In case of matrimonial disputes between husband and wife, the wife if subjected to cruelty, can file a complaint to the police station referred to as Crime Against Women Cell (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 the fear of being arrested or going to jail on the basis of the complaint of the wife.
Here is the summary of the powers of the CAW cell and whether they can arrest the husband or not:
Complaint stage: The sole purpose of creating the CAW cell is to resolve the matrimonial disputes between the husband and the wife. Initially, the wife has to file a complaint to the CAW cell in writing where she accuses her husband and their relatives of cruelty during the marriage. The CAW cell tries 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 their relatives for an appearance at the CAW cell. This could be frustrating as a wife may file a complaint in a separate city or state and the husband may have to travel multiple times to attend dates at CAW cell. The husband may choose to ignore this step and wish not to comply, but it is generally advised to give full cooperation to the police. At this stage, efforts are made to do reconciliation between both parties and resolve the issues. CAW cell is not supposed to conduct a formal investigation of the crime. It can just do a reconciliation effort. If the reconciliation effort fails, they may proceed to the next stage.
FIR stage: At this stage, the CAW cell may send the complaint copy to a legal cell which may provide its inputs regarding the lodging of the FIR. With permission from appropriate superiors, the CAW cell may convert the complaint into an FIR and lodge it by itself or forward the same to the respective police station for lodging an FIR. At this stage, the formal investigation starts and an Investigating Officer (IO) may be appointed for the same. The IO may serve you a CrPC 41A notice for joining and cooperating with the investigation. It will be mandatory to attend dates at the police station at this stage. The IO may create pressure on both parties (especially the husband) to reach an amicable settlement. At this stage, upon the service of CrPC 41A notice, IO cannot arrest the husband or any other accused. It is not advisable to share your evidence with the police during the investigation as they may prepare the wife for trial. The husband may not even engage a lawyer at this stage if the CrPC 41A notice is complied with. If the sections mentioned in FIR have provisions of imprisonment of more than or equal to 7 years, only then the husband may engage 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 a period of 90 days and submit the charge sheet or the challan in court. After this stage, the role of the police is over.
Role of CrPC 41A notice: CrPC 41A is the notice of appearance before the police officer. According to the judgement by the Hon’ble Supreme Court of India in Arnesh Kumar vs the State of Bihar, the apex court has ordered direct all police stations to serve CrPC 41A notice mandatory to the accused in FIR of 498A or other sections. If the husband complies with the conditions in the notice, the police cannot arrest the husband. The notice is in compliance with section 41 or CrPC. The rationale behind directing such an order by the apex court is to stop the arrest made in FIR of 498A complaints and reduce the burden of granting bail by the courts. Hence, it is always advisable to comply as much as possible with the conditions of this notice. Remember to ask for CrPC 41A notice every time you are asked to visit the police station. If the husband fails to comply with the conditions of this notice, then the police can take written permission from superior authorities to make an arrest and detention.
In summary, the police have the power to register the FIR and formally initiate the investigation by serving CrPC 41A notice. As long as the condition of the CrPC 41A notice is complied with, the police cannot arrest the husband. If the husband fails to comply or fails to continue to comply with the conditions of the notice, then the police have the power to arrest with written permission from the superior authorities.
If you wish to learn more about the laws of different IPC sections or roles and powers of police, you may get in touch with us via our all-India helpline at +91 9811550662.
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