what is 498A, Cognizable or Non-Cognizable

The SC judgment in Appeal (crl.)  1716 of 2007 ONKAR NATH MISHRA & ORS. Vs. STATE (NCT OF DELHI) & ANR. on 14/12/2007 by Division BENCH of  ASHOK BHAN & D.K. JAIN JJ. has made it clear again that 498a IPC was enacted for dowry death and cruelty. I quote from the judgment delivered by Justice DK Jain of SC :
       “Section 498A I.P.C. was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives.  Nevertheless, the provision should not be used as a device to achieve oblique motives.”
 
  So what is 498a IPC ? Stick to the existing 498a IPC and do not demand any change.  The present 498a IPC protects husband and his relatives.  Living woman for cruelty has to file a non cocognizable case in the court of MM/JMFC of teh area for alleging cruelty and not fight at cost of state government.  So the safety is in the following legal provisions in 498a IPC explained:   What is 498A IPC: Answered – Compact – reality practice of law . (Be read with SC judgment of 19/7/2005 Sushilkumar sharma Vs. U.O.I. and Ors. (2006-6-SCC-281) with SC judgment in Onkar Nath Mishra & Ors Vs. Delhi Government referred above of December 2007   (The Fonts are original and cannot be changed herein)

FOR WHAT PURPOSES THE SECTION 498A IPC IS CREATED BY PARLIAMENT SINCE 25 DEC 1983 – Is it for ensuring safety of living woman or for allowing Extortion by Living Woman from husband side?

         Answer: 498A IPC For saving life of wife. 498A IPC is not a tool or weapon for making dowry demand and other extortions by wife.

PREFACE :

   REPETITION OF SAME OFFENCE ALLEGATIONS, IS UNLAWFUL AND ADDS ADDITIONALLY ULTERIOR MOTIVES FOR ALIEN PURPOSES INCLUDING TO OBTAIN EXTORTION UNDER CRIMINAL THREAT OF PUNISHMENT ON FALSE ALLEGATIONS.
The sections 323 IPC, 504 IPC, 506 IPC (All are Non-Cognizable Offences in Maharashtra) deal with such offences which are included in the section 498A IPC for cruelty leading to dowry death as well as the offence is “not cognizable” when degree of alleged cruelty to wife lets the wife remain alive and not commit suicide. The Purpose of Parliament  is defeated for its legislation of procedures in Criminal (Amendment) ACt No.46 of 1983 for section 498A IPC that was legislated under section 2 of the Crl. Act No.46/1983. 
       When the procedure itself is not in accordance with law making the concerned authorities to work in disobedience of law. It amounts to fraud upon every concerned person.

  Any   proceedings based upon fraud cannot lead to justice according to Supreme Court of India judgments  from time to time in luding in Express Newspaper case judgment.We quote from Express Newspapers  Vs.  Union of India & Ors. SC judgment on 07/10/1985   by Supreme Court’s Division Bench   SEN, A.P. (J), VENKATARAMIAH, E.S. (J), MISRA, R.B. (J)  

Citation – 1986 AIR  872; 1985 SCR   Supl. (3) 382, 1986 SCC  (1) 259; 1985 SCALE (2)973.
“  6(ii)Fraud on  power voids the  order  if it   is not exercised   bona  fidefor  the  end  design.            There  is  a distinction  between exercise  of power  in good  faith and misuse in bad faith. The former arises when an authority misuses its power  in breach of law, say, by taking into account bona fide, and with best   of intentions,  some extraneous  matters  or  by  ignoring relevant   matters. That  would render the impugned act or         order ultra  vires. It would be  a case of fraud on powers. The  misuse in bad faith  arises when the power is exercised for   an improper motive, say, to satisfy a private or  personal  grudge or for wreaking vengeance of a Minister.

           A power is  exercised maliciously   if  its  repository  is motivated   by  personal  animosity  towards  those   who are directly affected   by its  exercise. Use  of a power for an `alien’ purpose other than  the one   for which the power is conferred is  mala fide use of that   power.  Same  is  the position when an order is made for a purpose other than  that which finds  place in   the  order.  The  ulterior  or   alien purpose clearly speaks of the misuse of the power .” Unquote.

