Delhi,  dated 25 November 2006

 

 

JUDICIAL AND POLICE AUTHORITY UNDER ARTICLES 141 and 144 of the CONSTITUTION IS TO PROTECT CONSTITUTION PREAMBLE GIVEN BY PEOPLE OF INDIA TO THEMSELVES, FOR ORDERLY NATIONAL INTEGRITY, SECURITY, SECULARITY, DEMOCRACY AND REPUBLIC INDIA  THROUGH ETHICAL PROCEDURES AS LAID IN STATUTES AS MANDATORY CONSTITUTIONAL OBLIGATIONS.

 

1.       “Understating Wrong Implementation Of Crl. Act No. 46 of 1983 (worst than misuse)”: This is to help women also for filing of true complaint if any against husband and his relatives in proper manner i.e. by observing qualifying clause  u/s. 6 of Crl. Act No. 46 of 1983 that she has to file her case to the magistrate after taking an oath i.e. under affidavit making complaint to magistrate as a private complaint case.  498A IPC isolated from Crl. Act No. 46 of 1983 and moved additionally to the said new domestic violence law and blended to contaminate adulterate the Crl. Act No.46/1983’s section 2 creating section 498A IPC.

2.      There are two sides of the coin of 498A IPC which is a part of the Crl. Act No.46/1983  i.e. dowry death within 7years of marriage cognizable offence, and the other side of the coin of 498A IPC being the living woman who has not died because of "willful" dowry torture, if any, it has to be by way of private complaint case to Judicial Magistrate First Class / Metropolitan Magistrate who will take cognizance of the complaint, if found to his judicial satisfaction,  and issue summons to the other side directing them to bring with them their arrangement for taking bail. No arrest in latter part. 

3.      The wrong implementation victimizes husband and his relatives by way of complaint by “living” woman to police authority to erringly be understood as ‘cognizable’ to abuse the police power of arrest despite the Supreme Court of India has ruled that even in cognizable cases, it is not necessary to arrest in each case depending upon the circumstance. This is matrimonial case u/s. 498A IPC not dealing with general criminals.

4.      When special law of 498A IPC is accompanied with Indian penal code's sections in addition to 498A IPC, it is a clear abuse of criminal process i.e. using other penal sections in additions to 498A IPC is sure indicator of abuse of criminal process  to cause arrest for ulterior motives.

5.      The abusers of criminal process and civil law abusers, in matrimonial matters and those who abet are equally to be punished as held in this court’s judgment of 19/7/2005 (Supra).

6.      If there is no offence made out in special law like 498A IPC as 498A IPC is used as an excuse to arrest with police powers so that the husband  and his side are blackmailed for sure extortion attempts for “snatching” riches by extortion under threat of a criminal case (u/s. Sec.389 IPC) for getting amongst others a forced mutual divorce which is also an open fact that 498A IPC abuse of criminal process leads to mutual divorce as a essential reward to which the judicial authority become party despite the cognizable side of 498A IPC is non-compoundable.

7.      Using of additionally other sections of IPC at time of “using” section 498A IPC that also has ingredients of dowry demand and those similar to section 323, 504, 506, 511 of the IPC and section of  the Dowry Prohibition Act 1961 is a repetition for ulterior motives by the person and/or authority using it for abusing of police powers to arrest abetting the woman and her side to have high authority in demanded extortion.  

 

(i)           Section 498A IPC vis-à-vis sections 2 to 7 of the Crl. Act No.46 of 1983 show the intention of the legislation:

 

(ii) 498A IPC: Husband or relative of husband of a woman subjecting her to cruelty. Cruelty/Harassment explained as willful conduct for causing mental or physical injury in any manner or leading to dowry death: Imprisonment up to 3 years i.e. three years:

                        Two sides of the coin of section 498A IPC illustrated:

A. Dowry death by suicide that will lead to F.I.R. to police officer in charge of a police station. Cognizable.  (See qualifying Section 6). Cognizable. Non-Compoundable.  (Non-Bailable)

B. Cruelty/Harassment allegations to be made by living woman to the Judicial magistrate First Class as “private” complaint case and examined by the JMFC accordingly. (See qualifying Section 6).   Thus Non-Cognizable and Compoundable. (Bailable)

 

(iii) Kindly refer to Apex Court’s directives in its judgment on 19/7/2005 (Supra) that Dowry death and Cruelty cannot be considered same through a straitjacket formula. Despite this, both sides of the intra-vires law 498A IPC are being treated as cognizable offence i.e. death of living women and cruelty to living woman for sake of causing arrest without the woman giving her statement on oath before the magistrate.

