Re: [HumJanenge] amendment of 498A...

Dear All,

Please understand there is a Cr.P.C for every IPC. In the case of
IPC 498a , Police always over look the Cr.P.C part . That is the
very raeson , that they are keen to arrest people. I would add to
the questionaire . I have been fifgting Misuse IPC 498a with RTI.

my answers are attached . A-R is my answer

Thanks
Raghu

On 4/4/11, Dr. NC JAIN <j_nc@hotmail.com> wrote:
>
> I agree with the ans. given in this questioner. I request you to send it to
> proper authorities. I may add that I have already sent my suggesstion on
> this on 30/11/2010 to the joint director, Rajyasabha Secteriatet , new
> Delhi 11001 under my email jainnc2000@hotmail.com.
> Hope,some action has/will be taen on it. However I have not heard anything
> about it.
> DR N C Jain
> 4-4-2011
>
>
>
> Date: Sun, 3 Apr 2011 18:56:59 +0000
> To: humjanenge@googlegroups.com
> Subject: [HumJanenge] amendment of 498A...
> From: soumen102@rediffmail.com
>
> This is a questinnaire circulated by law commssion of india about amendment
> of dreaded 498A section of IPC...plz read and send it to law commission as
> your feedback. Plz give name and proper address.You can also use RTI to find
> out the feedback. See how RTI works in real issues will also be an acid test
> of RTI once.
> Plz support this movement and send toi as many as people you can
>
> .....................................................
>
>
> Questionnaire
> a) What according to you is ideally expected of Police, on receiving the FIR
> alleging an offence u/s 498A of IPC? What should be their approach and plan
> of action?
> Ans: They like u/s 41 C of CrPC should ask the offender to come to police
> station ( except in case of death /severe limb injury of the women) and be
> asked to come on predetermined period. By this time police must complete the
> preliminary investigation say within a week, max a fortnight. The police
> station will in this time will sent it subdivisional level counselling
> centre and only after getting a report from there they will proceed to lodge
> the case when there is no death or serious limb injury. In other cases where
> death etc takes place ( max 25%) total cases police should proceed
> immediately. - A - R - The Act 46 of 1983 does not provide for arrest of any one , when a 498a complaint is given to a Police officer by living . Teh complaint is Non- congizable and Bailable. Please read the amendment very carefully
> b) Do you think that justice will be better meted out to the aggrieved woman
> by the immediate arrest and custodial interrogation of the husband and his
> relations named in the FIR? Would the objective of s.498A be better served
> thereby?
> Ans: No custodial detention damages family tie mostly forever. If you want
> to get some examples Please contact us at ( www.abhiyan.webnode.com). A-R : Police has no power to arrest on a complaint of living woman , it an abuse of process of law. The option is file a writ and Contempt application in the concerned High court.
> a)The Supreme Court laid down in D.K. Basu (1996) and other cases that the
> power of arrest without warrant ought not to be resorted to in a routine
> manner and that the Police officer should be reasonably satisfied about a
> person's complicity as well as the need to effect arrest. Don't you agree
> that this rule applies with greater force in a situation of matrimonial
> discord and the police are expected to act more discreetly and cautiously
> before taking the drastic step of arrest?
> Ans: Yes this is very much necessary for police to make arrest in domestic
> relation problems to get a warrant in routine manner. A- R It is very common knowledge that Police arrest RTI activists , Common man , because they are helpless
> b) What steps should be taken to check indiscriminate and unwarranted
> arrests?
> Ans: The answer is given below. The process of reconciliation should be
> followed except in case of deliberate death or serious limb injury . A-R : IPC 498a is only made a dreadful law for monetary gains by the police.
> Do you think that making the offence bailable is the proper solution to the
> problem? Will it be counter-productive?
> Ans: For cases without death or serious limb injury that should be a proper
> solution. No it will never be counter productive. A-R : Cr.P.C says a complaint by a living woman is Non- Congizable and Bailable . Don't amend the original Act, enforce the Cr.P.C requirement by police . The Original Amendment of 1983 is in order.
> There is a view point supported by certain observations in the courts'
> judgments that before effecting arrest in cases of this nature, the proper
> course would be to try the process of reconciliation by counselling both
> sides. In other words, the possibility of exploring reconciliation at the
> outset should precede punitive measures. Do you agree that the conciliation
