NO AUTOMATIC ARREST OF THE ACCUSED IN 498A IPC CASES

REPORTABLE

IN THE 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

JUDGMENT

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 air-conditioner,
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 non-fulfilment 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 – 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:

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
authorizes 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 authorizing 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 authorizing 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:

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 1(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 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;

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.

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.
 (CHANDRAMAULI KR. PRASAD)
…………………………………………J

(PINAKI CHANDRA GHOSE)

………………………………………………J

NEW DELHI,

July 2, 2014.