Section 498A of IPC: When presumption of ‘innocence’ is replaced with ‘guilt’, it often leads to miscarriage of justice

On 5 May, a businessman from Odisha named Rahul Agarwal committed suicide by jumping off a building. After the tragic incident, a video surfaced on various social media platforms in which the deceased was seen narrating his ordeal of being “falsely implicated” in a dowry harassment case (booked under Sec 498A of the Indian Penal Code) by his wife and her family. His parents too were accused in the case, and the deceased expressed his helplessness at not being able to do anything in that regard. Hopelessness pushed him to end his life. While the veracity of the claim made in the video is yet to be established, the fact remains that the golden thread that holds the ‘fairness’ integrant of the criminal justice system intact, expressed in terms of the cardinal principle that an accused of a crime is presumed to be innocent till proven guilty, goes for a toss in such cases. The principle of presumption of innocence till proven guilty shifts the burden of proving the guilt to the prosecution. But in certain cases like those related to Section 498A of the IPC, the burden is shifted to the defendant, who is left at the mercy of the prosecution including the police, till he proves his innocence, Presumption of innocence till proven guilty is a fundamental postulate of criminal justice which is sometimes deliberately weakened to ensure “sure-shot justice” to underprivileged or hitherto disadvantaged classes. But the entire purpose of such law fails, rather backfires when it is used as “weapons rather than as shields” by those for whom it was created to act as a safeguard. Section 498A of the IPC is one such law that is now often used as a weapon to settle personal scores, rather than being used as a shield against the harasser. In 1983, Section 498A was introduced in the IPC which states that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The reason for introducing this section was highlighted in the statement of objects and reasons of the Act. It stated that “the increasing number of dowry deaths is a matter of serious concern. Cases of cruelty by the husband and relatives of the husband, which culminates in suicide by, or murder of helpless women concern constitute only a small fraction of the cases involving such cruelty. It is, therefore, proposed to amend the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act suitably to deal effectively not only with cases of dowry death but also cases of cruelty to married women by their in-laws”. The law, which was enacted to provide a shield to a married woman from harassment by her husband and his family, has been misused to a great extent, a fact that has been acknowledged by the Supreme Court in its various judgements. In 2014, the Supreme Court made some important observations in relation to the abject misuse of Section 498A. In its judgement titled Arnesh Kumar versus the State of Bihar, the apex court held that the law was enacted to combat the menace of harassment to a woman at the hands of her husband and his relatives but the “fact that Section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives”. The judgement reads, “The simplest way to harass is to get the husband and his relatives arrested under this provision. In quite a number of cases, the bed-ridden grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested.” The apex court while citing statistics published by National Crime Records Bureau (NCRB) highlighted certain facts that were worrisome. According to the NCRB data, nearly a quarter of those arrested under this provision in 2012 were women which evidently means that mothers and sisters of the husbands were “liberally included in their arrest net”. Another disturbing fact was that while the rate of charge-sheeting in cases under section 498A of IPC was as high as 93 per cent, the conviction rate was only around 15 per cent, which is the lowest across all heads. The data makes it clear that while the cases were filed easily on the most frivolous grounds and instigations, they fell flat in the court of law not able to withstand legal scrutiny. As the crime under section 498A of IPC is a cognizable offence, it gives immense power to the police to arrest the accused without any judicial approval. While in most cases, the accused is acquitted, the tribulations of trial, litigation cost, and the stigma attached to being an undertrial and accused of a crime, together cause irredeemable damage to the life prospects of the accused persons. Acknowledging this aspect in the same judgement the apex court noted, “The arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it, so also the police. There is a battle between the lawmakers and the police and it seems that police have not learnt its lesson; the lesson implicit and embodied in the Criminal Procedure Code (CrPC). It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of the public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired results. Power to arrest greatly contributes to its arrogance, so also the failure of the Magistracy to check it.” It added, “Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to police officers who lack sensitivity or act with an oblique motive.” In his video, Rahul Agarwal talked about the same lack of sensitivity on part of the police who refused to hear his side of the story. In yet another landmark judgement titled Preeti Gupta versus the State of Jharkhand, the apex court dwelt deeply into the issue of rampant misuse of section 498A. The observations were so strong that they became a reference point for the Law Commission’s ‘243’ report probing the extent of the misuse of the law and suggesting measures to tackle it. In its judgement, the apex court called for the “serious relook of the entire provision by the legislation”. The court acknowledged the “tendency of over implication in a very large number of cases” and made two important observations that are worth noting verbatim here: (1) The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in the majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of a criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of the husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful. (2) The criminal trials lead to immense suffering for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately, a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. In a recent case titled Kahkashan Kausar alias Sonam versus The State of Bihar, which was decided in February 2022, the apex court held: “In recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A of IPC as instruments to settle personal scores against the husband and his relatives. There is an increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long-term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute if left unchecked would result in misuse of the process of law.” The Justice Malimath Committee on Reforms of Criminal Justice System, which submitted its report in 2003, made an important recommendation to check the misuse of the law. The Committee recommended making the offence under Section 498A, bailable and compoundable. The Malimath Committee, in its report, observed: “A less tolerant and impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, especially if the husband cannot pay. Now the woman may change her mind and get into the mood to forget and forgive. The husband may also realise the mistakes committed and come forward to turn over a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she cannot do so as the offence is non-compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family. This Section, therefore, helps neither the wife nor the husband.” It added, “The offence being non-bailable and non-compoundable makes an innocent person undergo stigmatisation and hardship. Heartless provisions that make the offence non-bailable and non-compoundable operate against reconciliations. It is, therefore, necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together.” Misuse of any law renders its basic purpose of acting as a deterrent useless and poses a grave challenge to the judiciary. The credibility of a criminal justice system depends upon a principle formulated by English jurist William Blackstone in his seminal work Commentaries on the Laws of England. The principle states that it is better that ten guilty persons escape than that one innocent suffer. However, when the presumption of innocence is replaced with the presumption of guilt, the above-mentioned principle goes for a toss and it poses a real challenge to a fair trial often leading to miscarriage of justice. The author is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective. He writes on Law, Governance and Politics. Views expressed are personal. Read all the Latest News , Trending News , Cricket News , Bollywood News , India News and Entertainment News here. Follow us on Facebook , Twitter and Instagram .