Significant Direction of Supreme Court for cases under section 498A of Indian Penal Code

ARNESH KUMAR Vs. STATE OF BIHAR

In the above noted matter, two judge bench of hon’ble Supreme Court of India comprising of Justice Chandramauli Kr. Prasad and Justice Pinaki Chandra Ghose recorded that being Section 498-A of Indian Penal Code is a cognizable and non-bailable offence, it has become a dubious place of pride amongst the provisions that are used as  weapons to  harass husband and his family rather than shield to protect themselves by disgruntled wives and hence no arrest should be made in routine, casual and cavalier manner instead said power should be used where the circumstances exist to justify the reasons thereof.

After going through the parameters laid down in section 41 of Code of Criminal Procedure, hon’ble Supreme Court held that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid, but in order to arrest the accused, Police officer 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 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 person is arrested, his presence in the court whenever required cannot be ensured.

The hon’ble court further observed that an accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 of the Code of Criminal Procedure to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 of Code of Criminal Procedure. Before a Magistrate authorizes detention under said section, he has to be satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused.

In order to ensure no un-necessary arrests, hon’ble Supreme Court has given following directions:

1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41of Code of Criminal Procedure. 
2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii). 
3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/ producing the accused before the Magistrate for further detention. 
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 authorize detention. 
5. The decision not to arrest an accused, be forwarded to the 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. 
6. Notice of appearance in terms of Section 41A of Cr.PC be 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. 
7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. 
8. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

These directions by the hon’ble Supreme Court shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, but also such cases where offence is 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.

Details of this judgement can be read in following link:

http://judis.nic.in/supremecourt/imgs1.aspx?filename=41736 

Dashrath Rupsingh Rathod Vs. State of Maharashtra & Anr. (Territorial jurisdiction of Court in cases of section 138 of the Negotiable Instruments Act)

In the above noted matter tagged with eight other criminal appeals, a three judge bench of hon’ble Supreme Court of India headed by Mr. T. S. Thakur J. looked into the legal nodus of substantial public importance pertaining to Court’s territorial jurisdiction concerning criminal complaints filed under Chapter XVII of the Negotiable Instruments Act, 1881.

After hearing the counsels and going through the provisions of the Negotiable Instruments Act and number of precedents, said hon’ble bench of Supreme Court opined that section 138 of the Act in question is in two parts. The enacting part of it, clarifies as to what constitutes an offence punishable with imprisonment and/or fine is the dishonor of a cheque for insufficiency of funds etc. in the account maintained by the drawer with a bank, which was issued for discharge of a debt or other liability whether in full or part. Thereby said enacting part constitutes of three elements as follows:

1. Cheque is drawn by the accused on an account maintained by him with a banker. 
2. The cheque amount is in discharge of a debt or liability. AND
3. The cheque is returned unpaid for insufficiency of funds or that the amount exceeds the arrangement made with the bank.

Whereas the other part of section is the proviso, which draws an exception to the generality of the enacting part of the provision, by stipulating two steps that ought to be taken by the complainant holder of the cheque before the failure of the drawer gives to the former the cause of action to file a complaint and the competent Court to take cognizance of the offence. These two steps, which only postpones the actual prosecution of the offender till prescribed statutory period is as follows:

1. The complainant has demanded the payment of the cheque amount from the drawer by issuing a written notice within thirty days of receipt of information by him from the bank regarding the dishonor.  AND
2.  The drawer has failed to pay the cheque amount within fifteen days of the receipt of the notice.

Thus those two steps stipulated in the proviso to section 138 are distinct from the ingredients of the offence which the enacting provision creates and makes punishable. Under this kind of interpretation, offence under section 138 is complete with the dishonor of the cheque but taking cognizance of the same by any Court is forbidden so long as the complainant does not have the cause of action to file a complaint in terms of clause (c) of the proviso to section 138 read with Section 142 of the Negotiable Instruments Act.

The overall scheme of legislature by stipulating such law seems to have granted a concession and prescribe a way out under which dishonor need not necessarily lead to penal consequence if the drawer makes amends by making payment within the time stipulated once the dishonor is notified to him. Payment of the cheque amount within the stipulated period will in such cases diffuse the element of criminality that Section 138 attributes to dishonor by way of a legal fiction implicit in the use of the words “shall be deemed to have committed an offence”. The drawer would by such payment stand absolved by the penal consequences of dishonor.

The hon’ble bench of the apex court, hence, respectfully concured with K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 so far as concatenation of concomitants, constituents or ingredients of Section 138 Negotiable Intruments Act is essential for the successful initiation or launch of the prosecution is concerned. But so far as commission of the offence itself is concerned the proviso has no role to play. Accordingly a reading of Section 138 of the Negotiable Act in conjunction with Section 177 of Cr.P.C. leaves no manner of doubt that the return of the cheque by the drawee bank alone constitutes the commission of the offence and indicates the place where the offence is committed.

In the detailed and critical analysis of their lordships which ran as many as 87 pages, they hold that the place, situs or venue of judicial inquiry and trial of the offence under section 138 of the Negotiable Instruments Act must logically be restricted to where the drawee bank, is located.

Consequent on considerable consideration, Supreme Court thought it expedient to direct that only those cases where, post summoning and appearance of the alleged Accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881, the proceedings will continue at that place the same is going on. They have also clarified that regardless of whether evidence has been led before the Magistrate at the pre-summoning stage, either by affidavit or by oral statement, the Complaint will be maintainable only at the place where the cheque stands dishonoured. To obviate and eradicate any legal complications, the category of Complaint cases where proceedings have gone to the stage of Section 145(2) or beyond shall be deemed to have been transferred by Supreme Court from the Court ordinarily possessing territorial jurisdiction to the Court where it is presently pending. All other Complaints (obviously including those where the accused/respondent has not been properly served) shall be returned to the Complainant for filing in the proper Court, in consonance with our exposition of the law. Such Complaints may be filed/ refiled within thirty days of their return to be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred.