> should be the first step, having regard to the nature and dimension of the
> problem? If so, how best the conciliation process could be completed with
> utmost expedition? Should there be a time-limit beyond which the police
> shall be free to act without waiting for the outcome of conciliation
> process?
> Ans: In a country where a union cabinet minister is in demand of money the
> police if lead to act freely will compound the problem as happened in last
> 27 years. Counselling should be allowed after a cooling off period say one
> month etc. A-R : Never involve the police or the state in a matrimonial dispute , please understsnd the IPC 498a wives are well educated , can spaek english and hire the best lawyer in the High court . IPC 498a is to protect the hapless woman , not a tool for monetary gain.
> Though the Police may tender appropriate advice initially and facilitate
> reconciliation process, the preponderance of view is that the Police should
> not get involved in the actual process and their role should be that of
> observer at that stage? Do you have a different view?
> Ans: Most of police officers are illiterate with colonial mentality .
> Conselling should be done by local stalwarts in the police station area who
> are not cash starved . That is they must not use the reconcicliation process
> a money making one as most of the lawyers do. However initial counselling by
> officers in uniform in police station works. A-R Educate the Police to refrain from filing IPC 498a on a complainty by a living woman.
> a. In the absence of consensus as to mediators, who will be ideally suited
> to act as mediators/conciliators – the friends or elders known to both the
> parties or professional counsellors (who may be part of NGOs), lady and men
> lawyers who volunteer to act in such matters, a Committee of
> respected/retired persons of the locality or the Legal Services Authority of
> the District?
> Ans: A battery consisting of Common friends/ professional counsellors,
> retired persons in the locality should be counsellors. Lawyers should be
> kept out of the process as they will try to find clients in such sessions.
> School teachers without political background may also be choosen. Gender
> neutral NGO's are also welcome in the move. A-R : Strong enforcement of Offences against the administartion of Justice application in every IPC 498a case.
> b) How to ensure that the officers in charge of police stations can easily
> identify and contact those who are well suited to conciliate or mediate,
> especially having regard to the fact that professional and competent
> counsellors may not be available at all places and any delay in initiating
> the process will lead to further complications?
> Ans: The senior police and civil authority in a drive will form two such
> committee in every police station area /subdivisional area and will direct
> the warring parties to such body before enacting arrest. The mediation
> centres in courts are in poor condition . Such can also be merged with the
> courts mediation centre so that a police , court and civil administration
> based counsellors may be formed. A-R : Say no to any effort by the state in a matrimonial dispute
> 7) a) Do you think that on receipt of complaint under S.498A, immediate
> steps should be taken by the Police to facilitate an application being filed
> before the Judicial Magistrate under the PDV Act so that the Magistrate can
> set in motion the process of counselling/conciliation, apart from according
> interim protection?
> Ans: Yes that should be process alternatively is counselling system cannot
> be developed in police subdisional level. A-R , How can a Police officer understand what is cruelty?.
> Should the Police in the meanwhile be left free to arrest the accused
> without the permission of the Magistrate? :
> Ans: Never . Because if it is done the and police is left free to arrest the
> accused the process will hardly bear any fruit.A-R - Enforce the requirements of Cr.P.C in every IPC 498a case.
> b. Should the investigation be kept in abeyance till the conciliation
> process initiated by the Magistrate is completed?
> Ans; No investigation can be continued and should continue. So that clear
> picture may evolve soon. A-R , what will the Police investiagte in living woman IPC 498a case.
> Do you think that the offence should be made compoundable (with the
> permission of court)?
> Ans: Very welcome move and also very much needed one at this hour.A-R Act 46 of 1983 , the IPC 498a amendment , makes IPC 498a filed by a living woman compundable, why change the law ?.
> Are there any particular reasons not to make it compoundable?
> Ans: Yes, just to continue a inhuman regime. A-R : The Police are unaware of the fact teh IPC 498a is bailable offence , when filed as a P.C.R or as complaint front of teh Police officer. The Booming capitalist encmony of India after 1997 , saw the police, keen to make money out of IPC 498a , Hence started registering every IPC 498a case as state case.
