No automatic arrest in 498a, says Supreme Court - Arnesh Kumar Versus State of Bihar & Anr - 2 July, 2014

SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)

ARNESH KUMAR ..... APPELLANT
VERSUS
STATE OF BIHAR & ANR. .... RESPONDENTS


Supreme Court of India

J U D G M E N T

Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case
under Section 498-A of the Indian Penal Code, 1860
(hereinafter called as IPC) and Section 4 of the
Dowry Prohibition Act, 1961. The maximum sentence
provided under Section 498-A IPC is imprisonment
for a term which may extend to three years and
fine whereas the maximum sentence provided under
Section 4 of the Dowry Prohibition Act is two
years and with fine.
Petitioner happens to be the husband of
respondent no.2 Sweta Kiran. The marriage between
them was solemnized on 1st July, 2007. His attempt
to secure anticipatory bail has failed and hence
he has knocked the door of this Court by way of
this Special Leave Petition.
Leave granted.
In sum and substance, allegation levelled by
the wife against the appellant is that demand of
Rupees eight lacs, a maruti car, an airconditioner,
television set etc. was made by her
mother-in-law and father-in-law and when this fact
was brought to the appellant’s notice, he
supported his mother and threatened to marry
another woman. It has been alleged that she was
driven out of the matrimonial home due to
nonfulfilment
of the demand of dowry.
Denying these allegations, the appellant
preferred an application for anticipatory bail
which was earlier rejected by the learned Sessions
Judge and thereafter by the High Court.
There is phenomenal increase in matrimonial
disputes in recent years. The institution of
marriage is greatly revered in this country.
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.
Arrest brings humiliation, curtails freedom
and cast scars forever. Law makers know it so
also the police. There is a battle between the
law makers and the police and it seems that police
has not learnt its lesson; the lesson implicit and
embodied in the Cr.PC. 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.
Law Commissions, Police Commissions and this
Court in a large number of judgments emphasized
the need to maintain a balance between individual
liberty and societal order while exercising the
power of arrest. Police officers make arrest as
they believe that they possess the power to do so.
As the arrest curtails freedom, brings humiliation
and casts scars forever, we feel differently. 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. Despite this legal
position, the Legislature did not find any
improvement. Numbers of arrest have not
decreased. Ultimately, the Parliament had to
intervene and on the recommendation of the 177th
Report of the Law Commission submitted in the year
2001, Section 41 of the Code of Criminal Procedure
(for short ‘Cr.PC), in the present form came to be
enacted. It is interesting to note that such a
recommendation was made by the Law Commission in
its 152nd and 154th Report submitted as back in the
year 1994. The value of the proportionality
permeates the amendment relating to arrest. As
the offence with which we are concerned in the
present appeal, provides for a maximum punishment
of imprisonment which may extend to seven years
and fine, Section 41(1)(b), Cr.PC which is
relevant for the purpose reads as follows:
“41. When police may arrest without
warrant.-(1) Any police officer may without
an order from a Magistrate and without a
warrant, arrest any person –
(a)x x x x x x
(b)against whom a reasonable complaint
has been made, or credible information
has been received, or a reasonable
suspicion exists that he has committed a
cognizable offence 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,
if the following conditions are
satisfied, namely :-
(i) x x x x x
(ii) the police officer is satisfied
that such arrest is necessary –
(a) to prevent such person from
committing any further offence; or
(b) for proper investigation of the
offence; or
(c) to prevent such person from causing
the evidence of the offence to
disappear or tampering with such
evidence in any manner; or
(d) 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
(e) 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:
Provided that a police officer shall, in
all cases where the arrest of a person is
not required under the provisions of this
sub-section, record the reasons in writing
for not making the arrest.
X x x x x x
From a plain reading of the aforesaid provision,
it is evident that a person accused of offence
punishable with imprisonment for a term which
may be less than seven years or which may extend
to seven years with or without fine, cannot be
arrested by the police officer only on its
satisfaction that such person had committed the
offence punishable as aforesaid. Police officer
before arrest, in such cases has to be further
satisfied that such arrest is necessary to
prevent such person from committing any further
offence; or for proper investigation of the
case; or to prevent the accused 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 a witness so as
to dissuade him from disclosing such facts to
the Court or the police officer; or unless such
accused person is arrested, his presence in the
court whenever required cannot be ensured.
These are the conclusions, which one may reach
based on facts. 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. In fine,