Section 498A IPC (Added in 1983) IS INDEPENDENT & NOT SUPPLEMENT TO DOWRY PROHIBITION ACT 1961:- 

           DOWRY DEMAND after marriage cannot be in connection with marriage or say in connection with CONTINUATION of marriage by any spouse’s demand for dowry in any manner whatsoever including  dowry demand by way of extortion under abuse of sec. 498A IPC by living woman.
 
Use of section 406 IPC tagged with Dowry Prohibition Act 1961 (DPA) is creation of prejudiced minds especially when there is no dowry  list signed by both spouses.  Alien purpose for such illegality: Extortion of wealth and ILLEGALLY FORCED mutual consent divorce by using the power  of authority in illegal manner in name of legal manner for living wife u/s. 498a IPC. 
           The provisions in DPA cannot be abused for ulterior motives.    Cases u/s. 3 and 4 of the Dowry Prohibition Act have to be dealt separately and simultaneously AGAINST givers of dowry.

However the dowry  demand element is included in 498A IPC, so no overlapping of the same offence is possible unless ulterior motives are poresent to get the fear of punishment work fast for extortions for Wife or in the name of wife (woman). Dowry demand allegation that is also inclusive in section 498A IPC.
            Section 3 of DPA 1961 can be used by police officer to arrest parents of the wife for accepting giving and abetting giving of dowry – wife allegedly abetting in “giving/taking” and retaining the dowry with  herself and blaming her husband side at convenient time especially after leaving husband’s house for alien purposes.

             Section 7(c) of DPA 1961 cannot be used at any later date when any dissatisfaction is prominently revealed/seen in the minds of wife or her parents etc. because it encourages  promoting false  allegations of giving dowry BECAUSE of advance general/universal assurance of Government’s police officer to wife side will be not arrested for giving dowry. Such assurances ensure 100% false allegations of

dowry with or without “divorce demand” or “498A IPC allegations”.

             Abuse of 498A IPC is not permissible, even after failure of marriage, or for making new marital relations with other man or with previous lover of wife. It invites section 498 IPC. Husband cannot be deprived of company of his wife.

498A IPC: In legal terms, 498A is an offence allegation, which is both non-cognizable  OR cognizable respectively in circumstances of living woman remaining ALIVE  or dowry death of woman,  because of CRUELTY/Harassment :-

Cognizable : Offences are divided into cognizable and non-cognizable . By law, the police are duty bound to register and investigate a cognizable offence allegations as per law.

           498A IPC is not cognizable offence in case of living woman alleging cruelty.

               Section 498A IPC is basically non-cognizable offence in case of living woman and police officer cannot act without order of magistrate having jurisdiction. Police Officer has to act u/s. 155(1) of  Cr.P.C. in case of 498A IPC used by/for a (wife) living woman.  And the magistrate cannot order for arrest but if needed bail is to be given on demand in this family matter.

                        Section 498A IPC shall be non-cognizable in case of living woman. Refer to  sec.198A  Cr.P.C.: It lays the procedure for taking cognizance for offence u/s. 498A IPC  by Magistrate only in following manner depending upon the natural state of woman(wife) and not influenced through any unnatural state of living woman (for cognizable purposes) created u/s. 155(4) Cr.P.C..

       Remember 498A IPC read with Crl. Act 46/1983 is defining the law for 498A IPC when it is to be treated as cognizable if there is alleged crime like dowry death as per section 198A Cr.P.C. (198A IPC).

        So no other procedure can be used to change 498A IPC’s sanctity of predecided natural requirements for using procedures for 498A IPC as NON-COGNIZABLE offence when there is only cruelty to living woman and as COGNIZABLE OFFENCE when there is given through legislation by Parliament  :-

      i.  Magistrate to take cognizance On Police Report
                              Or
       ii.  Magistrate to take cognizance On Complaint i.e.   not on a Police Report.
 

