New Delhi: The Supreme Court on Friday restored the power of the police to arrest the husband and their family members on a complaint of dowry harassment under IPC Section 498A but retained the power of courts to grant anticipatory or regular bail to accused. A three-judge Bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud, gave this direction while modifying the directions issued in July 2017 by a two-judge Bench in the case filed by Rajesh Sharma.

The Bench, while setting aside this part of the direction, however, called for sensitising the investigating officer so that indiscriminate arrests are not made without application of mind. Giving a series of guidelines, the apex court in July last ordered setting up of family welfare committee in each district. Any dowry related complaint should be referred to this committee, which will call the parties in person, make inquiries and submit a report to the Magistrate concerned and till then no arrests of husband or in laws should be made.

Seeking to revisit the order, Social Action Forum for Manav Adikar and Nyayadhar, a women’s organisation strongly opposed these directions and sought modification. It was pointed out that a married woman whenever goes to the police station to make a complaint against her husband and other close relatives takes a risk to fight with society at large but being left with no other remedy against cruelty and harassment ultimately choose this last resort. The directions went against the provisions of CrPC, which mandates arrest on registration of FIR.

The CJI who wrote the order said 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 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 totally revengeful manner, the young, old and relatives residing at distant places having no involvement with the incident, if any, are roped in.

The CJI said the court must strike a 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 sympathy.

The court also noted that hundreds of women 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. 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 to individuals. A sorry state of affairs is pronouncedly asserted.

Taking note of the harassment of husband and their family, the Bench said if a bail application is filed on registration of a complaint, the same might be decided expeditiously 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/ custody and interest of justice must be carefully weighed. In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine.

The CJI referring to the July 2017 order said constitution of the Family Welfare Committees by the District Legal Services Authorities to submit a probe report to the Magistrate before arrest is effected is not a correct expression of law. At the same time, the Bench said “we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in earlier judgments relating to arrest.” The Bench directed 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 the principles stated by this Court relating to arrest.