 

(iv)The following sections’ alleged offences are incorporated into the said

498A IPC vis-à-vis section 2 to 7 of the Crl. Act no.46 of 1983 mentioned below for perusal and consideration:

(v). Section 323 of IPC: Punishment for causing voluntarily hurt

      is upto 1 year and or fine. Non-Cognizable. Bailable.

(vi). Section 504 of IPC: Insult intended to provoke breach of

        peace.  Upto 2 years and or fine. Non-Cognizable. Bailable.

         Section 506 of IPC – Criminal intimidation.  Upto 2 years.

         Non-Cognizable.      Bailable.

(viii)  Section 511 of IPC – According to offence is both Cognizable

         and Non-Cognizable. Accordingly Non-Bailable and Bailable

         as per  attempts to commit offence.

Section 4 of the Dowry prohibition Act 1961 – Penalty for   

         taking demanding dowry. Punishment minimum 6 months

         to 2 years.

(ix)    Section 3 of DPA is for giving and taking dowry. Punishable

to giver by 5 years and to taker by 5years. The Woman side claiming to give dowry in name of gifts  (whether given or not) are liable to punishment upto 5years and fine as mentioned therein. The dowry takers alleged to have taken do not know that they have taken dowry. The giver of dowry has to be punished and giver cannot be given blanket immunity u/s. 7(3) of the DPA especially when section 498A IPC and other matrimonial woman empowerment law is used by woman. Such blanket immunity in every case, encourages woman to make false allegations of giving dowry despite the so called takers do not take dowry.

(x).    Section 6 of the DPA permits so called dowry transactions and it is in opposition and in contradictory style to the other sections like Sec. 3 and 4 of the DPA, and it thus cannot be an offence. Even then this law of DPA is abused for harassment to husband and his relatives. 

 

8.      A criminal process started u/s 498A IPC’s umbrella as cognizable offence though cognizable side of the coin of 498A IPC is not applicable in case of complaint by living woman to police station, the husband is forced to give mutual divorce at instance of court case/police case for making the judicial authority to use the compoundable side of the coin of 498A IPC.

9.      This is the part of legal terrorism by living woman enticed to make such false matrimonial criminal complaint cases.

10.  498A IPC used: “Under duress Divorce” by fraud, illegal means adopted by the woman for abusing criminal process in matrimonial laws like 498A IPC etc. : A.  MUTUAL CONSENT DIVORCE: The District Court ignoring this fact is allowing mutual divorce illegally that mutual divorce under  the Hindu Marriage Act, 1955's Section 13B subsection 1(bb) i.e. Sec. 13B(1)(bb) of HMA along with other section of the HMA is an clear illegal force, fraud  and undue offence to allow . 

11.  In such cases mutual divorce application by both is obviously result of consent obtained from husband by force of police cases (criminal process) under umbrella of section 498A IPC, also a  fraud an undue influence all rolled into one to which the district judicial authority also become a party if allows divorce.   

12.  Divorce  in name of Cruelty by Living woman: When the Court of district Judge comes to know of the woman has filed a police case u/s. 498A IPC to abuse police powers for so called cruelty by husband and his relatives, the woman cannot file a divorce case as a punishment to the husband in various manner under the Hindu Marriage Act:

13.  Because for same offence the husband cannot be intended to be punished two fold by the wife for the same offence  irrespective of the result.

14.  160.  Because Cruelty for the purpose of section 498A IPC and Section 13B of the Hindu Marriage Act cannot be on same layer of plane of judicial purview:

15.  Because when cruelty is like that explained in 498A IPC read with Crl. Act No.46 of 1983,  the woman opts for this section. A closer look shows that it is the police power to arrest attracts more and more increasing numbers of living women finding HAVEN in abusing criminal process for ulterior motives as they are not punished severely if their complaint is found intended for ulterior purposes.

16.  The police officers who all are generally not reigned by lawful powers of judicial officer - judicial officers who do not stop wrong implementation by police officer (civil authority) , are equally responsible for not punishing woman abusing 498A IPC, and other women empowerment provisions for ulterior purposes and their such act is not in good faith that is by not punishing the woman found to abuse the criminal process for ulterior motives.

17.  The Supreme Court of India’s judgment  reported in 2005 (6) SCC 281, 2005 AIR  has directed in its judgment delivered on 19/7/2005 that the persons who are found to abuse the criminal process are to be stringently punished under the existing provisions of penal law. This equally applies to abusing civil process in matrimonial matters by woman for ulterior motives.

18.  Divorce Application by Woman on Basis of Cruelty under

Section 13 of the HMA:.  The same cruelty cannot be used also for cruelty u/s. 498A IPC or vice – versa  as it is on a different layer and it is for women who want to remain in the house and so file 498A IPC. After being for being outside conjugal bed turning into mutual divorce application under illegal pressure of threats looming large over husband by way of 498A IPC or by any abuse of any women empowerment law. 

