CASE NO.:Writ Petition (civil) 141 of 2005 - Citation: JT 2005 (6) SC 266
PETITIONER:Sushil Kumar Sharma
RESPONDENT:Union of India and Ors.
DATE OF JUDGMENT: 19/07/2005
BENCH:Arijit Pasayat & H.K. Sema
Arijit Pasayat, J.
By this petition purported to have been filed under Article 32 of theConstitution of India, 1950 (in short `the Constitution') prayer is todeclare Section 498A of Indian Penal Code, 1860 (in short `the IPC') to beunconstitutional and ultra vires in the alternative to formulate guidelinesso that innocent persons are victimized by unscrupulous persons makingfalse accusations.
Further prayer is made that whenever, any court comes to the conclusionthat the allegations made regarding commission of offence under Section 498IPC are unfounded, stringent action should be taken against person makingthe allegations. This according to the petitioner, would discourage personsfrom coming to courts with unclean hands and ulterior motives. Severalinstances have been highlighted to show as to how commission of offencepunishable under Section 498A IPC has been made with oblige motive and witha view to harass the husband, in-laws and relatives.
According to the petitioner there is no prosecution in these cases but persecution. Reliance was also placed on a decision rendered by a learned Single Judge of the Delhi High Court wherein concern was shown about the increase in number of false and frivolous allegations made. It was pointedout that accusers are more at fault than the accused. Persons try to takeundue advantage of the sympathies exhibited by the courts in mattersrelating to alleged dowry torture.
Section 498A appears in Chapter XXA of IPC.
Substantive Sections 498A IPC and presumptive Section 113-B of the IndianEvidence Act. 1872 (in short `Evidence Act') have been inserted in therespective statutes by Criminal Law (Second Amendment) Act, 1983.
Section 498A IPC and Section 113-B of the Evidence Act include in theiramplitude past events of cruelty. Period of operation of Section 113-B ofthe Evidence Act is seven years, presumption arises when a woman committedsuicide within a period of seven years from the date of marriage.
Section 498 reads as follows:
"498A: Husband or relative of husband of a woman subjecting her to cruelty-Whoever being the husband or the relative of the husband of a woman,subjects such woman to cruelty shall be punished with imprisonment for aterm which may extend to three years and shall also be liable to fine.
Explanation-For the purpose of this section `cruelty' means-
(a) any wilful conduct which is of such a nature as is likely to drive thewoman to commit suicide or to cause grave injury or danger to life, limb orhealth (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view tocoercing her or any person related to her to meet any unlawful demand forany property or valuable security or is on account of failure by her or anyperson related to her to meet such demand."
Section 113-B reads as follows:-
"113-B: Presumption as to dowry death-When the question is whether a personhas committed the dowry death of a woman and it is shown that soon beforeher death such woman has been subjected by such person to cruelty orharassment for, or in connection with, any demand for dowry, the Courtshall presume that such person had caused the dowry death.
Explanation-For the purpose of this section `dowry death' shall have thesame meaning as in Section have the same meaning as in Section 304-B of theIndian Penal Code (45 of 1860)."
Consequences of cruelty which are likely to drive a woman to commit suicideor to cause grave injury or danger to life, limb or health, whether mentalor physical of the woman is required to be established in order to bringhome the application of Section 498A IPC. Cruelty has been defined in theexplanation for the purpose of Section 498A. It is to be noted thatSections 304-B and 498A, IPC cannot be held to be mutually inclusive. Theseprovisions deal with two distinct offences. It is true that cruelty is acommon essential to both the Sections and that has to be proved. Theexplanation to Section 498A gives the meaning of `cruelty'. In Section 304-B there is no such explanation about the meaning of `cruelty'. But havingregard to common background to these offences it has to be taken that themeaning of `cruelty' or `harassment' is the same as prescribed in theExplanation to Section 498A under which `cruelty' by itself amounts to anoffence.
The object for which Section 498A IPC was introduced is amply reflected inthe Statement of Objects and Reasons while enacting Criminal Law (SecondAmendment) Act No. 46 of 1983. As clearly stated therein the increase innumber of dowry deaths is a matter of serious concern. The extent of theevil has been commented upon by the Joint Committee of the Houses toexamines the work of the Dowry Prohibition Act, 1961. In some cases,cruelty of the husband and the relatives of the husband which culminate insuicide by or murder of the helpless woman concerned, which constitute onlya small fraction involving such cruelty. Therefore, it was proposed toamend IPC, the Code of Criminal Procedure, 1973 (in short `the Cr.P.C.')and the Evidence Act suitably to deal effectively not only with cases ofdowry deaths but also cases of cruelty to married women by the husband, inlaws and relatives. The avowed object is to combat the menance of dowrydeath and cruelty.
One other provision which is relevant to be noted is Section 306 IPC. Thebasic difference between the two Section i.e. Section 306 and Section 498Ais that of intention. Under the latter. cruelty committed by the husband orhis relations drag the women concerned to commit suicide, while under theformer provision suicide is abetted and intended.