before arrest first the police officers should
have reason to believe on the basis of
information and material that the accused has
committed the offence. Apart from this, the
police officer has to be satisfied further that
the arrest is necessary for one or the more
purposes envisaged by sub-clauses (a) to (e) of
clause (1) of Section 41 of Cr.PC.
An accused arrested without warrant by
the police has the constitutional right under
Article 22(2) of the Constitution of India and
Section 57, Cr.PC to be produced before the
Magistrate without unnecessary delay and in no
circumstances beyond 24 hours excluding the time
necessary for the journey. During the course of
investigation of a case, an accused can be kept
in detention beyond a period of 24 hours only
when it is authorised by the Magistrate in
exercise of power under Section 167 Cr.PC. 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.
Another provision i.e. Section 41A Cr.PC
aimed to avoid unnecessary arrest or threat of
arrest looming large on accused requires to be
vitalised. Section 41A as inserted by Section
6 of the Code of Criminal Procedure (Amendment)
Act, 2008(Act 5 of 2009), which is relevant in
the context reads as follows:
“41A. Notice of appearance before
police officer.-(1) The police
officer shall, in all cases where
the arrest of a person is not
required under the provisions of
sub-section (1) of Section 41, issue
a notice directing the person
against whom a reasonable complaint
has been made, or credible
information has been received, or a
reasonable suspicion exists that he
has committed a cognizable offence,
to appear before him or at such
other place as may be specified in
the notice.
(2) Where such a notice is issued to
any person, it shall be the duty of
that person to comply with the terms
of the notice.
(3) Where such person complies and
continues to comply with the notice,
he shall not be arrested in respect
of the offence referred to in the
notice unless, for reasons to be
recorded, the police officer is of
the opinion that he ought to be
arrested.
(4) Where such person, at any time,
fails to comply with the terms of
the notice or is unwilling to
identify himself, the police officer
may, subject to such orders as may
have been passed by a competent
Court in this behalf, arrest him for
the offence mentioned in the
notice.”
Aforesaid provision makes it clear that
in all cases where the arrest of a person is not
required under Section 41(1), Cr.PC, the police
officer is required to issue notice directing
the accused to appear before him at a specified
place and time. Law obliges such an accused to
appear before the police officer and it further
mandates that if such an accused complies with
the terms of notice he shall not be arrested,
unless for reasons to be recorded, the police
office is of the opinion that the arrest is
necessary. At this stage also, the condition
precedent for arrest as envisaged under Section
41 Cr.PC has to be complied and shall be subject
to the same scrutiny by the Magistrate as
aforesaid.
We are of the opinion that if the
provisions of Section 41, Cr.PC which authorises
the police officer to arrest an accused without
an order from a Magistrate and without a warrant
are scrupulously enforced, the wrong committed
by the police officers intentionally or
unwittingly would be reversed and the number of
cases which come to the Court for grant of
anticipatory bail will substantially reduce. We
would like to emphasise that the practice of
mechanically reproducing in the case diary all
or most of the reasons contained in Section 41
Cr.PC for effecting arrest be discouraged and
discontinued.
Our endeavour in this judgment is to ensure
that police officers do not arrest accused
unnecessarily and Magistrate do not authorise
detention casually and mechanically. In order
to ensure what we have observed above, we give
the following direction:
(1) 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;
(2) All police officers be provided with a
check list containing specified sub-clauses
under Section 41(1)(b)(ii);
(3) 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;
(4) 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;
(5) 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;
(6) 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;
(7) 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.
(8) Authorising detention without recording
reasons as aforesaid by the judicial
Magistrate concerned shall be liable for
departmental action by the appropriate High
Court.
We hasten to add that the directions
aforesaid 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.
We direct that a copy of this judgment be
forwarded to the Chief Secretaries as also the
Director Generals of Police of all the State
Governments and the Union Territories and the
Registrar General of all the High Courts for
onward transmission and ensuring its
compliance.
By order dated 31st of October, 2013, this
Court had granted provisional bail to the
appellant on certain conditions. We make this
order absolute.
In the result, we allow this appeal,
making our aforesaid order dated 31st October,
2013 absolute; with the directions aforesaid.
………………………………………………………………J
(CHANDRAMAULI KR. PRASAD)
………………………………………………………………J
(PINAKI CHANDRA GHOSE)
NEW DELHI,
July 2, 2014.

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