Threat of arrest in a dowry or 498A case: the first 48 hours

The offence

Section 85 BNS, cruelty by husband or his relatives (the old 498A IPC), up to three years. Often with Sections 3 and 4 of the Dowry Prohibition Act.

Arrest rule

Notice under Section 35(3) BNSS first; arrest only with recorded reasons. Arnesh Kumar (2014).

Protection

Anticipatory bail under Section 482 BNSS, Sessions Court Ghaziabad, for every person named.

Do not

Contact the complainant, delete anything, or sign a paper at the police station without counsel.

A dowry or cruelty complaint names a household, not a person, and the fear of arrest spreads through it on the same evening. The first two days decide a good deal: whether the family appears before the police on a footing of their choosing, whether the Sessions Court sees a clean record of conduct, and whether anything said or sent in those hours ends up in the case diary. This page sets out the order of work. The bail guide covers the courts and the sections behind it.

What the case is

Section 85 of the Bharatiya Nyaya Sanhita, the old Section 498A IPC, punishes a husband or his relative who subjects a woman to cruelty, which Section 86 defines as conduct likely to drive her to suicide or grave injury, or harassment to coerce an unlawful demand for property. It is cognizable and non-bailable. It rarely comes alone. The complaint usually adds Sections 3 and 4 of the Dowry Prohibition Act, 1961, sometimes Section 115 or 351 BNS for hurt and intimidation, and in a separate proceeding an application under the Protection of Women from Domestic Violence Act, 2005 and a maintenance claim under Section 144 BNSS.

In Ghaziabad the complaint commonly starts at the Mahila Thana or at the local police station, and before registration the police often call both families to the Family Counselling Centre. That stage, between complaint and FIR, is where most of the first 48 hours are spent, and it is dealt with on the police are calling page.

The first evening: papers and silence

Before anything is filed, the family does three things. It collects the marriage papers, the photographs, the list of gifts given and received, the rent agreement or ownership papers of the matrimonial home, and every message, email and call record between the spouses and between the families. It writes a dated timeline of the marriage, the separation and the demands alleged, in plain words, from memory, before memory is shaped by the FIR. And it stops talking: no calls to the wife or her parents, no visits, no messages through relatives, no posts. A complaint followed by a threatening call becomes two cases, and a conciliatory call is read as an admission.

Nothing is deleted. Chats that look bad out of context look worse missing, and a phone wiped after a complaint is a fact the prosecution will use. The phone goes to counsel to be read, not to a nephew to be cleaned.

Who is named and why it matters

The FIR will name the husband, and it will often name his parents, his brother, his brother's wife and a married sister who lives in another city. The application for anticipatory bail is prepared for each of them, because arrest does not wait for the court to sort out who was where. At the same time, the application sets out, for each relative, where they lived during the marriage and what the complaint actually says against them. Courts have for years discouraged the practice of implicating every relative in a cruelty complaint, and a sister who lives in Pune with her own family and is accused of nothing specific is the first person the court protects.

The notice, and what to do with it

Section 85 BNS carries up to three years, so it falls within the band of offences, up to seven years, where Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, binds the police. They issue a notice under Section 35(3) BNSS to appear, and may arrest only if the person fails to comply or if they record reasons under Section 35(1) why custody is needed. A Magistrate who authorises detention without such reasons acts against the Supreme Court's direction, and the order can be challenged.

The notice is complied with, on the date, with counsel. The person appears, gives a written statement prepared in the chamber, hands over copies of documents against a receipt, and signs nothing else. The appearance is recorded: the date, the officer, the time in and out. That record goes into the bail application as proof of cooperation, which is one of the four things Section 482(2) BNSS tells the court to weigh.

Anticipatory bail: filing before the arrest

The application under Section 482 BNSS goes to the Court of Sessions at RDC, Ghaziabad. It can be filed on a complaint under enquiry; the section asks for a reasonable apprehension of arrest, not an FIR. It annexes the complaint if a copy can be had, the notice, the timeline, the papers that show where each applicant lived, and the record of appearance before the police. On the first date the court can pass an interim order that no arrest be made until the application is decided. The full procedure, the grounds and the conditions are on the Section 482 BNSS page.

If the fear is immediate, with the police at the door or a date for arrest already mentioned, the application is listed the same day on mention. The urgent listing page explains how that works and what the chamber needs the night before.

The mistakes that cost bail

• Going missing. A person who does not appear on notice and cannot be found at his address has handed the prosecution the flight risk head, and a proclamation under Section 84 BNSS ends the anticipatory bail route.
• The counter-complaint filed in a hurry. A complaint against the wife, drafted in anger on day two, is read as retaliation. Where there is a real grievance, it is filed on advice, with the papers, at the right time.
• Paying through a relative. Money sent to the complainant's family after a complaint is read as an admission of the demand it is meant to end. A settlement is written, signed and placed before a court.
• Lying about antecedents. An earlier case, even a closed one, is disclosed in the application. The police report will mention it anyway.
• Signing at the police station. No blank paper, no statement drafted by the officer, no undertaking. A written statement is prepared in the chamber and handed over.

After the order: the case and the settlement

Anticipatory bail stops custody, not the case. The case goes on to the charge sheet and trial unless it ends another way, and in matrimonial disputes it usually does. Most 498A cases in Ghaziabad close by a settlement that includes a mutual consent divorce, withdrawal of the maintenance and domestic violence proceedings, and a petition to the Allahabad High Court to quash the FIR on compromise. That route is set out on the FIR quashing page. Until then the bail conditions are kept, every date is attended, and the bail guide explains what happens if any of that slips.

Read next

• Anticipatory bail under Section 482 BNSS in the Ghaziabad Sessions Court
• The police are calling you about a matrimonial dispute: what to do before the FIR
• Urgent bail hearing tomorrow morning in Ghaziabad

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