 

19. Thus also whether the divorce application turns into mutual  divorce

application or not, the living woman cannot be granted divorce under the HMA even.

20.  Using same offence or allegations of cruelty for prosecution for two fold punishment i.e. u/s. 498A IPC implies that she wants to reside with husband if the alleged cruelty was not there otherwise if she does not intend to reside with husband then there is no cruelty at all, and u/s 13 or 13B of HMA cruelty cannot be used for being “prosecuted” (proceeded) for the same offence more than once i.e. cruelty, for divorce for the same cruelty between same persons being already used through 498A IPC. 

21.      Rather, It is the right of the husband to demand divorce from wife for her cruelty by making use of 498A IPC for ulterior motives amongst other reasons as may applicable in each circumstances.    Kindly refer to Article 20(2) of the Constitution which reads as follows: “No person shall be prosecuted and punished for the same offence more than once.”

21. Empowerment of woman under Indian penal and criminal                 procedure  codes :

The women are not being psychologically trained/prepared to how to truly use the empowerment in fair manner. First they cannot be given such powers that even Indian parliament, Government public servants do not enjoy as un-reigned powers.

22. When a woman is given such empowerment understanding

that they will use it when necessary and not for ulterior motives, then if woman is found to abuse such criminal laws for ulterior motives and purposes, such woman and also her abettors conspiracy are to be punished severely including for taking away Right to Liberty that is guaranteed..

23. The Right of Liberty of husband and his relatives is infringed

by police without due process of law because of the wrong implementation of the Crl. Act no.46 of 1983 of which section 2 created 498A IPC. All its sections 2 to 7 cannot be read in isolation as the whole set of “sections” show the benign intention of this intra-vires law.

24. Sec. 498A IPC cannot be considered by itself by isolating

        from   other sections of Crl. Act No. 46 of 1983.

25. THE PWDVA & RULES 2006:  Unlike Cr. Act No.46 of 1983

which has two alternative criminal procedures in the same coin of 498A IPC, The Prevention of Domestic Violence Against Women Act & Rule 2006 (PAD Act  & RULES 2006) said to be effective from 26/10/2006 have different stages of actions on the same side of the coin of PWDVA i.e.  Civil , Criminal gradually as per stages in the law.

26.   Complaint by woman etc. under the Act can be dismissed

even at any stage. But when this special law of The Prevention of Domestic Violence Against Women Act & Rule 2006 is also used in conjunction with other criminal acts, it will be hell again, and in that condition it will also prove that the perpetrators of the law harping women protection do not find any force in the complaint of woman against family members, and so to justify arrest jump rapidly or directly to arrest and punish the man for one year by adding additional penal laws and Crl. procedures

27.  The Union Minister of Human Resources Development

presented PWDVA as the Civil Law in the Parliament as Bill No. 116 of 2005. Kindly refer to Minister’s Statement of Objectives and Reasons ‘s para 2 and 3 mentioned in Schedule VI 

28.   PWDVA  is a fraud upon the Parliament for obtaining its

      approval as civil law because it is in reality a Criminal law.

29.  PWDVA has isolated section 498A IPC also from the

Criminal Act No.46 of 1983 for ignoring the intentions of the legislation of 1983 to use the law for ulterior purposes. Other provisions also incorporated in it relating to section 125 Cr.Pc. and Dowry Prohibition Act to change its application detrimental to the constitutional law already made.

30.  Wrong Implementation by police officer and not stopped  by magistrate, creates wrong implementation of section 498A IPC:

31.   When information is made by woman to the police station, the police officer has to register the first Information Report the contents are disclosing cognizable offence, and then set the law into motion for investigation. Registering of F.I.R. on basis of prior inquiry is not permissible. The F.I.R. has to be registered then inquired into it.

32.   The Bill No. XIVF of 1983 in parliament creating 498A IPC

mentions in its objects as follows in first sentence of the first paragraph: “The increasing number of dowry deaths is a matter of serious concern.” And “Cases of cruelty by the husband and relatives of the husband which culminate in suicide by, or murder of, the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty.”

33.  For using the cognizable part of the first dowry death law enacted under Crl. Act No. 46 of 1983, the following offences are two categories of offences are covered under section  498A IPC: 

 

1.        Dowry death/suicide by willful cruelty to living woman within

           7years. (Kindly See Section 3 of Crl. Act No. 46/1983).

 

2. Second category of offence u/s 498A, being Living woman subjected to willful cruelty / harassment by husband or his relatives.

