what is 498A, Cognizable or Non-Cognizable

Posted by 498A_Crusader on January 2, 2008 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 including 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 bonafide for 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 present 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.