> Do you consider it just and proper to differentiate the husband from the
> other accused in providing for bail?
> Ans: Yes it is correct. A-R : IPC 498a filed by living woman is bailable offence , Bail should be granted on the same day for a personal bond or a cash bond of Rs.2000/-
> a. Do you envisage a better and more extensive role to be played by Legal
> Services Authorities (LSAs) at Taluka and District levels in relation to
> s.498A cases and for facilitating amicable settlement? Is there a need for
> better coordination between LSAs and police stations?
> Ans: Yes very much . In North 24 parganas( West Bengal ) if you make an
> enquiry you will find a such bodies hardly functional in that stage. A-R : No comments
> b) Do you think that aggrieved women have easy access to LSAs at the
> grassroot level and get proper guidance and help from them at the
> pre-complaint and subsequent stages?
> Ans: Yes, it will be really good if women or her relatives are directed to
> counselling before lodging a complaint . That can also be done by a senior
> police officer under community police system. A-R : Educate all senior Police officer to understand IPC 498a filed by aliving woman is bailable , according to teh law. Act 46 of 1983.
> c)Are the Mediation Centres in some States well equipped and better suited
> to attend to the cases related to S,498-A?
> Ans: No idea about other states. In North 24 Parganas ,( West Bengal ) it is
> very poorly equipped and is not allowed to function properly. The motive is
> clear that if there is no litigation a section of people will not survive as
> many of them are surviving saprophytically. A-R : Police are the people to be trained on IPC 498a.
> What measures do you suggest to spread awareness of the protective penal
> provisions and civil rights available to women in rural areas especially
> among the poorer sections of people?
> Ans: Make registration of marriage mandatory. Give a leaflet to the men
> /women and they have to fill up a page in the marriage registration form
> under their handwriting about the laws. A-R : Refuse complaints by Jeans clad, english speaking women.
> Do you have any informations about the number of and conditions in shelter
> homes which are required to be set up under PDV Act to help the aggrieved
> women who after lodging the complaint do not wish to stay at marital home or
> there is none to look after them?
> Ans; Yes I have information about such. In our state of West Bengal the
> conditioan is very poor and state run such dedicated home is nil. After
> getting statistics I feel that not more than 30 ( thirty) women needs such
> rehabilitation in our state as most of them stays back in their paternal
> house. A-R PWDVA is filed for monetary gains , where is the woman staying shelter homes.
> What according to you is the main reason for low conviction rate in the
> prosecutions u/s 498A?
> Ans: Majority are False complaints that cannot face the trial. This clearly
> shows that 498 is actually becoming a torture on male and their family. A-R : IPC 498a is used by police for personal unjust enrichment
> a. Is it desirable to have a Crime Against Women Cell (CWC) in every
> district to deal exclusively with the crimes such as S.498A? If so, what
> should be its composition and the qualifications of women police deployed in
> such a cell?
> Ans: Instead every district police should have a Family Harmony Cell to deal
> with domestic vielceproblems. Under this cell let the counselling system
> function. Let this cell also handle the pre-complaint counselling. The
> process is as follows. Once a police station gets complaint it directs it to
> the cell who informs the both the parties for counselling. Once the
> counselling fails then only it is reverted back to police station for action
> . This type of cell must be supervised officer of not less than SDPO rank. A-R , Every personnel should be barred from settling any matrimonial disputes, they are baised.
> b. As the present experience shows, it is likely that wherever a CWC is set
> up, there may be substantial number of unfilled vacancies and the personnel
> may not have undergone the requisite training. In this situation, whether it
> would be advisable to entrust the investigation etc. to CWC to the exclusion
> of the jurisdictional Police Station?
> Ans: It is for the shortage and training a two central counselling system
> consisting three person will be functioning. This will definitely not be
> very hard to run. Volunteers may be inducted and four teams may be formed
> for weekly counselling. This system if formed in sub-divisional level will
> really work as we had seen this with at least 500 cases. A-R : No comments
>
> regards
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