Myths regarding arrest in 498a cases

In the event of a matrimonial dispute between a husband and a wife, the wife may file a complaint with the Crime Against Women Cell at the police station (CAW Cell, also known as Mahila Thana or Parivar Paramarsh Kendra). One of the most common fears of the husband after being contacted by the CAW cell is being arrested or going to jail because of the wife’s complaint.

Here are some of the stages that follow when a woman files a complaint against her husband which explain the process after the CAW cell complaint is filed.

COMPLAINT STAGE: The CAW cell was established solely to resolve matrimonial disputes between husband and wife. Initially, the wife must file a written complaint with the CAW cell about her husband and their relatives subjecting her to cruelty during the marriage. The CAW cell attempts to counsel the wife. When the wife refuses to take back the complaint, the CAW cell registers the complaint and sends a notice of appearance or request letter to the husband and his relatives, stating the parties to appear at the CAW cell. This can be aggravating because a wife may file a complaint in a different city or state, and the husband may have to travel multiple times to attend CAW cell dates. The husband may choose to ignore this step and refuse to cooperate with the police, but it is generally recommended that he cooperates fully with the police. At this point, efforts are made to reconcile both parties and resolve the issues. A formal investigation of the crime is not supposed to be conducted by the CAW cell. It only needs to make an effort at reconciliation. They may proceed to the next stage if the reconciliation effort fails.

AFTER FILING OF THE FIR: At this point, the CAW cell may send a copy of the complaint to a legal cell, which may provide input on the filing of the FIR. The CAW cell may, with permission from appropriate superiors, convert the complaint into a FIR and lodge it on its own or forward it to the respective police station for filing a FIR. The formal investigation begins at this point, and an Investigating Officer (IO) may be appointed. The IO may issue a CrPC 41A notice for your participation in and cooperation with the investigation. At this point, attending dates at the police station will be required. The IO may put both parties, mainly the husband, under pressure to reach an amicable settlement. IO cannot arrest the husband or any other accused at this time after receiving a CrPC 41A notice. Sharing your evidence with the police during the investigation is not recommended because they may prepare the wife for trial. If the CrPC 41A notice is followed, the husband may not even need to hire a lawyer at this point. Only if the sections mentioned in the FIR provide for imprisonment for more than or equal to 7 years, the husband may hire a lawyer and apply for Anticipatory Bail (AB). After the recording of the statements of the husband and other accused, the police may close the FIR in 90 days and submit the charge sheet or the challan in court. After this stage, the role of the police is over.

CRPC 41A NOTICE. The role of a CrPC 41A notice: A CrPC 41A notice is a notice of appearance before a police officer. According to the Hon’ble Supreme Court of India’s decision in Arnesh Kumar vs the State of Bihar, the apex court has directed all police stations to serve CrPC 41A notices on the accused in FIRs of 498A or other sections. The police cannot arrest the husband if he complies with the terms of the notice. The notice complies with section 41 of the CrPC. The rationale for the apex court is to stop the arrest in 498A complaints and reduce the burden on the courts of granting bail. As a result, it is always advisable to comply with the terms of this notice to the greatest extent possible. Remember to request a CrPC 41A notice whenever you are summoned to the police station. If the husband does not comply with the terms of this notice, the police can seek written permission from superior authorities to arrest and detain him. 

Therefore it is clearly understood that the police have the authority to file a FIR and formally begin an investigation by serving a CrPC 41A notice. The police cannot arrest the husband as long as the conditions of the CrPC 41A notice are met. If the husband fails to comply or continues to comply with the terms of the notice, the police have the authority to arrest him with written permission from the superior authorities.