Those willing to read detailed judgement may follow following link:

http://judis.nic.in/supremecourt/imgs1.aspx?filename=41801 

Shatrughan Chauhan & Anrs Vr U.O.I. & Ors. (Mercy Petition)

In the above noted matter tagged with 14 other writ petitions, a three judge bench of hon’ble Supreme Courrt of India headed by Mr. P. Sathasivam had an opportunity to look whether it will be in violation of Article 21, amongst other provisions, to execute the levied death sentence on the accused notwithstanding the existence of supervening circumstances like – Delay, Insanity, Solitary Confinement, Judgments declared per incuriam, Procedural Lapses, etc. and if yes can there be judicial interference to protect right of death row convict.

 

After hearing the counsels and going through number of precedents, Supreme Court held that it is well established that exercising of power under Article 72/161 by the President or the Governor is a constitutional obligation and not a mere prerogative. It opined that considering the high status of office of President / Governor, the Constitutional framers did not stipulate any outer time limit for disposing the mercy petitions under the said Articles, which means they should be decided within reasonable time. However, when the delay caused in disposing the mercy petitions is seen to be unreasonable, unexplained and exorbitant, it opens the door for judicial interference to consider the prevailing circumstances. Right to seek for mercy under Article 72/161 of the Constitution is a constitutional right and not at the discretion or whims of the executive, hence the same must be fulfilled with due care and diligence.

It further held that in India, every person even an accused has a de facto protection under the Constitution and it is the Court’s duty to shield and protect the same. Therefore, when judiciary interferes in such matters, it does not really interfere with the power exercised under Article 72/161 but only to uphold the de facto protection provided by the Constitution to every convict including death convicts.

In view of the disparities in implementing the already existing laws, hon’ble Supreme Court has also framed following guidelines for safeguarding the interest of the death row convicts.

1. Solitary Confinement: Solitary or single cell confinement prior to rejection of the mercy petition by the President is unconstitutional. 
2. Legal Aid: Legal Aid for accessing judicial remedies is fundamental right under Article 21 and should be available to every convict till last breath even after rejection of mercy petition. Accordingly, Superintendent of Jails should intimate the rejection of mercy petitions to the nearest Legal Aid Centre apart from intimating the convicts. 
3. Procedure in placing the mercy petition before the President: As and when any such petition is received or communicated by the State Government after the rejection by the Governor, necessary materials such as police records, judgment of the trial court, the High Court and the Supreme Court and all other connected documents should be called at once in one stroke fixing a time limit for the authorities for forwarding the same to the Ministry of Home Affairs. After getting all the details, it is for the Ministry of Home Affairs to send the recommendation/their views to the President within a reasonable and rational time. Even after sending the necessary particulars, if there is no response from the office of the President, it is the responsibility of the Ministry of Home Affairs to send periodical reminders and to provide required materials for early decision. 
4. Communication of Rejection of Mercy Petition by the Governor: Since the convict has a constitutional right under Article 161 to make a mercy petition to the Governor, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the Governor should forthwith be communicated to the convict and his family in writing or through some other mode of communication available. 
5. Communication of Rejection of the Mercy Petition by the President: All States should inform the prisoner and their family members of the rejection of the mercy petition by the President. Since the convict has a constitutional right under Article 72 to make a mercy petition to the President, he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the mercy petition by the President should forthwith be communicated to the convict and his family in writing. 
6. Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the President and the Governor. 
7. Minimum 14 days notice for execution: It is necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution for the following reasons:-
   
   (a)  It allows the prisoner to prepare himself mentally for execution, to make his peace with god, prepare his will and settle other earthly affairs.
   (b)  It allows the prisoner to have a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison which may be located at a distant place and meet the prisoner for the last time. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families. It is the obligation of the Superintendent of Jail to see that the family members of the convict receive the message of communication of rejection of mercy petition in time.
8. Mental Health Evaluation: It has been seen that in some cases, death-row prisoners lost their mental balance on account of prolonged anxiety and suffering experienced on death row. There should, therefore, be regular mental health evaluation of all death row convicts and appropriate medical care should be given to those in need. 
9. Physical and Mental Health Reports: All prison manuals give the Prison Superintendent the discretion to stop an execution on account of the convict’s physical or mental ill health. It is, therefore, necessary that after the mercy petition is rejected and the execution warrant is issued, the Prison Superintendent should satisfy himself on the basis of medical reports by Government doctors and psychiatrists that the prisoner is in a fit physical and mental condition to be executed. If the Superintendent is of the opinion that the prisoner is not fit, he should forthwith stop the execution, and produce the prisoner before a Medical Board for a comprehensive evaluation and shall forward the report of the same to the State Government for further action. 
10. Furnishing documents to the convict: Most of the death row prisoners are extremely poor and do not have copies of their court papers, judgments, etc. These documents are must for preparation of appeals, mercy petitions and accessing post-mercy judicial remedies which are available to the prisoner under Article 21 of the Constitution. Since the availability of these documents is a necessary pre-requisite to the accessing of these rights, it is necessary that copies of relevant documents should be furnished to the prisoner within a week by the prison authorities to assist in making mercy petition and petitioning the courts. 
11. Final Meeting between Prisoner and his Family: Prison authorities must facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution. 
12. Post Mortem Reports: Although, none of the Jail Manuals provide for compulsory post mortem to be conducted on death convicts after the execution, but the same should be made compulsory.