 ’Complaint’ is defined in section 2(d) of the Cr.P.C.. Allegations against husband side to JMFC/MM u/s. 498A IPC for alleged cruelty.  Latter (above para. ii) is meant for LIVING wife.
      So, the above (i) is for dowry death and
                    (ii) is for living woman.
 

Both alternatives are being illegally made to let accused persons believe 498A IPC is cognizable as in dowry death u/s. 498A IPC whether living or dead. Punishing husband side for letting wife remain alive?

        Submitting Police Reports are illegal  when submitted as of a cognizable offence in case of both living and dead woman in matter of 498A IPC. It is disobedience of law.  Police Report can be filed in case of dowry death u/s. 498a IPC.

       Statutes never make repetitions while being legislated.   198A Cr.P.C. does not mean Police Report for both alternatives  in the two alternatives given in 198A Cr.P.C.: Magistrate to take Cognizance on a) Police Report OR on b) Complaint i.e. not-on-police-report. See section 2(d) of CrPC. 

     The STATUTE (Crl. Act No. 46/1983) has laid manner or say the conditions how procedures are to be followed for cruelty u/s. 498A IPC  i.e. on Complaint Or on Police Report. So the status where complaint (not on police report) is prescribed as a procedure, it cannot be deleted and replaced with police report.

      Since the procedure is defined for 498A IPC in Crl. ACt No. 46/1983 so procedure in any other manner is not LEGALLY permissible. If contrary is done, it amounts to intending alien purposes for achieving ulterior motives for or in name of wife.

      The accepted principal of law is that where the law prescribes to act in  certain manner, the concerned authorities cannot act in any other manner than as prescribed by and in the legislation/statute.

     So for living woman, police report as in cognizable offence (dowry death in 498a IPC category) method cannot be used as it is not as per law.
           

Non-Cognizable : The police officer of a Police Station will register a 498A IPC case on say of LIVING WOMAN (reduced in writing) since it is required by law, and the police officer incharge of  police station has to send the same information got registered by living wife to the Magistrate as per Section 155(1) of Cr.P.C. .

Bailable : There are two kinds of offences, bailable and non-bailable. 498A is bailable as complaint can only be made by living woman to JMFC / MM and there is no dowry death of the woman. This means that   bail will be given by the magistrate/police officer and the police officer has no power to arrest as in non-cognizable offence.

Non-Bailable is in case of dowry death: Police has power to arrest without warrant issued by the magistrate. The arrest is not necessary in family matters as none can run away especially when  the wife is alive (as in abuse presently). Fundamental Rights of life includes liberty have to be taken in mind and no arrest made of husband side because of the Supreme Court of India’s directives from time to time that arrest is not  neccessary even in Cognizable cases including directives of the apex court  in Joginder Vs. State of UP (1994). Arrest of suspect is not essential even in cognizable cases as per circumstances in each case.

In actual law legislated by Parliament in Criminal (Amendment) Act No. 46 of 1983, section 498A IPC is the ONLY sole PENAL LAW that has two kinds of conditional  alternative procedures i.e. either being Cognizable (in case of suspected dowry death) OR Non-Cognizable (Living wife making allegations of cruelty).

       Cognizable (Dowry Death of wife within 7years like 304B IPC which is also for Dowry Death of wife within 7years of marriage). Both conditions of woman as alive wife and dead wife cannot be treated as same kind of “degree of offence”:-

Disobedience of Law for 498A IPC : Section 498A IPC is projected as Non-Bailable by making it as Cognizable by Tagging 498A IPC to any clearly known cognizable offence  penal section for abusing criminal process including section 155(4) CR.P.C. or without any tagging, is gross deliberate disobedience of the procedures legislated for 498A IPC. 
       Using 498A IPC for living woman (wife) as cognizable offence  is flourishing organized ‘trade’ by criminal intentioned gang of authorities who make it happen by disobeying laws deliberately. 

             EXPLANATION: The Legislature has made section 498A IPC for being used clearly for two alternate CONDITIONS in which (a) woman is alive and the other (b) condition of living woman is death of woman.

