
E
(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.
F
(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. G
(9) Copies of all the documents including the memo of arrest,
referred to above, should be sent to the Illaqa Magistrate for his
record.

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44 SUPREME COURT REPORTS [2018] 12 S.C.R.

A (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
B 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
10
others , the Constitution Bench, referring to various provisions of CrPC,
C adverted 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
D
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

E (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
F 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
G 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:-

H 10
(2014) 2 SCC 1
SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI 45
MINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]

“16. Function of this Court is not to legislate but only to interpret A
the law. No doubt in doing so laying down of norms 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
B
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 C
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 D
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 E
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.”
F
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 that there will be no unfairness and unreasonableness in implementation G
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 H
46 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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
B
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
C 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
D
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.
34. In Rajesh Sharma (supra), there is introduction of a third
agency which has nothing to do with the Code and that apart, the
E 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
F 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
G 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

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SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI 47
MINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]

dispute would depend on the facts and circumstances of each A
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
B
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 C
criminal proceedings involving such offences. But the criminal
cases having 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
D
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 E
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 F
(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
G
Rajasthan and others15 and Common Cause (A Registered Society)
v. Union of India and another16 and some others. In the obtaining
14
(1984) 2 SCC 244
15
(1997) 6 SCC 241
16
(2018) 5 SCC 1
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48 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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 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
B
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
C 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
D 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
E 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
F particular piece of legislation. In Supreme Court Employees’
Welfare Assn. v. 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
G to enact a law which it has been empowered to do under the
delegated legislative authority. …”

17
(2005) 13 SCC 287
18
(1989) 4 SCC 187
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SOCIAL ACTION FORUM FOR MANAV ADHIKAR v. UOI 49
MINISTRY OF LAW AND JUSTICE [DIPAK MISRA, CJI]

37. Another three-Judge Bench in Census Commissioner and A
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 others22, M.P. Oil Extraction and another v. State of M.P. and
others23, State of Madhya Pradesh v. Narmada Bachao Andolan
B
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 C
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 D
opinion.”
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
E
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 F
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. G
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 H
50 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 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)
B are concerned, they shall be governed by what we have stated in
paragraph 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.
C

Ankit Gyan Matters disposed of.

D

E

F

G

H