Case Study: Arnesh Kumar v. State of Bihar & Anr

By Mohammad Adil Ansari 16 Minutes Read

“Misuse of Section 498-A of IPC”

“No automatic arrest in cases filed under Section 498-A of IPC”

“Directions for Arrest and Detention”

Citation: (2014) 8 SCC 273

Date of Judgement: 2 July, 2014

Author: Justice Chandramauli Kr. Prasad

Bench: Justice Chandramauli Kr. Prasad, Justice Pinaki Chandra Ghose

Background Facts:

H (Petitioner) is the husband of W (Respondent). H married W on 1st July, 2007. Later W made certain allegations against H. The allegations levelled was that the mother-in-law and father-in-law demanded dowry of Rs 8 lakh along with a Maruti car, air-conditioner, television etc from W. According to her, when W brought it to the notice of H, he supported their demand and consequentially threatened to marry another woman. W also alleged that she was driven out of the matrimonial home as she did not fulfill the demand for dowry.  

H apprehending that W might file a complaint under Section 498-A of the Indian Penal Code, 1860 and Section 4 of the Dowry Prohibition Act, 1961 , filed for Anticipatory bail which was refused both by the Session Judge and the High Court. Therefore, he filed a Special Leave Petition (SLP) for the same in the Supreme Court.

Judgement:

The Supreme Court granted Anticipatory bail to H.

While examining the Special Leave Petition (SLP), the Bench addressed the issue of misuse of Section 498-A of the IPC. It acknowledged that there was a phenomenal increase in matrimonial disputes in recent years.

Following observations were made:

“Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 Statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.”

The Bench admonished the Police force for the arbitrary exercise of power of arrest granted to them by Section 41 of CrPC. It remarked:

“It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”

The Bench gave the direction that the requirements of Section 41 must be adhered to, at the time of arrest. If such requirements are properly implemented, that would significantly reduce the number of cases which come to the court for the grant of anticipatory bail.

Moreover, the Bench was also critical of the role of Magistrates with respect to the routine manner in which detention was ordered by them under Section 167 CrPC. They must not order detention mechanically and casually.  

The court reiterated the emphasis on need to maintain a balance between individual liberty and societal order while exercising the power of arrest. It needs to be kept in mind that “arrest brings humiliation, curtails freedom and cast scars forever”, therefore the power to arrest must not be exercised unless there are reasonable grounds for the same.   

Key Law Positions established in the case

  1. Can an arrest be made solely on the ground that the alleged offence happens to be non-bailable and non-compoundable?

    No.

    The arrest made by the police officer must be preceded by some investigation which must provide the police officer with a reasonable satisfaction as to the genuineness of the allegation.

    “We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so.”

    “The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation.”

    “Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised.”

  2. In offences punishable with imprisonment which may be less than 7 years or which may extend to 7 years with or without fine, does the existence of reasonable satisfaction on part of the Police Officer warrant him a license to arrest?

    No.

    In such cases, the Police Officer cannot arrest even if he has arrived at a reasonable satisfaction that such person had committed the alleged offence.

    The Police officer must further satisfy that arrest in such cases is NECESSARY for the purpose of “to prevent such person from committing any further offence; or for proper investigation of the offence; or to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing.”

  3. What judicial scrutiny must be done by the Magistrate while ordering detention under Section 167 of the CrPC?

    “The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.”

  4. What were the directions issued by the Supreme Court in the case of Arnesh Kumar v. State of Bihar?

Directions for Police Officers:

  • All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
  • All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);
  • The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
  • The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
  • Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
  • Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

Directions for Magistrates:

  • The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
  • Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

The court declared that the aforesaid directions shall “not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.”

Mohammad Adil Ansari

Founding Member & Editor in Chief @LegalWires.

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