           So by tagging 498A IPC in case of living wife to a cognizable section is total disobedience of law for ulterior motives.

          So section 498A IPC cannot be tagged with other cognizable sections as it defeats the purpose of law for 498A IPC.   

* Illegally “making” cognizable offence by tagging 498A IPC for LIVING WOMAN for ease of “lightening” arrest of husband side as applicable in case of dowry death “In case of suspicion only”.

**  Criminal extortions by wife being mainly RANSOM of  wealth and forced mutual consent divorce in lieu of  “withdrawing” 498a IPC tagged F.I.R. .

*** State Government does not keep tracks officially of the living 498A woman to keep tap on her ulterior motives, as to what kind of life she is leading being supported at cost of Governmnet money.

        It is deliberate state terrorism by spending  public money to finance living woman to abuse 498A IPC with aid of authorities concerned as her attempt to achieve her ulterior motives for alien purposes i.e. other than for which the law 498A IPC was made by the Parliament of India.

      TAGGING 498A IPC FOR LIVING WOMAN IN F.I.R. AMOUNTS TO WORKING DELIBERATELY IN

DISOBEDIENCE OF LAW:    NO AUTHORITY CAN make the section 498A IPC COGNIZABLE IN ANY OTHER MANNER THAN THE MANNER SET BY PARLIAMENT in Crl. Act No.46/1983 inserted for Indian Penal Code, CR.P.C. and  Indian Evidence Act.

      Cruelty to Living woman not leading to dowry/death (Non-Cognizable) and the other dowy death of living woman are two separate offence and same can be dealt u/s. 498A IPC differently.

      In case of dowry death of suspected suicide, section 498A IPC is not advisable to be used as there is specific 304B IPC for the purpose.

TAGGING 498A IPC IN DOWRY DEATH CASE WITH SECTION 304B IPC (Both are applicable for suicide by wife within 7years of marriage):  It amounts to ulterior motives including to get the punishment made even to innocent or all innocent husband side. This is the only  one set of two penal procedures (498A + 304B IPC)  that deal with the same kind of offence.

    Question of Law and Fundamental Rights to life and Equality : As soon as the section 304B IPC was enacted by the Parliament, the Parliament should have simultaneously taken out the suicide part  of offence out in 498A IPC from the two tier section 498A IPC by removing its qualifying clause replaced with word NON-COGNIZABLE for cruelty and making it BAILABLE offence. So judicial authorities should keep this  in mind and not allow repetition of allegations for same alleged crime booked under more than one section of IPC specifically identical 498A and 304B IPC for suicide of women with 7years being common in both. 

                  Justice Malimath Committee recommendation was to make 498A IPC bailable which can be only done by making the said law applicable to only and limited to cruelty allegations as NON-COGNIZABLE offence upon living woman.

          Cognizable offence of dowry death cannot be made bailable and it cannot remain in the section 498A IPC (dowry death including suicide) as a qualifying clause to make it cognizable and so it cannot be made bailable.  The Dowry death (suicide) is also covered by 304B IPC.

    Overlapping law for similar dowry death is not valid.    Hence the need for doing away with the cognizable part of the section 498A IPC as dowry death was revised to be covered u/s 304B Cr.P.C. . So not using 498A IPC (cognizable offence part) for dowry death is practical duty of every magistrate and judge of any court.

               So the element of dowry death in 498A IPC has to be removed by practice of objective justice by judicial authorities that may be connected, till the legislature remedies the duplicacy of the same offence originally in 498A IPC (DOWRY DEATH) and repeated in section 304B IPC (DOWRY DEATH).

      Hence Justice Malimath has rightly suggested long back to make the 498A IPC bailable which can be only possible after repealing the dowry death allegations part embedded already in section 498A IPC which is meant for living wife OR dead wife in the same legilsation. Unique feature in 498A IPC being the only section in the IPC that is applicable in two alternate conditions of wife.

Thoughts From : Sushilkumar Sharma