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2008 DIGILAW 2282 (MAD)

Romaiah v. A. W. P. S. , Chintadiripet, Chennai

2008-07-07

R.REGUPATHI

body2008
O R D E R :-When the matter was taken up for hearing on 02.07.2008, the petitioner appeared in person in order to bring it to the notice of this court that, during enquiry by the respondent police at the All Women Police Station, Chintadripet P.S., Chennai, he was brutally beaten up with lathi resulting in severe injury in the right hand and the matter was ordered to be listed on 03.07.2008 for appearance of the Police Officers concerned; accordingly, the Officers appeared before this Court. After hearing the Government Advocate, a direction was issued to the Commissioner of Police, Greater Chennai, to conduct an enquiry into the allegation through an Officer not below the rank of Superintendent of Police and submit a report on or before 07.07.2008, whereupon, a report has been submitted to-day by the Deputy Commissioner of Police, Triplicane, Chennai, to the effect that the allegations made against the officers concerned are false. 2. Without expressing any opinion on the enquiry report filed, this Court deems it necessary to touch the surrounding issues connected to this case. With an object to protect the women from cruelty by her husband and relatives, Section 498A has been inserted in the Indian Penal Code and the said provision reads thus: "498-A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine. Explanation-For the purpose of this section, "cruelty" means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave 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 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 meet such demand." The age old customary practice followed with genuine and good object, subsequently had taken an ugly shape and turned to be an evil and for prohibiting the bad practices that had flown therefrom, Dowry Prohibition Act, 1961, was introduced and Sec.8-B thereof empowers the Dowry Prohibition Officers to enquire into the offences. The aim of the provisions contained in the Dowry Prohibition Act as well as Sec.498A IPC. is to check and curb the menace of dowry and to save the matrimonial homes from destruction and the task of implementing the objectives thereof is entrusted to the Women Police Officers of All Women Police Stations. However, the actual implementation of the provisions has left a bitter trail of disgruntlement. There are repeated and recurring allegations in the recent past that in All Women Police Stations, while handling the matrimonial matters, the officers concerned resort to third-degree methods during enquiry and also effect unnecessary arrest. Even aged persons, minors and unmarried females, irrespective of their health condition, age and marital status have been customarily summoned or dragged to police stations without even verifying the ostensible genuineness of the complaints given. There are many reports of married sisters of husbands, even though they are pregnant or with baby in hands, living away from their parental home, are summoned and brought to police stations in the name of investigation/enquiry and the entire family is ruthlessly harassed. Children are made to suffer by being sent to custody along with their mothers or separated from them at the pleasure of the Investigating Officers. Also, there are some instances where arrests are strategically planned to harass the accused and his family so as to make them succumb to the horror of being imprisoned. Children are made to suffer by being sent to custody along with their mothers or separated from them at the pleasure of the Investigating Officers. Also, there are some instances where arrests are strategically planned to harass the accused and his family so as to make them succumb to the horror of being imprisoned. Such arrests are invariably plotted at the weekend particularly on Fridays so that they cannot even apply for bail for next two days. It must be borne in mind that no police lifestyle which relies more on fists than on wits, on torture more than on culture can control crime because means boomerang on ends and refuel the vice which it seeks to extinguish. Wrongful and illegal acts against battered and police-haunted humans are on high increase and now, it has become inevitable to deal with the issue suitably so as to ensure that correctional measures are taken instantly and no one would become a artless victim of injustice. 3. Police is expected to handle matters of this nature with utmost tenderness, care and caution so as to reconcile the warring couples so that they may re-unite and lead a congenial life irrespective of the fact that one of them preferred complaint against the other, dragging him to the police station. Legislators thought that women police officers would be a right choice to handle such tender and delicate family problems and in that background, All Women Police Stations were established all over Tamil Nadu. Everyone expected that these Police Stations would be Conciliation Centres for re-union; but, the actual experience divulged that even minor disputes due to family misunderstandings are given colour of a crime and in fact, helpless women are encouraged to come forward with a case with grave allegations against the husband and his family. Consequently, unnecessary arrests are made, invariably dragging all the family members to police station and subjecting them to ignominy and disgrace, thereby, the very purpose of the legislation is defeated, rendering re-union into a mirage. Marriages are made in heaven but many marital ties are broken in All Women Police Stations, leading to crumbling of families. Consequently, unnecessary arrests are made, invariably dragging all the family members to police station and subjecting them to ignominy and disgrace, thereby, the very purpose of the legislation is defeated, rendering re-union into a mirage. Marriages are made in heaven but many marital ties are broken in All Women Police Stations, leading to crumbling of families. The police must understand that marital disputes, where there is no evidence of physical harm or threat to life or limb, are not crimes at all and in such cases, they are not supposed to arrest anyone or to randomly summon the family members under the guise of enquiry. 