It is well settled that mere possibility of abuse of a provisions of lawdoes not per se invalidate a legislation. It must be presumed, unlesscontrary is proved, that administrative and application of a particular lawwould be done "not with an evil eye and unequal hand" (see A Thangal KunjuMusaliar v. M. Venkatachalam Potti, Authorised Official and Income-Taxofficer and Anr., AIR (1956) SC 246.
In Budhan Choudhry and Ors. v. State of Bihar, AIR (1955) SC 191 acontention was raised that a provision of law may not be discriminatory butit may land itself to abuse bringing about discrimination between thepersons similarly situated. This court repelled the contention holding thaton the possibility of abuse of a provision by the authority, thelegislation may not be held arbitrary or discriminatory and violative ofArticle 14 of the Constitution.
From the decided cases in India as well as in United States of America, theprinciple appears to be well settled that if a statutory provision isotherwise intra-vires, constitutional and valid, mere possibility of abuseof power in a given case would not make it objectionable, ultra-vires orunconstitutional. In such cases, "action" and not the "section" may bevulnerable. If it is so, the court by upholding the provision of law, maystill set aside the action; order or decision and grant appropriate reliefof the person aggrieved.
In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors.,  5SCC 536, a Bench of 9 Judges observed that mere possibility of abuse of aprovision by those in charge of administering it cannot be a ground forholding a provision procedurally or substantively unreasonable. InCollector of Customs v. Nathella Sampathu Chetty,  3 SCR 786 thisCourt observed:
"The possibility of abuse of a statute otherwise valid does not impart toit any element of invalidity." It was said in State of Rajasthan v. Unionof India,  3 SCC 592 "it must be remembered that merely because powermay sometimes be abused, it is no ground for denying the existence ofpower. The wisdom of man has not yet been able to conceive of a Governmentwith power sufficient to answer all its legitimate needs and at the sametime incapable of mischief." (Also see: Commissioner, H.R.E. v. SriLakshmindra Thirtha Swamiar of Sri Shirur Meth,  1005.
As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat, 6 SCC 672, Unique Butle Tube Industries (P) Ltd. v. U.P. FinancialCorporation and Ors.,  2 SCC 455 and Padma Sundara Rago (dead) andOrs. v. State,  3 SCC 533. while interpreting a provision, the Courtonly interprets the law and cannot legislate it. If a provision of Law ismisused and subjected to the abuse of the process of law, it is for thelegislature to amend, modify or repeal it, if deemed necessary.
The judgment of the Delhi High Court on which reliance was made wasrendered in the case of Savitri Devi v. Ramesh Chand and Ors. In that casewhile holding that the allegations regarding commission of offencepunishable under Section 498A IPC were not made out. Certain observationsin general terms were made about the need for legislative changes. Thecomplaint had moved this Court against the judgment on merits in SLP(Crl).....of 2003 entitled Savitri Devi v. Ramesh Chand and Ors. By orderdated 28.11.2003 this Court observed as follows:
"Heard learned counsel for the petitioner.
We do not see any merit in the challenge made to the order of the High Court in Criminal Revision No. 462 of 2002 on the facts of the case. the special leave petition is, therefore, dismissed.
At the same time, we express our disapproval of some of the generalized views expressed in paragraphs 23 to 32 of the judgment of the High Court by the learned Single Judge. The learned Judge ought to have seen that such observations, though may be appropriate for seminars or workshops, should have been avoided being incorporated as part of a court judgment. Some of the views also touch upon Legislative measures and wisdom of legislative policy in substance, which according to the learned Judge need to be taken into account. There was no scope for considering all such matters in the case which was before the learned Judge. It is therefore, appropriate that such generalized observations or views should meticulously avoided by Courts in the judgments."
Above being the position we find no substance in the plea that Section 498Ahas no legal or constitutional foundation.
The object of the provision is prevention of the dowry meance. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have filed with obligue motive.In such cases acquittal of the accused does not in all cases wipe out the ignomy suffered during and prior to trial. Sometimes adverse media coverageadds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence tounscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways howthe makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation withinthe existing frame work. As noted the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can beunleashed. The provision is intended to be used a shield and not assassins'weapon. If cry of "wolf" is made too often as a prank assistance andprotection may not be available when the actual "wolf" appears. There is noquestion of investigating agency and Courts casually dealing with theallegations. They cannot follow any strait jacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight ofthat ultimate objective of every legal system is to arrive at truth, punishthe guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner thatthe investigating agencies and the courts start with the presumption thatthe accused persons are guilty and that the complainant is speaking thetruth. This is too wide available and generalized statement. Certainstatutory presumption are drawn which again are reputable. It is to benoted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases nodirect evidence is available and the courts have to act on circumstantialevidence. While dealing with such cases, the law laid down relating tocircumstantial evidence has to be kept in view.
Prayer has been made to direct investigation by the Central Bureau ofInvestigation (in short the `CBI') in certain matters where the petitioneris arrayed as an accused. We do not find any substance in this plea. If thepetitioner wants to prove his innocence, he can do so in the trial, if held.
The Writ Petition is accordingly disposed of.
This citation is also included in this post: http://at498a.blogspot.com/2006/07/please-report-on-misuse-of-ipc-section.html