Allahabad HC's Direction To Constitute Family Welfare Committees To Look Into '498A' Complaints Violates Supreme Court Judgments

Taking 'guidance' from the judgment of the Supreme Court in Social Action Forum for Manav Adhikar Vs. Union of India, the Allahabad High Court recently directed constitution of 'Family Welfare Committee' to look into Section 498A IPC complaints.,

Apparently, the Supreme Court judgment which guided the High Court, had declared that such directions are impermissible.

The Supreme Court in Rajesh Sharma and others v. State of U.P. and another AIR 2017 SC 3869 : 2017 (8) SCALE 313 issued several directions including conferring powers on the Family Welfare Committee to be constituted by the District Legal Services Authority to look into the criminal complaints under Section 498-A IPC in the first instance. It was directed that till such time a report of the committee is received, no arrest should be made. 

In Social Action Forum for Manav Adhikar 2018 (10) SCC 443, a three judge bench of the Apex Court considered the question whether such directions should have been issued.

"In Rajesh Sharma (supra), there is introduction of a third agency which has nothing to do with the Code and that apart, the Committees have been empowered to suggest a report failing which no arrest can be made. The directions to settle a case after it is registered is not a correct expression of law", the court held in the judgment.

Similarly, the Supreme Court had allowed the Centre's petition seeking review of its judgement which had virtually diluted provisions of arrest under the SC/ST Act. The Court observed that powers under Article 142 of the Constitution could not have been exercised to pass directions against the statute.

Further, in its judgment quashing sedition case against Journalist Vinod Dua, the Supreme Court had rejected the plea to direct the State Governments to constitute committees to conduct preliminary inquiry before FIRs are registered against senior journalists. Such directions, it was held, would amount to encroachment upon the field reserved for the legislature

Now, the Allahabad High Court has issued the following directives:

(i) No arrest or police action to nab the named accused persons shall be made after lodging of the FIR or complaints without concluding the "Cooling-Period" which is two months from the lodging of the FIR or the complaint. During this "Cooling-Period", the matter would be immediately referred to Family Welfare Committee (hereinafter referred to as FWC) in the each district.

(ii)Only those cases which would be transmitted to FWC in which Section 498-A IPC along with, no injury 307 and other sections of the IPC in which the imprisonment is less than 10 years.

(iii)After lodging of the complaint or the FIR, no action should take place without concluding the "Cooling-Period" of two months. During this "Cooling-Period", the matter may be referred to Family Welfare Committee in each districts.

(iv)Every district shall have at least one or more FWC (depending upon the geographical size and population of that district constituted under the District Legal Aid Services Authority) comprising of at least THREE MEMBERS. Its constitution and function shall be reviewed periodically by the District & Sessions Judge/Principal Judge, Family Court of that District, who shall be the Chairperson or Co-chairperson of that district at Legal Service Authority.

(v)The said FWC shall comprise of the following members :- (a) a young mediator from the Mediation Centre of the district or young advocate having the practices up to five years or senior most student of Vth year, Government Law College or the State University or N.L.Us. having good academic track record and who is public spirited young man, OR; (b) well acclaimed and recognized social worker of that district having clean antecedant, OR; (c) retired judicial officers residing in or nearby district, who can devote time for the object of the proceeding OR; (d) educated wives of senior judicial or administrative officers of the district.

(vi)The member of the FWC shall never be called as a witness.

(vii)Every complaint or application under Section 498A IPC and other allied sections mentioned above, be immediately referred to Family Welfare Committee by the concerned Magistrate. After receiving the said complaint or FIR, the Committee shall summon the contesting parties along with their four senior elderly persons to have personal interaction and would try to settle down the issue/misgivings between them within a period of two months from its lodging. The contesting parties are obliged to appear before the Committee with their four elderly persons (maximum) to have a serious deliberation between them with the aid of members of the Committee.

(viii)The Committee after having proper deliberations, would prepare a vivid report and would refer to the concerned Magistrate/police authorties to whom such complaints are being lodged after expiry of two months by inserting all factual aspects and their opinion in the matter.

(ix)Continue deliberation before the Committee, the police officers shall themselves to avoid any arrest or any coercive action pursuant to the applications or complaint against the named accused persons. However, the Investigating Officer shall continue to have a peripheral investigation into the matter namely preparing a medical report, injury report, the statements of witnesses.

(x)The said report given by the Committee shall be under the consideration of I.O. or the Magistrate on its own merit and thereafter suitable action should be taken by them as per the provision of Code of Criminal Procedure after expiry of the "Cooling-Period" of two months.

(xi)Legal Services Aid Committee shall impart such basic training as may be considered necessary to the members of Family Welfare Committee from time to time(not more than one (26) week).

(xii)Since, this is noble work to cure abrasions in the society where tempos of the contesting parties are very high that they would melow down the heat between them and try to resolve the misgivings and misunderstandings between them. Since, this is a job for public at large, social work, they are acting on a pro bono basis or basic minimum honrarium as fixed by the District & Sessions Judge of every district.

(xiii)The investigation of such FIRs or complaint containing Section 498A IPC and other allied sections as mentioned above, shall be investigated by dynamic Investigating Officers whose integrity is certified after specialized training not less than one week to handle and investigate such matrimonal cases with utmost sincerity and transparancy.

(xiv)When settlement is reached between the parties, it would be open for the District & Sessions Judge and other senior judicial officers nominated by him in the district to dispose of the proceedings including closing of the criminal case.

The direction to constitute Family Welfare Committees and further directions barring registration of FIR etc during cooling off period is in the teeth of the Supreme Court judgment from which it took 'guidance' from.