4. No doubt, an offence under Section 498-A IPC. is cognizable, non-bailable and non-compoundable. But, does it mean that police can, with closed-eyes, make arrests of all family members just to drag them to police station when there is no basis at all to undertake such an exercise? Section 157(1) Cr.P.C. states that a police officer shall investigate a case relating to a "cognizable offence", and if necessary, take measures for the arrest of the offender. Further, Section 2(c) Cr.P.C. defines a cognizable offence as an offence in which a police officer may arrest without a warrant. Similarly Section 41 Cr.P.C. states that a police officer may arrest a person involved in a cognizable offence. The use of the word `may' clearly indicates that a police officer need not arrest a person mechanically in all cases. When he should effect arrest and when not is clarified by the Apex Court in Joginder Kumar vs. State of U.P. and others ( AIR 1994 SC 1349 ) by observing thus, " 12. The National Police Commission in its Third Report referring to the quality of arrests by the police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails. The said Commission in its Third Report at p. 31 observed thus: “It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. The said Commission in its Third Report at p. 31 observed thus: “It is obvious that a major portion of the arrests were connected with very minor prosecutions and cannot, therefore, be regarded as quite necessary from the point of view of crime prevention. Continued detention in jail of the persons so arrested has also meant avoidable expenditure on their maintenance. In the above period it was estimated that 43.2 per cent of the expenditure in the connected jails was over such prisoners only who in the ultimate analysis need not have been arrested at all. ....” 20. ... No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.” Taking note of the odd experiences while dealing with cases of dowry prohibition and matrimonial matters, the Supreme Court, in Sushil Kumar Sharma vs. Union of India and others, (JT 2005 (6) 266) observed as follows: ? The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.” 5. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. If the law enforcing agencies act in a wayward manner, ultimately, it would adversely affect the functioning of the democracy. Therefore, instances of elderly and women abuse, luxation of matrimonial homes due to mishandling of fragile matters in an obdurate manner, disintegration of families etc. cannot be so slightly ignored, particularly when such aspects are the outcome/result of mishandling of situation by the police officers in All Women Police Stations. Judicial notice has been taken in a number of landmark judgements by taking serious view of the growing tendency to falsely implicate innocent members of the accused family in dowry cases at the instance of the police officers acting without due understanding of the actual state of affairs and in flagrant violation of the established procedure. That is why, the Hon'ble Apex court has described the misuse of the above provisions as 'legal terrorism'. The odious instances of mishandling of cases by the investigating officers are rampant. That is why, the Hon'ble Apex court has described the misuse of the above provisions as 'legal terrorism'. The odious instances of mishandling of cases by the investigating officers are rampant. The All Women Police Stations in the State have almost become power centres where the Women Police Officers while dealing with delicate issues of family disputes between husband and wife, instead of making efforts for re-union or conciliation, focus to complicate and precipitate the issue so that ultimately they could derive the gain and benefit. Because of this inhuman attitude, as pointed out earlier, the doors of conciliation are shunned forever. In spite of the enunciation of the Supreme Court and judgements of this court to act in a proper perspective, it seems, there has been no proper education in this regard to these Women Police officers to correct themselves and behave properly. 