A Guide to Fight Section 498A Ipc
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Equality, Justice and Harmony We fight for Equality among gender, Justice to all and Family Harmony A GUIDE TO FIGHT SECTION 498A IPC AUTHORS: OPEN SOURCE / COPY LEFT DATE: 23 / NOVEMBER / 2020 MyNation Hope Foundation (INDIA) Reg: S/1934/2018 Address: 133A, Pocket-C, Siddhartha Extn. New Delhi - 110014. Phone: +91-9972718212 1 Equality, Justice and Harmony We fight for Equality among gender, Justice to all and Family Harmony Table Of Contents Description Page No 1.Introduction 3 2.Some Basic Terms: 6 The Doctrine Of Binding Precedent: 8 The Right To Due Process: 9 The Magna Carta, Habeas Corpus And The Powers Of The Police To Arrest A Citizen: 10 Procedures To Be Followed Upon The Arrest Of A Person: 14 What Is Anticipatory Bail?, Bail And The Right To Bail, A Direction On Granting Bail: 15 -17 The Definition O f An Arrest, The Right Against Self Incrimination: 18 The Right To Be Treated With Dignity By The police, The Police Cannot Torture You Or Resort To 19 The Definition Of Torture And Compensation For Illegal Detention: 19 When to File For Compensation Fo r Illegal Detention: 20 -22 Inordinate Delay In Police Investigation May Lead To A Quashed FIR 22 -23 The Police Do Not Have The Right To Handcuff You, Arrest And Custody Of Women: 23 The Police Cannot Detain A Citizen For The Purpose Of An Inquiry/Interr ogation: 24 The Police Must Register A Cognizable Offence, An FIR Is A Public Document: 24 -25 The Right To A Speedy Trial,The Right To Information, The Right To Be Given A Reason: 26 DV Act Can Only Be Filed Against An Adult Male Person ,Compliance With The DP Act: 26 -27 Delhi HC Directive To IT Dept To Supply Information Under RTI Act: 27 -28 CAW Cell Proceedings Are Voluntary: Compounding A Non -Compoundable Case: 28 -29 Understanding HC Quash Petitions, Section 482 Of IPC: 29 -31 Issues Of Jurisdict ion: Jurisdiction In NRI Cases: 31 -33 A Case Lost In A Foreign Court Cannot Be Fought Again In India: 33 -35 The Police Or Courts Cannot Impound Passports: 35 -36 NBWs And Arrest Warrants: The Definition Of Mental Cruelty: 36 -37 An Explanation Of Writ Ma ndamus: 37 -38 Officers With Authority To Investigate 498A Cases: 38 Relevant Sections Of the Indian Penal Code (IPC), The Process Of Indian Criminal Justice: 38 -41 Code Of Conduct For The Police In India, A Compilation Of Police Interrogation Tactics: 41-46 3. “SPARE A THOUGHT FOR DOWRY LAW ABUSE” - CURRENT STATE 46 -51 4. What do Indian Courts Say about Section 498a IPC ? 52 -56 5. What about other side of the 498a reality? 56 -60 6. Typical traits of Complainant and accused 60 -61 7. Thought provoking q uestions about 498a 61 -62 8. Gender Biased Laws Engender injustice 62 -66 9. Steps and suggestions to Government 66 -67 10. Media Reports 68 -72 11. Domestic violence law - A shield or a sword? 72 -76 12. A few True Stories of 498a victims 76 -84 13. 498A Counter Cases To Fight Back With 84 -88 14. Judgment References. 88 -94 MyNation Hope Foundation (INDIA) Reg: S/1934/2018 Address: 133A, Pocket-C, Siddhartha Extn. New Delhi - 110014. Phone: +91-9972718212 2 Equality, Justice and Harmony We fight for Equality among gender, Justice to all and Family Harmony 1. Introduction The Supreme Court of India says, “But by misuse of the provision (IPC 498a - Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon”. Laws originally meant to protect from the dowry menace are being misused by urban ill-intentioned, unscrupulous women and their families as “an assassin’s weapon”. There is a rapidly escalating social evil in Indian families, namely the misuse of the Dowry and Cruelty laws (Criminal Laws), which were originally meant to act “as a shield” for the protection of harassed women. Nowadays, the educated urban Indian women have turned the tables. They have discovered several loopholes in the existing Indian judicial system and are using the dowry laws to harass all or most of the husband’s family that includes mothers, sisters, sisters-in-law, elderly grandparents, disabled individuals and even very young children . We are not talking about the dowry deaths or physical injury cases but about dowry harassment cases that require no evidence and can be filed just based on a single-sentence complaint by the wife. With an approximately 65,000 such accusations per year, about 200,000 people are directly affected by these false accusations. The number of such cases has increased by about 100% in the last 10 years and by more than 15% in just the last two years. This poorly formulated law is inviting unscrupulous people to file false cases, and causing the imprisonment of innocent people without investigation. These innocent people undergo stigmatization and hardship even before a trial in the court of law which leads to immense emotional, physical and financial trauma. Unable to bear the harassment, the loss of reputation and the social consequences of being implicated in a false criminal case, some of these falsely accused husbands and their elderly parents are committing suicide. Despite the recommendations of the Supreme Court of India and Justice Malimath Committee that the legislative arm should modify the laws such that the innocent are protected, the suggested amendments to the law have been largely ignored. Unconstrained, this social evil is threating the foundation of the Indian Family system. MyNation Hope Foundation (INDIA) Reg: S/1934/2018 Address: 133A, Pocket-C, Siddhartha Extn. New Delhi - 110014. Phone: +91-9972718212 3 Equality, Justice and Harmony We fight for Equality among gender, Justice to all and Family Harmony The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of criminal law. -The Supreme Court Of India, Joginder Kumar Vs State Of U.P., 1994 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 Supreme Court Of India, Joginder Kumar Vs State Of U.P., 1994 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 Supreme Court Of India, Joginder Kumar Vs State Of U.P., 1994 The accused in these cases might have been on bail - but the injustice of pendency of trial for long periods is the uncertainty and the concomitant anxiety suffered by the under-trial. The under-trial is inhibited in making future plans for his life or executing present ones due to the uncertainty which pendency of trial brings. His confidence starts to erode and at the end of the trial, even if he is honorably acquitted, the scars of the long trial remain. He feels condemned despite the acquittal. -The Supreme Court On The Right To A Speedy Trial Once a complaint is lodged under Sections 498A/406 IPC whether there are vague, unspecific or exaggerate allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non- bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. -Justice JD Kapoor, Delhi High Court Torture is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands. When the threats MyNation Hope Foundation (INDIA) Reg: S/1934/2018 Address: 133A, Pocket-C, Siddhartha Extn. New Delhi - 110014. Phone: +91-9972718212 4 Equality, Justice and Harmony We fight for Equality among gender, Justice to all and Family Harmony proceed from a person in Authority and that too by a police officer the mental torture caused by it is even more grave. -The Supreme Court Of India, Arvinder Singh Bagga v. State of U.P, 1994 Torture and police brutality are endemic in India. -Supreme Court Lawyer And Architect Of The Indian DV Act, Indira Jaising, In A London Court, 1999 I object to this exploitation of the law.