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
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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.
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)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.
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 .
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.
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.
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. 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.
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.
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.
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.
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.
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.
Are there any particular reasons not to make it compoundable?
Ans: Yes, just to continue a inhuman regime.
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. 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.
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.
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.
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.
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.
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. 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.
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.
regards
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