6. Questioning the authority of the Police to investigate into the matters relating to offences committed under the provisions of Dowry Prohibition Act, a Writ Petition in W.P. No.31420 of 2005 was filed before this Court stating that only the Dowry Prohibition Officer is the competent authority to investigate and file final report before the Magistrate. The Bar expressed its valuable opinion based on their sufferings and experiences strongly objecting that unlimited powers including the power of arrest should not be vested with Police Officers in Uniform especially when Dowry Prohibition Officers have been directed to be appointed as prescribed by Dowry Prohibition Act. By Order dated 28.04.2006, a Division Bench of this Court, reposing confidence in the officers of the All Women Police Stations, declined to accept the prayer and ultimately dismissed the Writ Petition and the said decision was confirmed by the Supreme Court in S.L.P. No.9807 of 2006. In sincerity, I myself followed both the decisions while delivering judgement in Suresh v. The Inspector of Police, All Women Police Station, Rajapalayam ( 2006 (5) CTC 844 ). Now, in view of the persistent untoward happenings in the All Women Police Stations, the role of the Dowry Prohibition Officers assumes vital importance. In order to keep the enquiry/investigation in their hand, allegations attracting IPC offences are included with ulterior motive and the role of Dowry Prohibition Officers are totally excluded. Now, in view of the persistent untoward happenings in the All Women Police Stations, the role of the Dowry Prohibition Officers assumes vital importance. In order to keep the enquiry/investigation in their hand, allegations attracting IPC offences are included with ulterior motive and the role of Dowry Prohibition Officers are totally excluded. Almost all such cases attracting Dowry Prohibition Act are kept with the All Women Police Officers, in the net result, the object of the enactment is defeated. While appreciating this aspect with the Members of the Bar for whom I record my deep appreciation, it was deeply felt that Dowry Prohibition Act is the most misused enactment. One of the pillars of the democracy, the Executive have social responsibilities to bring the irregularities / highhandedness / excessiveness / transgression of limits by police/authorities to the notice of the Government in power so that effective correctional measures could be taken. In advanced countries like U.S.A., U.K., etc., it is the Executive who brings to the notice of the Government the flaws and malfunctioning/maladministration for amendment, advancement and change. Therefore, it is reiterated that the Executive must monitor this type of violations with societal concern and instantly bring the same to the knowledge of the Government to right the wrongs. Unfortunately, when the judiciary, with its wide-open eyes, reacts to such felonies by making observations and passing orders so as to redeem the tryst of the Constitution vis-a-vis court justice, it is complimented with the criticism of judicial activism. 7. Taking note of the allegation against the Woman Police Officer that she violently beat the petitioner/husband, who had an order of anticipatory bail with him, during the course of enquiry and since this Court does not want to express any opinion on the report submitted, it is left to the petitioner to proceed against the police officer by approaching appropriate forum if he is so advised. 8. 8. In view of the repeated allegations of violation of law by the police officers in All Women Police Stations, I make the following suggestions to the police Department/Government; (i) Except in cases of Dowry Death/suicide and offences of serious nature, the Station House Officers of the All Women Police Stations are to register F.I.R. only on approval of the Dowry Prohibition Officer concerned; (Since there is a general allegation that, in some places, Dowry Prohibition Officers have been appointed simply by giving an additional charge to the previously appointed officers discharging other duties and such appointment is nothing but a flattery and eyewash to show that compliance has been made on the obligation under the Dowry Prohibition Act and Rules, it must be made sure that actual appointments of such officers are made as provided under the Act and they are functioning in the prescribed manner.) (ii) Social workers/mediators with experience may be nominated and housed in the same premises of All Women Police Stations along with Dowry Prohibition Officers; (iii) Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations; (iv) If arrest is necessary during investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding the reasons recorded in writing; (v) Arrest can be made after filing of the final report before the Magistrate concerned if there is non-cooperation and abscondance of accused persons, and after receipt of appropriate order (Non-Bailable Warrant); (vi) Charge sheet must be filed within a period of 30 days from the date of registration of the F.I.R. and in case of failure, extension of time shall be sought for from the jurisdiction Magistrate indicating the reasons for the failure; (vii) No weapon including Lathis/physical force be used while handling cases at the All Women Police Stations; (viii) A different Uniform other than the regular one may be recommended for these police officers; (ix) If necessary, Complainants/victims should be provided with adequate security/accommodation at Government Home and interest of the children must be taken care of; (x) Sridana properties/movables and immovable to be restored at the earliest to the victims/complainants and legal aid may be arranged for them through Legal Services Authority for immediate redressal of their grievances; (xi) The Police Department should arrange for conducting education programs for these police officers through Police Training College to teach the objects of the legislation, judicial pronouncements and development of law. 9. The Director General of Police, in consultation with the Government, is directed to issue suitable orders to the officers of All Women Stations in the light of the observations and suggestions made above, and compliance report is to be filed before this Court within a period of one month from to-day. Post the matter on (4th August, 2008)