Tuesday, 25 September 2018

Rajesh Sharma SC Judgment - 2017 vs 2018

SUPREME COURT reviews Rajesh Sharma vs State of UP

what it means for Indian men, victims of #False498A 

In 2017, Hon'ble Supreme Court (2 Judges bench) had given pathbreaking Guidelines to bring some sense into the IPC 498A complaints before they become FIR and a Criminal Case. 

In 2018, Hon'ble Supreme Court (3 Judges bench under CJI) reviewed it and changed the earlier order. 

This blog helps you understand OLD vs NEW Judgments.

Hope below image helps you:

Rajesh Sharma Judgment OLD vs NEW

 

In Table format too for easy Copy-Paste:

S. No. Clause No.
Rajesh Sharma vs State of UP
27th July 2017
SAFMA vs Union of India
14th Sept 2018
What it Means?
1 19(i)(a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.  39. In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the direction given hereinabove.

38. In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest.
Concept of Family Welfare Committee is not there anymore so earlier process of Mediation by CAW Cell / Mediation Cell / Mahila Thana for Criminal Complaint received by Wife would continue as is. As followed earlier, CAW Cell would do mediation and try reconciliation and if mediation fails then the Complaint may be forwarded to register the FIR.
2 19(i)(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.
3 19(i)(c)  The Committee members will not be called as witnesses.
4 19(i)(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication. 
5 19(i)(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint. 
6 19(i)(f) The committee may give its brief report about the factual aspects and its opinion in the matter. 
7 19(i)(g) Till report of the committee is received, no arrest should normally be effected. 
8 19(i)(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit. 
9 19(i)(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time. 
10 19(i)(j) The Members of the committee may be given such honorarium as may be considered viable. 
11 19(i)(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper. 
12 19(ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today; Hon'ble SC has asked DGP of each State Police to ensure that IOS dealing with IPC 498A complaints should be properly trained on Principles of Arrest.
13 19(iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord; 40. Direction No. 19(iii) is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh (supra), shall dispose of the same. Since IPC 498A is Non-Compoundable, only a High Court can Quash the FIR in case of a compromise, as was being done earlier.
14 19(iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed; Therefore, we do not find anything erroneous in direction Nos. 19(iv) and (v) 1. AB/RB petitions to be decided on same day, as far as possible.
2. Recovery of disputed dowry articles not a ground to reject bail if rights of wife/minor children can otherwise be protected.
3. Bail to be dealt with carefully by courts.
15 19(v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine; Impounding of passport of RCN should not be a routine.
16 19(vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and  So far as direction No. 19(vi) and 19(vii) are concerned, an application has to be filed either under Section 205 CrPC or Section 317 CrPC depending upon the stage at which the exemption is sought. No specific comment on Clubbing of cases. So it is wait and watch.
17 19(vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.  For exemption use CrPC 205 / CrPC 317.
18 19(viii) These directions will not apply to the offences involving tangible physical injuries or death.