 

34.   The police officer is competent civil authority to decide 

the  application of the special law i.e. 498A IPC to register F.I.R. for the first category of offence of dowry suicide, as cognizable offence like dowry death.

35.   Under the special law i.e. 498A IPC, the second category

mentioned in para 160 sub-para B9 above i.e. for willful cruelty

allegedly by husband or his relative, it is non-cognizable offence for which the living woman has to make a private complaint to the competent magistrate and the F.I.R. cannot be registered u/s. 154 of the Cr.P.C.  .

36.    Section 154 of the Code thus casts a statutory duty upon police

officer to register the case, as disclosed in the complaint, and then to proceed with the investigation.  The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information. 

37.                    The notification referred in Section 1(3) is the notification to be  made after the Rules are agreed upon by the Parliament (both houses) under section 37(3) of the Act No.43/2005.

38.                    The impugned notification of is of 17/10/2006 i.e. G.S.R. No.644(E) dated 17/10/2006  does not specifically refer that these rules shall be effective only after being agreed upon by the Parliament under section 37 (3) of the Act and  seemingly notifies simultaneously for being effective from 26/10/2006 seemingly without being agreed upon by the Parliament and the also without mentioning that the Rules are being made effective from such date after the Rules have been agreed upon by the Parliament i.e. by the both houses of Lok Sabha and Rajya Sabha. The Notification vide S.O. No. 1776(E) dated 17/10/2006 has some element of hidden ulterior motive(s) to rush through an unconstitutional act of making the rules effective without any compliance an reference of the mandatory Section 37(3) of the special law - Prevention of Domestic Violence Against Women Act 2005. 

            B. Unlike Act No. 46/1983 which has dual criminal procedure as a coin that has head and tail,  the Act No.43 of 2005 and its Rules 2006 has multiple mix of civil and criminal procedures on the same side of the coin of Act No.43/2005 and its Rules 2006 for being used one after another theoretically effective from 26/10/2006.

C. In both the plea taken is of miniscule number of offences. The

(Civil) Act No. 43 of 2005 doped with criminal law, will surpass manifold the abuse of criminal process for ulterior motives by woman as being done by living woman by abusing the criminal process in violation of the spirit and intention of the Parliament in Crl. Act No. 46 of 1993.  The Supreme Court has directed to punish the persons found to abuse criminal process in its judgment of 19/7/2005 reported in 2005 (5) SCC 281. Based upon this judgment, this is applicable in case of abuse of any law (civil or criminal) that the persons may include according to the circumstances in each case civil (includes police officer concerned) and judicial authority including for abetting u/s. 34 and 120 IPC, in such abuse of process of court for ulterior motives of the persons.  The possible reasons being as follows as applicable in each circumstances:

(I)                              The civil authority putting a false case for ulterior motives and it attracts also section 389IPC against the person who makes false report to him and the police officer acts in manner as he should not have acted.

(II)                            The judicial Authority if not restraining the persons for filing false cases, and if not dismissing a complaint / civil case with ulterior motives in case of criminal case not honorably acquitting the accused person(s). Trial cannot be made for ulterior motives.

 

·               The Act No. 43 of 2005 ‘s statement reflects the intention of the Minister as given to the Parliament for passing the Act and was to be effective only after the both Houses of Parliament agreed upon each part of the Rules:    Ref.  For Act No. 43/2005:

 

·                “ STATEMENT OF OBJECTS AND REASONS       

Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its Genera! Recommendation No. XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.

2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under section 498 A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety,

…   ARJUN SINGH 12/8/2005

------------------------------- Unquote.

39.  The law has ignored SC judges’ made law under the Constitution from time to time: SC realized the ulterior purposes in following judgments for abusing the civil and criminal process by woman:

Mohammad Shamim & Ors. Vs. Nahid Begum & Anr. SC judgment of 7/1/2005.     2004 AIR SCW 332: ulterior motive of woman.

• Ruchi Agarwal Vs. Amit Kumar Agarwal & Ors. SC judgment on  5/11/2004     (Appeal (crl.)  1274 of 2004)

• 2005 AIR SCW5303

ASHOK BHAN AND ALTAMAS KABIR, JJ.

Civil Appeal No. 2501 of 2002  Date:   21/10/05

- Union of India and another v. Raja Mohammed Amir Mohammad Khan. The importance and Application of  Article 141 and 144 of the Constitution in day to day functioning to reduce pressure upon the courts.

• 2005 AIR SCW 3569  ARIJIT PASAYAT AND H. K. SEMA, JJ.

Judgment Date Date: 19/07/05

• 2006 AIR SCW 858  ARIJIT PASAYAT AND S. H. KAPADIA, JJ.

             Transfer Petn. (C) No. 291 of 2005 Date: 14/02/06

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